How to restore independence

It is hardly a secret that, lately. I have been increasingly critical of the Scottish Government’s whole approach to the constitutional issue. In particular, the absolute commitment to the Section 30 process and the concomitant ruling out of all other options; but also the insistence that the Yes campaign in a new independence referendum – should such ever transpire – must replicate that of the 2014 referendum and the implied failure to learn any lessons from that earlier campaign.

Nobody, either in the SNP or in the wider independence movement has responded meaningfully to my detailed criticisms of the approach adopted by the Scottish Government and the SNP group at Westminster. Instead, I have been denounced in ways that range from the infantile to the defamatory, but always woefully ill-informed and ill-thought. Or I have simply been ignored. None of the substantive points raised has been addressed. None of the questions asked has been answered. None of the conclusions reached has been challenged by rational argument.

(I will note at this juncture that I am far from being alone in expressing concerns about the SNP’s strategy. But I do not presume to speak for others.)

As well as denunciation, there has been much in the way of diversion; a favourite form of which is to ask what I would do, or what I reckon should be done. The evasion is obvious. I am merely a commentator. I am not empowered to do anything. The question is not what would I do but whether what is being done by those who do have power is adequate and appropriate.

Having said that, and in no way contradicting the observation that asking what I would do is evasive, it is fair to say that if it is claimed that a given course of action is wrong then there is a necessary corollary that an alternative course of action exists which would be right. It is perfectly legitimate to ask what that alternative course of action might be. It is not legitimate to put this as if it were a meaningful response to criticism of the course of action being followed. It is an entirely separate question and not a reasoned response to the concerns being expressed.

It is also perfectly legitimate to express concerns about a particular course of action without offering an alternative. Consideration of an alternative course of action must always be subsequent – and, perhaps, subordinate – to the identification of defects and/or deficiencies in the current approach. It is perfectly sensible when a number of different routes present themselves, to vociferously condemn taking the one leading to a precipice without offering any advice as to which route should be followed instead. Were there a rule that said one could only urge against driving towards a cliff-edge when and if one had worked out a detailed alternative route, then there would be a lot more driving off cliffs.

If those who demand to know my alternative in attempt to divert from my criticism of the SNP’s approach to the independence issue had bothered to do a little research they would be aware that this question has already been answered. I had intended to restate and clarify the preferred alternative course of action so as to have something to which people could be referred when they ask what I would do instead. But I find that I cannot do better than start by repeating the relevant portion of that previous article.

What people actually mean when they refer to UDI; what they mistakenly identify as UDI, is a process in which a declaration of intent to change Scotland’s constitutional status precedes a plebiscite to ratify that proposed change.

The closest analogy may be the dissolution of the political union between Norway and Sweden. A union which was, in some significant respects, similar to that between Scotland and England. Certainly, it was the cause of the same kind of tensions between the two nations.

With all the usual caveats about the dangers of simplification, the story starts, as all such stories must, with the nation that wishes to dissolve the union breaking the rules which bind it together. Norway declared its intention to set up its own consular service thus breaching the terms of the political union which reserved foreign policy to Sweden. Sweden refused to recognise the legislation passed by the Norwegian parliament and the Norwegian government resigned; provoking a constitutional crisis when it proved impossible to form a new government.

To resolve the issue of Norway’s constitutional status, the Storting (Norwegian parliament) voted unanimously to dissolve the political union with Sweden. This was on 7 June 1905. Crucially, in order to seize total control of the process, Norway avoided the offer of a negotiated settlement which would have allowed Sweden a measure of influence. Instead, the Storting immediately scheduled a referendum for 13 August – around nine weeks after the vote to dissolve the union.

That referendum resulted in a ‘Yes’ vote of 99.5%.

It shouldn’t be difficult to work out from this how Scotland should proceed. And it has absolutely nothing to do with UDI.

As stated in that final paragraph, it shouldn’t be necessary to expand on how this historic example relates to Scotland’s current predicament. Anyone with a modicum of intellectual acumen and a little understanding of the situation should be able to work out what all of this implies in terms of an alternative approach to resolving the issue of Scotland’s constitutional status. But I strongly suspect that those ill-equipped to think it through for themselves may be vastly outnumbered by those ill-disposed towards doing so. Inducing the latter group to open their minds is, by far, the greatest challenge. They will always find a way to rationalise clinging to their entrenched viewpoint.

It is first necessary to accept that there is no route to the restoration of Scotland’s independence which adheres to the laws, regulations, rules and procedures imposed by the British state for the purpose of preserving the Union and perpetuating established structures of power, privilege and patronage. At some point, the rules must be broken just as Norway breached the rules by declaring the intention to set up its own consular service.

Neither is there a route to the restoration of Scotland’s independence which does not pass through a point at which there is direct and almost certainly acrimonious confrontation with the British state. To attempt to avoid this confrontation is to diverge from the path which leads to the restoration of independence and risk being unable to regain that path.

It is further necessary to accept that Scotland’s independence cannot and shall not be restored via Westminster. Independence can only be restored by Scotland’s First Minister leading the Scottish Government under the auspices of the Scottish Parliament and with the support of the Scottish people. For independence to be restored, the authority of the Scottish Parliament must be asserted on the basis of its democratic legitimacy.

Basically, the Scottish Parliament is a subordinate annexe of the British parliament because the British parliament says that it is. It will remain so, either until the British parliament says differently or until the Scottish Parliament itself says differently. Given that Westminster is never going to relinquish its asserted superiority, nothing will change until Scotland challenges the established order and defies the British state to do something about it. Just as Norway defied Sweden to hold its referendum on dissolving the Union.

Power is not given, it is only taken. The established order does not change unless and until action is taken to change it.

Finally, it is necessary to recognise that the exercise of Scotland’s right of self-determination derives its legal validity from a body of international laws and conventions and its democratic legitimacy from the sovereignty of Scotland’s people. That is all! Westminster has no legally necessary (or even permissible?) role, and certainly no democratically legitimate authority, in the process. As established power elsewhere has discovered, it is no match for the determined defiance of the people.

Putting all of this together, we come to a clear conclusion as to how Scotland’s independence might be restored, given the improbability of the current approach being successful. I say “improbability” because it is just about conceivable that the SNP’s strategy might succeed. It may turn out that the Scottish Government proves to have been right in relying on the goodwill, good grace and good faith of the British political elite. Or it might be that the strategy succeeds simply because the British political elite fails to take advantage of the many opportunities inherent in the strategy to ensure that it fails.

We cannot entirely rule out the British establishment cooperating with the process of ending the Union, despite this being counter to its most fundamental imperatives. Nor can we completely dismiss the possibility that the British political elite might be so incompetent as to let the SNP strategy succeed despite the ease with which it could be thwarted.

Alternatively, we could rely on our own competence and do away with any need for the cooperation of the British establishment.

Norway chose to confront Sweden on the issue of overseas representation. In principle, it doesn’t matter what the issue is. But it is essential that the Scottish Government select the issue and that it be something which is critical to the integrity of the Union. I choose to illustrate the point using what may be considered the ultimate such issue. With a little imagination, others might substitute different issues which have the same effect. I also choose to state the process very simply and starkly, recognising that this is a thinking exercise intended to challenge an existing mindset rather than a detailed political strategy.

It begins with the First Minister declaring the Scottish Government’s intention to ask the Scottish Parliament to approve a proposal to dissolve the Union between Scotland and England subject to endorsement by the Scottish people in a referendum.

This referendum, being the exercise of the right of self-determination guaranteed by international law, to be conducted entirely under the auspices of the Scottish Parliament and such independent agencies as the Parliament may appoint, and in accordance with legislation passed by the Scottish Parliament..

What subsequently happens depends largely on how the British government responds to this challenge to its asserted authority. The ways in which it might respond are, however, limited and hence largely predictable. They can be dealt with. If we are not confident that Scotland can deal with these challenges then we invite questions as to our fitness to function as a normal independent nation.

Assuming we stand firm and overcome these challenges, we proceed to a referendum which, it goes without saying, must be unimpeachably democratic in all its aspects. Leaving only the matter of how we conduct the campaign to secure a decisive vote in favour of the proposition to dissolve the Union. But that is a matter for another article.

I fully recognise that what is being proposed is not a lawyerly solution. I suggest that few things might better serve to commend it. For what our nation needs at this time is, not the tremulous timidity of lawyers cramped by caution, but the bold assertiveness of political leaders inspired by the justice of Scotland’s cause.

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