The latest existential drama to engulf the SNP saw a new development this week as the so called ‘Plan B’ motion received approval from the National Secretary to be debated at next month’s virtual party conference. The motion reflects the demand from an increasingly vocal wing of the party that the Scottish Government pursue a legal route to assert its right to hold a binding independence referendum should they not obtain the approval necessary for a Section 30 transfer of powers. Should such a challenge fail in the courts, the motion proposes that a pro-independence majority in the 2021 Holyrood elections should be sufficient grounds to commence the (presumably now unilateral) dissolution of the union.
Broadly, the substance of the debate around the viability of such a strategy has been rather thin, hampered by its co-option as merely another front in the intra-party culture war by reactionary polemicists such as Wings Over Scotland. As a result, there has been very little opportunity for a sober discussion on the merits, viability and risks of adopting the legalist route to independence. Indeed, such a tactic has many attractive elements –– namely its ability to provide a peaceful, smooth and, as the motion’s author Angus MacNeil argues, “legitimate” means of democratic self-determination. The argument that its proponents make –– that the right to hold a referendum derives from the sovereignty of the Scottish people and their parliament alone and therefore cannot be restricted by the UK government –– is one that should be broadly accepted by all those who support the principle of self-determination. In a sense the motion is also an attempt to synthesise competing desires within the SNP: the demands of the membership for the party to adopt a more confrontational approach to the British state and the leadership’s determination that the process of separation remains a constitutional one. However, with the stakes of such a confrontation being as high as they are, it is insufficient to examine such proposals simply on the terms of their intellectual merits –– we must also consider questions of strategy.
If we are permitted to analyse them from a self-interested point of view, it could be said that events in Catalonia this week have provided a cautionary tale of the perils of legalism. In its latest attempt to suppress the Catalan people’s right to self-determination, on Monday Spain’s highest court upheld the previous verdict of its puppet body in Barcelona and removed the nation’s democratically elected President Quim Torra. The was ostensibly the result of Torra displaying banners on government property expressing solidarity with pro-independence leaders imprisoned by Spain in the wake of the “illegal” 2017 referendum. Torra’s removal has been met with unrestrained enthusiasm by the political formations of the Spanish state, with the comprador liberals of Ciudadanos celebrating the victory of “justice” and the soft-francoist conservatives of the Partido Popular (PP) declaring “Democracy and the rule of law win”. What must be understood is that these references to ‘justice’ and ‘rule of law’ are made without the slightest tinge of irony. While, to most people, the invocation of any concept of justice to excuse the ouster of a democratically elected head of state over what essentially amounts to a dispute around what constitutes appropriate decoration is an absurd act of hypocrisy on its face, the use of legalistic language to rationalise the crackdown on the Catalan independence movement is a critical component of the Spanish state’s strategy.
In Catalonia, the law, constitution and judiciary have become the key weapons in the arsenal of anti-democracy. The Catalan government’s attempts to engage in good faith with the courts after the PP’s challenge to the democratically-approved Statute of Autonomy in 2010 met with both legal and strategic failure. Not only did the Constitutional Court strike down most of the key provisions of the statute, its decision gave legal force to the principle of the ‘indissoluble unity of Spain’, essentially rendering any threat to that unity (which a separatist movement undoubtedly represents) a criminal enterprise. In the years since, the courts have confirmed their status as explicitly political institutions, asserting the power to make political judgements which offer no political recourse to those who dissent from them. During the violence in the wake of the 2017 independence referendum they played this part to perfection, giving the Spanish state both an excuse for its authoritarian overreach (the independence protesters were ‘breaking the law’, the leaders branded as ‘traitors’), and cover for the political nature of their intervention (the Guardia Civil were not acting on behalf of the political interests of the state, but on behalf of the courts and constitution). It was a double move that made every action of the separatist movement, no matter how reasonable, illegal by the fact of its existence and therefore subject to the full force of state repression.
There is a reflexive tendency for those ensconced in ‘Western’ legal traditions to wax lyrical about how concepts such as judicial independence represent the final guarantor of democracy. However, recent events in Hungary, the US, Brazil and Catalonia have shown how, in an authoritarian turn, western judiciaries are far more likely to act in unity with the state rather than in opposition. Even in the rare occasions where the courts do offer resistance, they rarely prevail in a conflict with a reactionary state apparatus acting on behalf of an engaged base. Poland’s ruling right-wing party (named, again without a hint of irony, ‘Law and Justice’), demonstrated the limits of judicial power when they ran roughshod over European and domestic jurists in an effort to subordinate the nation’s highest court to the will of the government. All over the world, laws and legalisms are proving themselves poor allies, and often willing adversaries of democracy.
This is where the dangerous contradiction inherent in MacNeil’s ‘legitimacy’ argument comes to bear. While it could provide a path to legitimacy for an independent Scotland, the legalist tactic also carries with it the huge and perhaps insurmountable risk of, should it fail, legitimising the British government’s refusal to grant a referendum by endowing it with the finality of judicial imprimatur. With one stroke of a pen, any attempt to hold a vote on independence could be rendered illegal, anyone trying to facilitate such an action could be made a criminal and any authoritarian crackdown by the state against them could be justified in the name of enforcing ‘law and order’.
In response to this possibility, Wings suggests that an appeal to a different kind of authority must be made. Coming up for breath in between conspiratorial fan fiction on the SNP leadership, the blogger asserts that such a clampdown by the British state would demonstrate to the international community that Scotland is “effectively being held prisoner in clear contravention of the UN charter”, and therefore would legitimise any agitation by the people/state to resist it. Of course, even a cursory survey of the inaction from the European and international ‘community’ in response to the crimes of the Spanish state should lay to rest the potential viability of such appeals. Indeed it is telling how Wings, ever one to torture an idea to its end, acknowledges that it is likely that more extra-legal tactics will inevitably be required –– the same tactics that will be made far harder to prosecute if the state’s potentially violent resistance is legitimised by the failure of the same legal strategy he espouses.
Let us turn to the character of the opposing force in Scotland’s struggle for self-determination: the British state. The reality is that there has been a palpable authoritarian turn in the actions of the UK government. Increasingly, the Conservatives have shown a willingness to test the limits of legal resistance to central political control. These past weeks have seen several such provocations: the prohibition on using materials in school produced by anti-capitalist organisations, the passage of an EU withdrawal bill that is in clear violation of international law and a bill that enshrines total immunity for agents of the state (surmised adeptly in my comrade Connor Beaton’s article this week). Such attempts to centralise and subordinate legal authority under UK government control are nothing new, however, even if the crudeness and hack-handedness of the perpetrators may well be. One must simply recall the repeated attempts of the Blair government to slickly erode basic rights under the guise of anti-terror legislation – most of which were enthusiastically supported by the judiciary – to understand that legal overreach is the default position of the British state, not the exception.
Any attempt to attempt to assert Scotland’s right to hold a binding referendum through the courts will therefore, by the very nature of its legalism, be subject to the logic and processes of a state slouching towards reactionary authoritarianism. It must surrender itself to the fact that, despite the distinct nature of Scots law, the Union remains a reserved matter that is likely to see final adjudication at the UK Supreme Court. While, in this author’s non-expert opinion, it is a huge risk to assume that the court would not act reflexively in the interest of the British state, even a victory could quickly prove to be hollow. One of the main proponents of the legal Plan B tactic, Edinburgh South West MP Joanna Cherry, may point to her victory at the head of a group of anti-Brexit parliamentarians at the Supreme Court last year over whether the parliament had been legally prorogued as an example of the potential that judicial recourse has to resolve the conflict with the UK government in Scotland’s favour. Yet, if one measures the success of the legal route in terms of how it fulfilled its strategic aim –– stopping Brexit, or at least making it more democratic, there can be no grade awarded above complete failure. This was not a result of what Wings describes as “cheating”, but because it ran into the brutal end point of the law expressed in the unwritten British ‘constitution’: parliamentary (and therefore, in an era of massive Tory majorities, governmental) supremacy. Such supremacy, wielded by an increasingly authoritarian administration, is likely to make even a favourable court decision completely useless to the strategic ends of independence. Johnson may simply say “No” and rely on his large majority in the Commons to stick by him no matter the consequences. The past year has demonstrated that they are likely to do exactly that, and that he may well have the support of a great deal of the opposition benches as they gradually capitulate to the spectre of English nationalism.
The independence movement therefore finds itself divided between two competing legalisms: the legalism of the SNP leadership that resists any confrontation on constitutional grounds, and the legalism of the ‘Plan B’ proponents that seeks confrontation on solely constitutional grounds. This obsession with adherence to the formal content of the law, rather than a contention with its socio-historical function, is what political philosopher Judith Shklar identifies as the key trap of traditional legalist thinking. It is an ideology that does not present itself as such, yet still reflects the worldview of what Shklar calls “the inevitable perspective of the practitioner of ‘mature legal systems’”, beyond which Cherry and her professional managerial class attainers in the SNP leadership can envision no alternate theory of change. Even the more ‘populist’ tribunes of the tactic, such as former imperial bureaucrat Craig Murray, cannot expand their imagination beyond this legalist horizon. Though he argues that the British state has no place in consideration of Scottish matters, his only recourse is to the same woolly argument cribbed by Wings and framed in the terms of international law; as though these laws and institutions were not crafted to perpetuate the same interests as those secured by the British constitution. This mode of thinking is not a symptom of disloyalty or duplicity, but of historical circumstance –– as James Connolly reminds us, “the fact of so many generations having lived under the rule of law – although that law may have been but the self-preserving ordinances of a tyrannical class – has given to the term ‘law’ a commanding influence over the minds of men which even the friends of progress feel compelled to avail themselves of.”
What, therefore, of the prospect of an alternative to a legalist approach? I do not pretend to speak for the rest of my comrades on the left of the independence movement, but one can perhaps begin to sketch out what the silhouette of a republican socialist strategy might look like. Such a response contends that the right of the Scottish people to self-determination derives not from the law of the British state or from international law, crafted by capitalists and empowered by monarchs, but from the democratic and legitimate right of the working classes to organise themselves in whichever way they deem fit to win their economic, political and social liberation. The appeal for nationhood must therefore be made not to the power of ruling classes of Britain expressed in law, but to power of the people through their organisation and agitation. Opposition to the legalist strategy is not an endorsement of a lawless state, but merely an assertion that to submit to the logic of British law now is to lend it credibility when it is inevitably weaponised as an instrument of oppression.
It should be a source of deep concern for the pro-independence left that discussion of these issues is being led by the loudest and most reactionary elements of the independence movement, whose politics are entirely removed from the class conflicts that define that contours of the modern Scottish nation: poverty, land reform, economic democracy, environmental and social justice. The time has come for a discussion that frames the political struggle in the interests of popular power, which Connolly describes as “the weapon of popular emancipation, the only power which would show in the full light of day all these class antagonisms and lines of economic demarcation now obscured by the mists of bourgeois patriotism”. It is a discussion that must centre those with the greatest experience and capacity to carry out the action necessary to effectively resist the legalist dominance of the British state: the oppressed classes whom, out of necessity, have already organised for the sake of their own liberation.