The philosophy of politics highlights the dilemmas of nationalist identity

A Glasgow employment tribunal, presided over by Judge Frances Eccles, ruled this week that he could make a case under the Equality Act 2010. This allows certain “philosophical and religious beliefs” to be understood as “protected characteristics”. That is, they can’t be taken into consideration as grounds for dismissal or harsh treatment.

The MoD has appealed to have the decision reconsidered and revoked.

READ MORE: MoD to appeal landmark ruling on independence being protected by equality law

Judge Eccles’s ruling saw fit to regard McEleny’s deep commitment to Scottish independence as having “sufficiently similar cogency to a religious belief … to qualify as a philosophical belief”.

Cue the “I always thought they were a cult” loudhailer (and then turn off the volume). But this is one of the most interesting legal cases I’ve heard of for many years. It is a delicious nexus between the languages of law and politics. And it has surfaced, a little shockingly, some of my own convictions.

The ruling, as some commentators have noted, really puts flesh on the bone of that recent dilemma: whether you describe yourself as an “existential” or a “utilitarian” Scottish nationalist. This was a distinction made by the late constitutional theorist Neil MacCormick, but was also cited by Nicola Sturgeon in a speech in December 2012 when she was depute leader.

Sturgeon defines the distinction neatly. Existential nationalism “described those who thought Scotland was entitled to be independent simply because we are a nation”. Utilitarian nationalists are those who believed “that independence was a tool to deliver a better society”.

And although Sturgeon believes that “most SNP members are an amalgam of these two strands”, it’s pretty clear where she falls – which is utilitarian. Quote: “For me the fact of nationhood or Scottish identity is not the motive force for independence … My conviction that Scotland should be independent stems from the principles, not of identity or nationality, but of democracy and social justice.”

McEleny’s claim would seem to be impeccably existential nat. Referring to previous case law, the Glasgow ruling uses an intriguing definition of a “philosophical belief” (which is confusingly equated at one point with a “religious belief” – scholars, en garde!).

“A philosophical belief is not an opinion or viewpoint based on the present state of information available”. This means that it’s a deep conviction, held by someone whose entire life is guided by it, in a way which would not be swayed (for example) by a particularly nihilistic reading of the GERS figures. And it is also something with potential relevance to the whole of humanity – meaning it’s not just an ideology-and-numbers debate between the business suits in Holyrood.

So in order to put a belief in Scottish indy on par with a philosophical or religious conviction, McEleny had to submit the following to his hearing: “He was not claiming to believe that Scottish independence could improve the lives and economy of Scottish people. His belief that decisions regarding Scotland should be made by the people of Scotland, regardless of the outcome, will never change”.

Weird. So in order for McEleny to nail the MoD’s dismissal of him by using the Equality Act, which defends the right to hold “deeply held philosophical and religious beliefs”, he has to go full existential nat.

Indy could result in fireballs, plagues and boils, and it wouldn’t matter to McEleny, in this legal case at least. The right to self-determination, as something “approaching the coherence” of a religious or philosophical belief, trumps all potential outcomes.

As an individual, I wish Chris all the best. It’s outrageous that a political Scots nationalist could be questioned in his own home by his own military employers, doubting his probity and integrity.

As the Law And Religion UK blog tartly noted: “If candidature for the deputy leadership of the SNP was seen by the MoD as a potential security issue, how does it feel about the present Scottish Government?”

But it’s funny how certain legal rulings reveal what your fundamental convictions are. I’ve been asking myself: would I be an independence supporter if the case that was being made for it was culturally, linguistically, ethnically or racially purist?

Would I be an independence supporter if the case for it was similar to, say, the hard Brexiteers’ case for Leave – meaning low taxes, a harsh welfare system and labour market, anti-immigrant, geopolitically vainglorious?

The answer to both questions, honestly, would be no. Or at least, it would be no if those arguments tied such policies intrinsically to the realisation of Scottish nationhood. Or whether it looked like those policies were the ones that might amass a majority for independence, under some future referendum.

So to that extent, I find that I’m not a “philosophical nationalist”, according to Judge Eccles’s ruling. My opinion or viewpoint on independence is always going to be “based on the present state of information available” about it.

Just to be clear, and for what it’s worth, I think extremely highly of the current state of Scotland’s resources, structures and history. I think independence would bring a “Second Enlightenment” to this country.

We have an extraordinary opportunity to be an exemplar of modernity – which means good governance, future-ready institutions and policies, active and intelligent citizenship. Scratch me even lightly, and I’ll gush all over you to talk up Scotland’s global, and even moral, potential.

But I can’t ever be an “existential nationalist”. I can only ever be a utilitarian, left-green nationalist. Someone who sees an opportunity to harness some of Scotland’s legacies (and not all of them: see our blood-soaked lieutenant role in Empire) to a progressive and socially-just policy agenda.

The claimant may well have made himself clear in his evidence to Judge Eccles “that he does not believe in Scottish independence because it will necessarily lead to improved economic and social conditions for people living in Scotland”. However, I couldn’t really believe anything else.

It’s in my living memory that the figures known as the 79 Group (Alex Salmond, Jim Sillars, Kenny MacAskill and others) wrested the SNP directly on to the social-democrat/centre-left ground. This was a daring and strategic move. It opened up the possibility for the traditional Labour vote to think of independence as something that could directly improve their lives. And because of all that, I would contend, here we all are.

But I have enough family recall to remember my father, in our Roman Catholic house, railing away at William Wolfe, then SNP president, for raising objections to the Pope’s visit to Scotland. “You see, Pat? Home Rule is Kirk Rule,” my dad would pronounce incontrovertibly.

This was a hard personal legacy against Scottish nationalism to overcome (and it took the love of a good and smart woman to shift it).

Judge Eccles rules herself “satisfied” that “the claimant’s belief in Scottish independence and the social democratic values of the SNP can be severed and considered separately”.

Well, I’m glad I’m not anywhere near that dock, presenting that case. Because they really can’t be severed by me. Whether I’m enjoying Chris tweaking the MoD’s nose, or not.