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Fast forward to 1989 and the Scottish Constitutional Convention was established which superseded the CSA after prominent Scottish individuals signed the Claim of Right.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 29th 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 9th 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?

 Do you see it?

#indyvision

 

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24 thoughts on “Do you see it?

  1. This is a great piece of work. The competence of this Scotgov compared with the utter hopelessness of UKgov is like night and day. I’ve hoped for a while that Scotgov is working to some plan and from time to time there have been signs that that could be the case. But your piece here is quite the boost to morale. Again, nice work.

    Liked by 5 people

  2. Ah. It’s nice to hear a Plan C, but I think Plan B is the answer.
    As far as Wee GingerDug’s blogpost is concerned, I disagree. I cannot see anything wrong with a Legally ended Union, after all that was how it formed, however I would anticipate that we would then have a vote to ratify that position.
    The Westminster gaultiers have already stated that they will not grant a S30 order and it follows from that position that they will never agree to independence. A popular mandate at an election is another way, but inevitably the Unionists will shout “thats not right you need a referendum” having steadfastly campaigned against a second one.
    So I think that no matter what the Scottish Government does it will lead to hostility from the Unionists, we just have to be prepared for this.
    No disrespect to WGD he is as ever a resolute supporter and makes very informed and interesting comment, but a legal dissolution followed by ratification is in my opinion an equally valid route.

    Liked by 2 people

  3. Em.. you have the Acts of the Union and the Treaty thing the wrong way round.
    Its the TREATY of the Union that gives the ACTs of the Union and any subsequent Acts of the UK Parliament the force of Law!
    I’m not being picky … The difference is very important….
    Westminster can have all the Acts they like… Its the TREATY that needs to be struck down.
    This is why Westminster and the Lords keep punting a “New” Act of Union…. They never mention a new Treaty, who would negotiate and sign a new Treaty anyway… England has nothing?
    To get a NEW Treaty in place the OLD one would need to end, when the 1707 Treaty ends the Union is over and Westminster CANNOT make anymore Acts for Scotland..
    Also Westminster doesn’t need a written Constitution to have legal authority the UK courts are obliged to rule for any Act the Westminster Parliament passed… in the UK, Parliament is Superior to the Supreme Court…
    The only thing Westminster cannot do is alter the 1707 Treaty of Union because the Parliament of Scotland and England are the only Two parties who signed it… It is THE founding document of the UK Parliament..
    Strike down/dissolve the TREATY and there is no UK Parliament.
    The only way to do that anymore is for a Scottish Parliament (there is no English Parliament) to remove consent for Scotland to be bound by the terms and conditions of the 1707 Treaty any longer.
    The only way the Scottish Parliament has the Authority to do so is if it can demonstrate that it is acting according to the will of the Sovereign Scottish People….
    and the only way to get that Authority……. Is to ask for their instruction !

    Being prevented from asking the Scottish People is a whole different conversation…but we are not there yet.
    And we surely don’t want a Parliament to use legal trickery to get it’s way without the People’s permission?
    I certainly don’t want Holyrood to go ahead and write our Constitution for us… Its not Holroods place to do that…. We.. The People… should be deciding what is in our Constitution.
    Westminster got to decide the UK Constitution for itself and if that’s no a warning not to let the Scottish government write ours … I don’t know what is..
    I would also caution.. that what we can do British Nationalists can also do,and there will be a reunification campaign after our Yes vote .. It is also their right.
    I would rather that their only route to another Union is to get a party with a manifesto commitment for another Treaty elected into Holyrood and then to win a referendum on it.. Wouldn’t you?

    Liked by 2 people

  4. Liz.

    Thank you for the reply.

    The Union with England Act 1707 (Scottish Act) is listed correctly in my blog post. It was this act that ratified the Treaty of the Union of the two Kingdoms. See here http://www.legislation.gov.uk/aosp/1707/7/introduction

    The main point about the Union with England act that i make reference too is here. http://www.legislation.gov.uk/aosp/1707/7/section/XVIII See the last sentence regards altering laws in Scotland without evident utility (evidence of support) in Scotland. The EU Withdrawal Bill does not provide for evident utility.

    The point in the blog post is that it is within the power of the SG to enact a constitution in Scotland which is democratically approved by the people of Scotland via a popular vote i.e. Scottish election. This is not legal trickery, this is simply the law.

    I didnt say Westminster needs a written constitution to have authority, what i said is that there is no written constitution so the legal instruments used in the UKs constitutional arrangement have no authority – they are only observed. Its important to understand the difference.

    A Scottish Constitution as put in a manifesto pledge and a governmnet elected on it is perfectly legal, and in fact normal. That constitution would of course be written by the people and not the government, and that constitution would protect the rights of us all, including the right to remain in the EU if so agreed.

    Regards British Nationalists, once the terms of Brexit are known and the effects are felt, i would imagine there would be many a Brexiteer in Scotland who would support the constitution, particularly when it became evident that no political party had singular jurisdiction to alter it without the permission of the people,

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  5. I thankyou for laying this out in such detail, and for your helpful answers.
    I do however have a question:

    you say
    “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.”

    What evidence do you have to support the assertion that Royal Assent would be received automatically?

    We have just recently seen how the UK Government used legal means to delay The Continuity Act.

    It is my understanding that, similarly, the British Establishment, in this case in the from of ‘the Crown’ can refuse assent, as it were, on the whim of a nonaganarian with a large and heavy hat.

    😉

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    1. The last time a monarch in the UK withheld Royal Assent was Queen Anne in 1708. She withheld assent to pass the Scottish Malitia Bill 1708 (1 year after the Union) because she feared that the planned invasion of the UK by the French would potentially turn any Scottish Malitia against the Union as the Jacobites supported the French.

      In the colonies, the same applied to the Decleration of Independence in the USA in 1776.

      Royal Assent today is more of a formality than anything. Hypothetically Royal Assent could be withheld but that would only serve to fuel the independence cause because there are 3 people in Scotland who can advise that consent be withheld. The Lord Advocate, Attorney General and Secretary of State for Scotland.

      If the Scottish Government were to hold a vote on this and recieve a majority in support, that would be the will of the people. Withholding support after Westminister agreed in the CoR 2018 vote that Scots can chose the best form of government suited to their needs would put the entire Union into further disrepute.

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  6. Oh I see it all a d I feel you miss one important point what ever way this pans out we will become independent by default of the Westminster rule and misrule.
    The act of union is effectively broken now by this power grab.
    I was at the Aviemore Assembly and the biggest issue which formed two groups was the currency issue.
    I led the morning group of 33 and we a Scottish currency from day one independence (ie after the transition stage).

    So Alex is right and all the English Parliament are doing to us is what they have done to every other colony just before the final death through of strangle hold of power, that is corruptly try to break us.
    Too late it will not work.
    We are on our way.

    Like

  7. The process that you have described is so hard for me to understand. I have read it three times now and I am getting closer to full understanding that I am confident about. To help me do so I will try to put into my own words. In a word though so far it seems to me like the process of “Osmosis”.

    Liked by 1 person

  8. Proof reader required:

    “Garnished”/”garnish” should be “garnered/garner” (three instances)
    “Royal Assynt” should be “Royal Assent”
    “Universal Declaration of Independence” should be “Unilateral Declaration of Independence”.

    Like

  9. Very interesting. I know Scotland will be Independent. The people of which I am one of the older. Have been awakened to the Skullduggery of the Westminster Tory’s. The ordinary man in the street. Is wanting his Country Scotland to be in the driving seat. It will happen . Our youth are political. Our younger Children are very with our movement. We will be free from Subservience to England. In my time please.

    Liked by 1 person

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