Do you see it?

It’s been a while since I last blogged. Between work commitments, family holidays and generally taking a break from the rigours of political uncertainty, I felt it best to take a step back and refresh my view.

Recently I was discussing independence, as I often do on Twitter with some fellow Yesser’s and I was led down a path of research that has literally shook my entire view of how Scottish independence will likely be achieved in the event that the Supreme Court challenge by the UK Government against the Continuity Bill is a success.

There is a part of me that thinks the following reasoning will be deployed irrespective of the Supreme Court ruling, however, the Supreme Court ruling could be a game changer for how independence is achieved.

Firstly, it’s important to distinguish that I do not hold any information that is not in the public domain already, but what I do hold is public opinions of academics who understand these areas better than I and who advocate Scottish independence.

The campaign for a Scottish Assembly was formed after the 1979 referendum that failed to establish a devolved assembly. This CSA was mainly formed by Labour and the SNP who advocated some form of Home Rule for Scotland. The SNP were spilt on it as they wanted Labour to accept independence as a constitutional aim, which they would not, so full support was not delivered by the SNP.

Fast forward to 1989 and the Scottish Constitutional Convention was established which superseded the CSA after prominent Scottish individuals signed the Claim of Right.

Claim-of-Right

Over the next few years, the SCC garnished business, religious and trade support after a series of national meetings across Scotland and in 1995 published its blueprint for Devolution which led to the basis of structure for the Scottish Parliament, which reconvened in 1999 for the first time in nearly 300 years.

Fast forward to the Scottish Parliament election of 2011.

The Scottish National Party, under the leadership of Alex Salmond won the election on a manifesto pledge of legislating to give Scotland an independence referendum. The SNP gained 44.04% of the popular vote and as such held a majority of parliamentary seats at 53.49%.

Over the course of the next couple of years, the Scottish Government delivered on the pledge to legislate for an independence vote and the Edinburgh Agreement was signed with the then Prime Minister of the UK, David Cameron. Now at this point it’s important to emphasise that the Edinburgh Agreement was not an agreement to hold a singular referendum for all eternity, the agreement was that both sides of the debate would respect the result and as such that agreement has been honoured. Scotland is still in the UK and it is not independent, however, the Edinburgh Agreement did not state that the SNP must give up its fight for Scottish self-determination. Both are not the same thing.

Scotland, as we all know, voted to remain in the UK by 55% to 45%. I’m not going to cite reasons for this and reasons for that, other than the elephant in the room. The EU.

In the lead up to the UK referendum on membership of the European Union, the government’s position, both in Scotland and in Westminster was to Remain due to the financial implications of leaving for all countries of the UK. Subsequently, Scotland voted to remain by 62% to 38%, with every single constituency area also voting remain. Over the next 2 years, the Westminster government’s position changed to leave, whilst the Scottish Governments position stayed resolute. The resulting uncertainty has left the UK with a little over 8 weeks to complete its negotiations with the EU for its withdrawal on the 29^th March 2019 (6 months’ time). At the moment, it looks odds on favourite for a no deal scenario and the UK to fall back onto WTO terms and be the only country on Earth with no trade deals.

This situation is worsening by the day and, as of yesterday, Operation Yellowhammer was leaked which is the contingency planning for a no deal Brexit by the UK Resilience department…the same organisation who responds to terrorist attacks, epidemics etc. Things are seriously wrong for it to be at this stage and at this point in the negotiations. Whatever the outcome, Scotland’s economy is going to be decimated and the population will be angry.

Now as all this has unfolded and bearing in mind the process which led to devolution in the 1980s and 1990s, we have a precedent to compare against…the only exception being that in the 1980s and 1990s we didn’t have Brexit, however, we had the Poll Tax and other Conservative measures against Scotland.

Over the past 2 years you may have noticed an urgency by the Scottish Government to open its investment hubs globally. You may also be aware about the Claim of Right vote at Westminster in 2018 and of course, as alluded to earlier, the Continuity Bill.

Let’s look at each of these 3 before progressing.

The Scottish Government is approaching the investment and innovation hubs in two ways. Firstly International and secondly European. The Scottish Government has opened or will be opening these hubs in the following countries. USA, Canada, China, Ireland, England, Belgium, Germany and France. On top of this, the international enterprise agency, Scottish Development International has offices, or will have offices in 30 global locations across the Americas, Asia and the Pacific, Middle East and Africa.

These hubs serve a number of purposes, but in the main, they will serve the purpose of attracting business support towards Scottish trade and industry. This is an important part of the ongoing independence process where business support is required for what I believe will be the eventual action to achieve independence.

The Scottish Claim of Right vote in 2018 took place in Westminster. This was different from the Claim of Right vote at the Mound in Edinburgh in 1989, and different from the original Claim of Right vote in 1689. The reason it was different was because the 2018 vote was officially endorsed by the House of Commons of the United Kingdom that the people of Scotland are sovereign and that they have the right to determine the best form of Government for Scotland’s needs. This is significant because this is the first time that the United Kingdom has agreed that legally, Scotland can choose to be independent if it feels that is in the best interests of Scotland without the expressed permission of Westminster. Now this cannot be challenged in any Supreme Court by Whitehall because it was Whitehall who endorsed and voted for it. They would effectively be challenging themselves.

The Continuity Bill was an act passed by the Scottish Government by a majority in the Scottish Parliament from all but the Conservatives with the purpose of the act being to state that it is within the powers of the Scottish Parliament to prepare for the consequences of the UKs withdrawal from the EU and that the Scottish Government has the competency to do so.

This Continuity Bill was (and is still) challenged by the UK Government at the Supreme Court. The UK Government is of course arguing the opposite and that competency lies with Westminster without the process to seek agreement to change Law in Scotland with the consent of the Scottish Government.

If the UK Government wins this case, it will have in effect declared supremacy over the Scottish Parliament and more importantly over the Act of Union 1707. The AoU 1707 is of course an act which ratifies the Treaties of Union (Scotland has its Treaty with England and England has its Treaty with Scotland). Importantly, the Union with England Act 1707 (Scottish Act) states that (Article XVIII, which has NOT been amended)

“the Laws which concern publick [sic] Right Policy and Civil Government may be made the same throughout the whole United Kingdom but that no alteration be made in Laws which concern private Right except for evident utility of the subjects within Scotland” In other words, laws across the UK must be the same, but no alteration to those laws can be made where they affect the private rights of Scottish people without evidence of the support of the Scottish people to enforce those changes.

To me, as a layman, that implies that the EU Withdrawal Bill, which will of course affect the private rights of Scots (including ECJ Jurisdiction, Human Rights, Financial Rights etc.) is illegal under the Union with England Act 1707 as there is no evidence for support in Scotland as Scotland voted to remain in the European Union.

Now, I cannot say for sure what the outcome of the Supreme Court challenge will be. My Heart says that Scotland will win it, but my brain says that Westminster will win it (or it’ll be decided that the Supreme Court has no jurisdiction). Whatever the outcome, it’s a necessary evil to pursue because it will clarify the standing of the Scottish Parliament within the political arrangements in the Union.

As I alluded to earlier, there are other pieces to this jigsaw that have been slotted into place since 2016. I have discussed the investment and innovation hubs to garnish international support for Scotland as a separate entity within Europe and internationally, I have discussed the Claim of Right endorsed by Westminster and I have discussed the Continuity Bill challenge, however I have not discussed the Cabinet reshuffle in Scotland that took place in June 2018, nor have I discussed the National Assemblies occurring in Scotland and the work being undertaken by other groups across Scotland in support of independence.

So let me discuss the Cabinet reshuffle first.

In June 2018, the First Minister announced a Cabinet reshuffle to take her Government forward through 2018 and 2019. Of particular note was the new position of Cabinet Minister for Business Development and Constitutional affairs undertaken by Mike Russell. It is worth understanding why this position was implemented and what it evolved from.

This position has evolved from the position of Minister for UK Negotiations on Scotland’s Place in Europe, which was also held by Mike Russell. So this post has evolved from trying to keep Scotland in the EU whilst being in the UK, to Constitutional relations and business development (international and European hubs). This, to me is pointing in one direction only, preparation for changes to the ‘unwritten’ constitutional arrangements of the UK. It is also worth noting that the post of Cabinet Minister for Business Development and Constitutional affairs holds the responsibility for Government Strategy and reports directly to the Deputy First Minister and First Minister.

Throughout 2018 we have seen the launch of National Assemblies across Scotland. So far, 2 have taken place and the third and final one will occur on 9^th September 2018 in Edinburgh (2 days’ time). The aim of the Assemblies is to discuss the Sustainable Growth Commissions report compiled by Economist Andrew Wilson.

These Assemblies will give business and people the opportunity to discuss sections of the report over the three meetings. The Assemblies will be chaired by the Deputy First Minister, the same person who the Cabinet Minister for Business Development and Constitutional Affairs reports too. The First Minister is quoted as saying, “we need to maximise our strengths to match the economic performance of successful independent nations of comparable size”.

Interesting turn of words.

In 1989, prior to the vote on the Claim of Right which led to Scottish Devolution, there were a series of meetings which took place to discuss Scotland’s Constitutional direction, with business and people in attendance. It led to the Blueprint for Devolution and subsequently, devolution itself.

Scrolling back to the day before the referendum on Scottish independence, Alex Salmond, the then First Minister publically stated that this vote on independence was once in a generation. Thankfully that was not part of the Edinburgh Agreement, and it was purely a personal statement to garnish support. It was, however, a political stroke of genius and the perfect statement to make, because it has, in effect, forced the opposition of independence to focus their attention on that very statement.

This is witnessed all over the place with the parties of the Union stating at every opportunity phrases related to it, such as “Scotland said no”, “get on with the day job”, “no more independence referendums” etc. When you tangle these unionist statements into the ever differing constitutional positions of Scotland versus the rUK, the union finds itself in the position of reinforcing its own demise as it continually expresses against the wishes of those it governs. The alternative then becomes far more appealing.

But was Alex Salmond telling the truth?

I am of the opinion that he was. There will be no independence referendum. Why would there be, why do we even need one?

Now before you stop reading at this point, I am not advocating a Universal Declaration of Independence, nor am I suggesting the First Minister calls an early Scottish Election with a manifesto pledge to repeal the Union with England Act 1707 on a majority vote, what I am advocating though is that the Scottish Government, and the First Minister continue to do exactly what they have been.

What has been occurring in the background, with the investment hubs, international exposure, Claim of Right vote, Continuity Bill legislation, National Assemblies and Cabinet reshuffle will lead to one eventuality that cannot be challenged in any court in any country that will not require a referendum or an election and will not disregard the result of 2014.

It will lead to what is currently missing in Scotland and what was started in 1320 with the Declaration of Arbroath. What was started in 1320, was reinforced in 1689, then again in 1989 and then again in 2018. The final piece will be slotted into place (I suspect) in March 2019, exactly 699 years after its first manifestation with the announcement that the Scottish Government will create a formalised and written Scottish Constitution.

It is important to now see how this will lead to independence.

Westminster agreed that Scots are Sovereign in the UK Parliament. The UK does not have a documented Constitution, instead it has a series of legal instruments (not laws) that have developed into a body of law known as Constitutional law, however, the rules of the constitution in an uncodified constitutional arrangement are only observed and have no legal authority.

I’ll repeat, unwritten constitutions have no legal authority and as such cannot be used in court.

When Scotland develops its own written Constitution, it will be able to embody it with what it so chooses, including membership of the European Union, Scots Law being sovereign, Human Rights, etc. which, provided it is passed in the Scottish Parliament by a majority of elected members cannot be challenged in any court of law and as such, will defacto deliver Scottish Independence as the documented will of the Scottish people, reinforced by the vote on the Claim of Right in Westminster where Westminster agreed that the Scots can choose the best form of Government that suits their needs. It seems more and more right that a codified constitution to enshrine the rights of every Scot is what is now required to prevent further erosion from Westminster.

Now some of you may be thinking, it’ll never fly with Unionists. Well I say to you, let’s just wait and see what the shape of the deal is before we jump to conclusions about what protections a codified constitution could provide to all citizens in Scotland, her economy, children and international voice.

It’s worth finishing this blog post on one simple other fact that many overlook.

Constitutional conventions form part of the uncodified constitution of the UK as a legal instrument. As there is no written single constitution, these legal instruments, or conventions form the basis of the structure of the uncodified constitution. It is very uncommon for the House of Commons, or the Monarch to depart from conventions laid forth in the UK, even if the underlying enforcing principle has been overtaken by history as conventions also acquire force of custom, an example of such is that the Westminster Government will only legislate on reserved matters, it will not legislate on devolved matters.

If it is found that the Supreme Court rules in favour of Westminster being able to legislate on devolved matters, the legal instruments for maintaining an uncodified UK constitution are cast into disrepute and as such, that ruling in itself may pave the way for a codified Scottish Constitution to fill a newly apparent gap in Scotland’s plight for protecting its economy and people. Any such action could then be ratified by the Scottish Government, enforcing the principles of said constitution throughout sovereign Scots. This would automatically receive Royal Assynt under the Royal Prerogative.

There are a few groups out there who are already setting things in motion such as the Common Weal. Keep your eyes on the Supreme Court and watch out for increased rhetoric on renewing the Act of Union, or developing a UK wide Constitution as either one may gain media traction as Brexit and ‘UK Independence’ approaches and the unfolding ‘constitutional crisis’ looms!

Nice turn of phrase constantly echoed by Nicola Sturgeon. Maybe she has a Plan B?