I don’t watch Channel 4 News very often these days, but I gather Ciaran Jenkins is reasonably highly regarded and believed to be fair and honest – which makes yesterday’s incident all the more inexplicable. I’m not going to put it down to unionist bias or sloppiness – he just seems to have misunderstood a fundamental point and as a result he’s gone down a completely blind alley. Almost every syllable of this question he posed to Nicola Sturgeon (presumably while picturing himself as a fearless seeker of truth) was misconceived and based on a totally false premise.
“First Minister, you have always said that a referendum must be lawful and legitimate. Do you now level with the Scottish people and accept that the de facto referendum you were proposing would not be lawful because the Supreme Court have ruled on legality and would not be legitimate because the opposing side do not give their consent?”
I mean, where to start? If Mr Jenkins had made that as a direct statement to camera rather than framing it as a question, there’d be an open and shut case for a complaint to Ofcom on the grounds of factual inaccuracy, and on two separate counts. Firstly, he’s suggesting that the SNP putting an outright commitment to independence in their election manifesto (which is what a de facto referendum amounts to) would be literally against the law – an absolutely barking mad proposition in any parliamentary democracy. Good luck to him if he tries to call in the fuzz. Secondly, he’s clearly asserting that the Supreme Court’s ruling yesterday extended to elections used as de facto referendums, which is also categorically untrue.
The ruling was very specifically restricted to the limitations of the powers of the Scottish Parliament. The whole point about a plebiscite election is that it’s got nothing whatever to do with the powers of the Scottish Parliament. Nicola Sturgeon is not attempting to use her powers as First Minister to turn a Westminster election into a referendum – she’s simply stating what will be in her own political party’s Westminster manifesto, which is ultimately a private matter for that party, and is certainly not within the province of the Scotland Act or of any court. The SNP could just as easily attempt to use an election to win an outright mandate for independence if they were not currently in power at Holyrood – just as Sinn Féin did successfully in 1918 when they were not merely an opposition party, but actually a complete outsider party.
And as for Jenkins’ notion that the SNP can’t put an outright mandate for independence in their manifesto because other parties don’t “consent” to it, you’d have to begin to wonder if he’s a bit of a novice in respect of general elections, because the principles are straightforward and generally well-understood. You put a proposition in a manifesto to find out if the people consent to it. If they don’t, the proposition falls, but if they do, there’s no veto by politicians on the losing side – unless you live in a sham democracy, of course.
The essence of the Supreme Court ruling yesterday was that the UK Parliament has exclusive control of matters pertaining to the constitution and the union between Scotland and England. But that parliament is directly elected by voters – including by voters in Scotland. Any suggestion that it is in any way “illegal” or “illegitimate” for a Scottish political party to ask Scottish voters to use a UK Parliament election to give a view on matters that are under the exclusive control of the UK Parliament is just the most hopelessly muddled thinking imaginable – and it’s also (hopefully unwittingly) colonial thinking, because it presumably wouldn’t even cross Jenkins’ mind to suggest that parties standing in England can’t put constitutional matters before English voters in UK Parliamentary elections.
There was a great deal of talk yesterday – from unionist politicians, journalists and even Nicola Sturgeon herself – about the absolute imperative of adhering to “the rule of law and democracy”. But it’s unfortunately a side-effect of the court ruling that those two concepts have now diverged to some extent, and that by adhering to one you may be undermining the other. That doesn’t mean the rule of law isn’t important and it certainly doesn’t mean that democracy isn’t important, but it’s pointless to deny that there is now a tension in the United Kingdom between the two – and that’s something both the Supreme Court justices and the framers of the 1998 Scotland Act will have to take ownership of. Although Jenkins was totally wrong in suggesting that unionist politicians have a veto on what goes into the SNP manifesto, it was only possible for him to make that mistake in the climate the Supreme Court and UK Government have now created, where the rule of law is about cracking down on democracy rather than upholding it.
Is it just me, or are unionist politicians reacting as if they’ve won a referendum, rather than just prevented people from voting? It’s like they *literally* cannot distinguish between those two rather different concepts.https://t.co/rk5mYBRERf
— James Kelly (@JamesKelly) November 23, 2022
