The Bells They Ring Backwards
Updated: Jan 11, 2022
“National Independence for Scotland as an immediate necessity and overwhelming priority achieved by democratic means through a vote of people resident in Scotland.”
The ALBA Party’s initial strategy was for the Holyrood election to produce a pro-independence super-majority which is defined in the Scotland Act as a two-thirds majority. This would have given the pro-independence parties at Holyrood the power to call a plebiscite election on a date of their choosing and give them the power over the franchise and the voting system in that election.
Sadly, for Scotland, the Holyrood election produced more of the same.
The SNP has been promising to hold an independence referendum since 2016, and now their latest promise is 2023, but it is already too late.
The timeframe to complete the process means that Sturgeon would have to currently be in negotiations with Johnson for a section 30 order, for there to be any chance of an independence referendum in 2023.
This is because the process of legislating for and organising an independence referendum via the section 30 route takes over two years.
Section 30, refers to section 30 of the Scotland Act which is the provision whereby Westminster can devolve reserved powers to Holyrood for a specified time. This is the mechanism that was employed to enable an independence referendum in 2014.
Alex Salmond started negotiations for a section 30 with David Cameron in January 2012 and the Edinburgh agreement was signed in October of that year. That is 9 months elapsed time, there is no reason to suppose that negotiations with the current UK Prime Minister would be any quicker.
The negotiations concern the question, the franchise, the voting method, and the timing of the referendum. Salmond got everything he wanted out of his negotiation. Probably for two reasons; Cameron was sure independence would lose and Cameron thought he had won a victory by keeping ‘Devo Max’ off the ballot paper. But he’d actually fallen for a clever Salmond trap.
Once the leaders have agreed on the deal. The section 30 order has to pass both Houses of Parliament at Westminster, this is done by statutory instrument which for the 2014 referendum took 4 months elapsed time.
The section 30 order transfers the powers to hold a referendum, so the process in Holyrood cannot begin until the Westminster process completes and power is transferred.
At this point, the process moves to Holyrood.
The Scottish Government has agreed that the question on the ballot should be re-tested, they initially asked the Electoral Commission to test the question but shortly thereafter reversed the request due to the pandemic. The Electoral Commission takes a minimum of three months to test a question.
Then the independence referendum bill has to pass Holyrood, this should be uncontroversial as most factors have been agreed upon. The Referendum (Scotland) Act provides a framework for referendums to be held but primary legislation is still required. The bill for the 2014 referendum took 6 months to pass Holyrood so it is likely the time frame would be the same.
The Electoral Commission requires a minimum of 6 months to prepare for a referendum, this is because they have to register participants in the referendum and this takes time. The Electoral Commission cannot start the process until the Independence Referendum Bill is law.
Then, of course, there is a campaign period in 2014 the campaign period was almost 4 months. The campaign period could be a lot shorter this time but 10 weeks is the minimum period recommended by the Electoral Commission.
Other than testing the question, the process is sequential.
It should be obvious that there will not be an independence referendum in 2023.
Every SNP MP and MSP knows this.
The SNP manifesto also includes an option to hold an independence referendum even if Westminster refuses a section 30 order.
However, to start that process Westminster must first refuse to grant a section 30 order. Therefore, to have any chance of meeting a 2023 timetable, the section 30 order would have to be already requested with a deadline for Westminster’s response so that Holyrood can initiate the referendum process.
Once the deadline expired with no section 30 forthcoming, Holyrood can pass the Independence Referendum Bill.
Any bill passed by Holyrood can be challenged as outwith Holyrood’s competency. There are two mechanisms to allow the challenge; by Westminster under section 33 of the Scotland Act or by a private citizen(s) under section 29 of the Scotland Act. My guess is a group of private citizens will challenge the bill.
The Independence Referendum Bill cannot become law until the issue of competency is resolved. If we take the Wightman case which concerned whether the UK had the right to unilaterally revoke article 50 (intention to leave the EU) that case was expediated because of the urgency of Brexit but still took over a year.
There is of course no certainty that Holyrood would prevail, as power devolved is power retained and as we saw with the Internal Market Bill Westminster can simply change the law to ensure they win their case.
If Holyrood does win the case, the Electoral Commission will require 6 months after the bill becomes law and there is the 10 week minimum campaign period. It should be obvious that there is no time to hold an independence referendum in 2023.
The SNP MPs and MSPs know this. Sturgeon knows this so why is she pretending that an independence referendum will be held in 2023?
So, what is to be done?
We need to take the opportunity of the local authority elections to move Scotland forward on independence and to put pressure on Holyrood to act.
The ALBA policy on independence is -
“ALBA believes that Scottish independence is an overwhelming and immediate priority for the people of Scotland and notes with growing concern the failure of the Scottish Government to implement successive electoral mandates from the Scottish people to progress this aim. ALBA demands that the Scottish Parliament instruct the Government to commence independence negotiations with Westminster. If the British Government refuses to engage, or even accept a referendum process, then we propose a cross party campaign of parliamentary action, peaceful popular mobilisation, legal moves in the domestic and international courts and diplomatic initiatives to enforce the sovereign will of the Scottish people. After the local elections next May there should be called an independence convention comprised of all elected representatives of the Scottish people to co-ordinate and give legitimacy and democratic authority to the ongoing independence campaign.”
The ALBA Party will stand on this policy in the May local authority election and post-election ALBA will call an independence convention.
The convention will consist of elected members and will have democratic legitimacy. This is important as over the last seven years we have had a variety of self-selecting independence groups, which have achieved very little other than soaking up cash from the pro-independence movement.
The convention decisions will have weight and its’ democratic status would be comparable to Holyrood.
The ALBA Party has already developed policies in important areas of currency and membership of the European Free Trade Association (EFTA). These policies and others may be adopted by the convention and the convention will feed these fully researched and agreed policies into the prospectus for independence to be presented to the Scottish people.
The most important role of the convention would be to define the pathway to independence. There are many possible routes to independence. The people of Scotland can start on that path by voting ALBA in May.
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