Disruption and the power of right over might of Section 35

It was the then editor of The Herald, Harry Reid, who was instrumental in getting this 1985 novel published. He championed Jenkins as an unjustly neglected, complex and wide-ranging writer – and the book fully bears that out. It is not just a fictionalised exploration of one man’s involvement in the dramatic division of the established Church in the 19th century but also an examination of conscience and moral frailty within a divided and unequal society.

Seen in the broadest of lights and setting theology aside, the Disruption was a protest in favour of democracy and against the arrogant exercise of the rights of property and class which were being supported by the courts. Over a third of the Kirk’s ministers walked out, leaving behind their livings, their manses and their colleagues, doing so, as their leader Dr Chalmers, said “upon a principle”.

READ MORE: The Tories are emboldened and won’t hesitate to wield Section 35 again

I am not a Presbyterian, but when in 1998 I was asked by Harry Reid to write six pieces for The Herald about personally significant places in Scottish history, I chose St Andrew’s Church in Edinburgh’s George St – the site of the Disruption Assembly – as one of them.

It is therefore not surprising that my thoughts this week turned to the Disruption when trying to contain my anger at the actions of the Secretary of State Against Scotland in using Section 35 of the Scotland Act for the first time.

Not surprising because the issue is, if not exactly the same, then very reminiscent of it. Section 35 is an arrogant assertion of power which, as with the Disruption, must be resisted.

Of course, Section 35 isn’t actually about Holyrood. It is about Westminster’s insistence that its petulant preference must always override whatever any other body decides, if it chooses to do so.

There is no shadow of a doubt that this is a political act by Alister Jack and those around him. They believe that they can split the independence movement whilst restoring the right of Westminster to have the final word on each and every matter.

They despise the idea of a Scottish parliament of any sort, and are determined to put even the modest gains of devolution into reverse.

READ MORE: Joanna Cherry: Gender bill might well have faced legal challenge in an indy Scotland

Whatever your position on gender recognition, Joanna Cherry is right to say that any continuing argument about it has to be resolved by Scottish democracy, and if necessary, by Scottish courts. In an independent country within the EU, decisions by Scotland’s Parliament would, of course, be subject to the national and international rule of law. Under that settlement, those who felt aggrieved about any legislation would be fully entitled to pursue their objections within the established legal process.

That is demonstrably not the case now, for a Section 35 legal challenge to the UK Government will be a completely different thing. It will be a matter of judicial review, examining not perceived flaws in the legislation nor any contested issue of rights but solely the very narrow question of whether the Secretary of State Against Scotland has exercised in a “reasonable” fashion an utterly unreasonable and undemocratic veto which should not exist.

The example of the Disruption suggests that, in the end, the right way to defy the arrogant imposition of an out-of-date law (and Section 35 is rooted in the same backwards-looking constitutional past that has led to the disaster of Brexit) is to challenge those using it and seek the support of the people themselves.

But choosing to do so when the cost of living crisis is so cruelly bearing down upon the most vulnerable would be a very difficult decision to take, and ultimately an impossible one, given that it would almost certainly make Douglas Ross Scotland’s first minister.

The Scotland Act and the Scottish Parliament’s own Standing Orders require a two-thirds majority in order to dissolve the Parliament and call an immediate election. Consequently, as the combined SNP/Green vote does not meet that threshold, if the current Scottish Government resigned, there would have to be a vote in Parliament for a new first minister. Only if one was not elected would a dissolution follow.

However, Rule 11.10 of the Standing Orders says that the election of a first minister needs only a simple majority. There is no option to vote against a candidate – only to vote for or abstain. So if Douglas Ross (below) was nominated, he would win, having the support of his 31 members, beating any Labour or Lib Dem who in total would have only 25. The 72 SNP/Green abstentions would not count.

Admittedly, Ross as FM could not then successfully nominate ministers – that is a yes/no vote – but the imposition of Section 35 shows that the Tories, still with an overall majority at Westminster, could and would legislate there to allow Ross to rule until the next scheduled Scottish election in 2026 or, which failing, to bring the whole thing down with his connivance.

No one should contemplate that disaster and the suffering it would bring. Accordingly, though many of us would dearly like an election in Scotland sooner rather than later, where we are now actually strengthens the argument for the next Westminster election being treated as a plebiscite to decide the issue of independence.

The case for independence, strong as it was, is even stronger after the last few days. But the national movement must, as that old golfing saying has it, play the ball where it lies, not where we would like it to be.

Fortunately, we have a historic parallel to guide us. The Disruption showed that in the end, the power of the people – the power of right over might – does win out.

As it will in this generation too.