Institutional disobedience could be the way forward for independence

There’s a very interesting and important article in The National this Sunday by the much respected writer and commentator Neal Ascherson about charting a way forward for the independence campaign and breaking through the current constitutional impasse. His argument follows from two key points. Firstly, the idea of independence as a plausible and realistic constitutional option for Scotland is now deeply ingrained in the mainstream of Scottish politics and wider national culture. It’s not going to go away. Despite the fond hopes of British nationalist politicians who insist that they’re not nationalists because they’re British, Scotland is never going to return to the days when Scottish independence was a fringe idea that could easily be sidelined and ignored.

The second point is the key lesson from the 2021 Scottish Parliament elections is that the Westminster government and the anti-independence parties will not facilitate another independence referendum even when, as in 2021, the people of Scotland voted for a Scottish Parliament with a significant majority of pro-independence MSPs who were elected with unequivocal mandates for another independence referendum following an election campaign which was dominated by the issue of whether to hold another independence referendum. The parties opposing a referendum lost that election, but still managed to get their way anyway and were enabled in their democracy denying theft of the will of the people by a shameful Scottish media which not only failed to hold the anti-independence parties to account but actively colluded with them in denying the outcome of the election and permitting them to shift the goalposts after the results were in.

The entire sorry episode proved that the Westminster government and the British establishment will only ever recognise the outcome of democratic votes in Scotland when those votes deliver outcomes which are to the liking of the anti-independence parties. No Prime Minister will ever agree to a Scottish independence referendum if there is a realistic prospect of a Yes vote.

What this means for independence is that Scotland cannot expect Westminster to facilitate another independence referendum or to say – here you go then – when the people of Scotland vote to have one. Westminster and its allies will find some reason, no matter how spurious for denying that the people of Scotland really expressed their democratic desire to have another independence referendum.

Scotland won’t achieve independence by playing by Westminster’s rules, not when those rules are stacked against us and when Westminster feels it is at liberty to rewrite them after the fact of a vote in order to ensure that independence is forever out of reach. In order to get Scottish independence, the pro-independence parties are going to have to be much more assertive, confrontational even, and ditch the pretence that we are dealing with principled opponents who play by the established rules.

Ascherson suggests that a Scottish Government with a pro-independence majority should adopt a strategy of institutional disobedience. He writes: “”It means that a Scottish government might enact – and deliver – legislation which the Scotland Act forbids as “reserved” – outwith the powers of the Scottish Parliament. In the same spirit, a Scottish government might decide – after approval by Holyrood – to impede or block the application of Westminster measures which the Act reserves to the United Kingdom parliament.

He adds: “A popular Scottish government, committed to ending the Union, should learn to behave “as if” Scotland were already independent. (As in some ways it already is. Devolution is the big machine with a row of shiny untouched levers.)”

This lesson is in fact fundamental to civil rights movements around the globe, and the Scottish independence movement is a struggle for the collective civil rights of Scots as a nation, whether they are native born or are Scots by choice. The first step to achieving equality is to act as though you are already equal. You do not consent to or collude in your own oppression. Power is never given, it has to be taken.

I came out as gay in the 1980s during the height of the aids pandemic, homophobia was widespread and homophobic laws were in force. When I started living with my late husband – long before he could legally be recognised as such – it was illegal for us to host overnight guests in our home. The law at the time said that homosexuality was legal only in private, and private was defined as there being two and only two people on the premises. Naturally that was not a law that we obeyed. Neither did we obey the law prohibiting same sex marriage, we had a humanist ceremony and got married anyway, a full decade and a half before the UK recognised civil partnerships. We did what we could to create legal ties to one another, of course our marriage was not legally recognised but crucially we acted as though we were married. You don’t allow discriminatory laws to define your behaviour.

In the same way a pro-independence Scottish Parliament, elected by the people of Scotland to enact the national sovereignty of the people of Scotland should refuse to be bound by UK Government laws which the people of Scotland have rejected.

Scotland is not Catalonia, as Ascherson points out this means it’s unlikely that we’d ever see a million people taking to the streets of Edinburgh to demand independence. But then this sort of mass demonstration has already taken place in Catalonia to no effect. The truly massive demonstrations against Blair’s war in Iraq in the early 2000s had no influence at all in changing British Government policy. However Scotland is unlike Catalonia in another crucial respect, Scotland is a party to a voluntary union with the Kingdom of England and its territories (which include Wales and Northern Ireland). The fact of Scottish nationhood was not extinguished by the Treaty of Union, in fact its continuation was guaranteed by it. Westminster still maintains that this is a voluntary union, even if the anti-independence parties refuse to say how Scotland can put that to the test.

Well if they won’t say so, then it’s up to those of us in Scotland who believe in Scottish self-determination to do it. As Neal Ascherson notes, this course of action would inevitably lead to a constitutional crisis and a head on collision between the Scottish Government and Westminster, but that could be precisely what is needed to break through the current impasse and focus the minds of the people of Scotland about the myriad ways in which our country is being held back and exploited by Westminster governments of whichever stripe. We don’t need to wait until independence to work as though we are in the early days of a better nation, indeed achieving independence depends on acting pre-emptively and starting to do so now.

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