When Ruth Wishart says “we can chuck away that cap and fight for our own future“, is she joining the growing chorus urging that the First Minister abandon her commitment to the Section 30 process and instead dedicate herself to a referendum entirely made and managed in Scotland? If so, her voice is a welcome and very powerful addition to that chorus.
Might we hope that others will follow suit? I wonder how many people, at all levels in the SNP and across the Yes movement, share the concerns that have been expressed about the Section 30 process but are wary about putting their head above the parapet. I wonder what it would take to instill the intestinal fortitude necessary for them to speak up. I wonder if encouragement from someone of Ruth Wishart’s standing might tip the balance in that regard.
It’s easy enough for me to criticise Nicola Sturgeon’s approach to the constitutional issue. I have neither position nor status in the SNP. I have nothing to lose by asking the awkward questions about the Scottish Government’s strategy. I am free to think the unthinkable and say the things that many would prefer were left unsaid. My first loyalty is to Scotland’s cause, not to any political party or leader.
For others, it’s not so easy. Because they have a more powerful sense of loyalty to the SNP and Nicola Sturgeon; or because they are bound by collective responsibility; or because it involves their career and ambitions, dissent has a cost for them which it doesn’t have for somebody like myself. I can have some sympathy with their dilemma. I derive no satisfaction from being a dissenting voice. I would much rather I didn’t have to ask those awkward questions and express those concerns. I do it because it needs to be done. And because I can.
I know I’m not alone. I know that many others share my concerns about the Section 30 process. I cannot believe that there are not people in the upper echelons of the party who also see the problems and pitfalls. I expect there are more than a few who are struggling with the dilemma. Do they speak out and face the inevitable accusations of disloyalty as well as the displeasure of the party leadership? Or do they remain silent despite their fears that commitment to the Section 30 process could very well prove to be seriously detrimental to the cause of independence?
If one or two people in positions of significant influence were to express doubts about the Section 30 process it might well open the floodgates. If dissent grows to a level that Nicola Sturgeon can no longer ignore, what then? If she comes under serious pressure to “chuck away that cap and fight for our own future”, how might she respond?
There would seem to be three basic options. She could attempt to face down her critics. She could stick fast to her insistence that the Section 30 process is the only possible route to a new independence referendum and defy anyone to contradict her. At the other extreme, she could threaten to stand down as party leader and/or as First Minister. The former would tend to harden opposition to her approach and make her situation worse. The latter would have repercussions that I prefer not to dwell upon.
The third option is for Nicola Sturgeon to change her approach. If she is unable to address, far less allay, concerns about the Section 30 process – which is, self-evidently, the case – then those concerns must be valid. Being valid, they provide ample justification for declaring that the Section 30 process has been rendered infeasible by the intransigence of the British political elite. Not to mention their duplicity, mendacity, hypocrisy and treachery.
That the Section 30 process will have to be abandoned at some point is beyond doubt. By its very nature, it can only lead to a free and fair referendum with the goodwill, good grace and good faith of the British establishment. It only works if the British government cooperates fully and respectfully to achieve an outcome to which it is implacably opposed.
Moreover, the Section 30 process provides the British political elite with the means to readily prevent the outcome to which it is implacably oppose. Put it all together and it’s plain to see that, not only is the Section 30 process unlikely to work as Nicola Sturgeon hopes, it would be little short of a miracle if it did. There are more and better reasons for rejecting the Section 30 process than for committing to it. It would be to Nicola Sturgeon’s credit if she were to acknowledge those reasons. And the sooner the better.
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Peter A Bell 
Hi Peter
I am going to give Nicola the benefit of the doubt until after this election.
I want to see as many SNP mp’s as possible elected. As soon as the election is over then Nicola will have to act. If the SNP get 50 MP’s , which I suspect they will. Then she must not allow any further compromise to Scotland’s sovereignty.
So the process after the election should really be demand the section 30. Get the inevitable rejection and then proceed to the next stage. That will be to proceed on Holyrood’s authority to conduct the referendum as authorised and endorsed by the majority of MSP’s.
I know you will say , why even ask for a section 30? However there is no common sense way of thinking that Nicola won’t at least request the section 30. She has chosen this path and needs to get the rejection before proceeding. If she does not ask for the section 30 and carries on without the request. It will play into the hands of Westminster. We need them to categorically refuse to accept the authority of the Scottish parliament. This is where the constitutional battle lines will be drawn. This is where Nicola can win the argument and the legal case.
This is where I think we are heading.
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So, you think Nicola Sturgeon is going to do something that she herself has effectively declared ‘illegal and unconstitutional’. That doesn’t sound like the same Nicola Sturgeon who insists on ‘demanding’ a Section 30 order. That sounds more like someone who would have rejected the Section 30 process from the outset.
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Spot on Big Jock. Someone talking sense.
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Nigel Farrago has thrown English Opposition under that bus. Now even if SNP abandons Sect30 once the Scottish diy Iref.2 is hinted Johnston will immediately disable politics in Scotland. Therefore very, very fast footwork becomes mandatory. Very fast indeed!
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I suspect it may already be too late.
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It is clear to me that the Art 30 process needs to be tested – & if that test turns out to be a test to destruction then no-one should be too surprised.
But we are not the Labour Party – we should not change our policy on this or anything else while we are in the middle of a GE campaign.
On December 13th (if a UK prime minister has emerged by then) the Scottish Government should demand the right to hold a new independence referendum – with a short timeframe for a response -from the Prime Minister. No response would be deemed a refusal.
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Then what? Nicola Sturgeon has effectively ruled anything other than the Section 30 process ‘illegal and unconstitutional’. How does she get around that? The point I’m making is that Nicola Sturgeon still has a chance to get out of the bind she has created for herself by abandoning her commitment to the Section 30 process now.
Like I say, the fact that nobody is able to even attempt to address the concerns regarding the Section 30 process has to be taken as indicating that those concerns are entirely valid. Which means that there is no point in “testing” the Section 30 process. We know that it is bound to fail. Unless, of course, you believe that the British establishment is suddenly going to experience a miraculous metamorphosis. I don’t believe in magic.
Nicola Sturgeon has staked everything on magic. Not least, her own political reputation. When I point this out, nobody is able to provide a non-magical explanation of how it all works. Instead, they insist that I should share their faith in magic. I can’t do that. I won’t do that. Age is likely to deprive me of my intellectual capacities soon enough. I’m not going to forsake them voluntarily.
Incidentally, Geoff, I maintain that the people of Scotland are sovereign. Which means we already have the right to decide our nation’s constitutional status. The very act of requesting a Section 30 order compromises the sovereignty of the Scottish people. I do not consent to that.
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Still harping on about not requesting a Section 30 Order whilst you still haven’t answered the question that’s been put to you on numerous occasions by a number of people on here. That is what do you suggest she should do?
And did you not read the Sunday National yesterday? Michael Russell stating, “The pursuit of redress through the Courts”……
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Supposing we do have our own referendum, which the unionists will boycott, and yes comes out at,say, 55%. Is that not how it turned out in Catalonia and would the result be genuinely valid?
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That does not address the concerns about the Section 30 process. Why worry about something that we’re told isn’t happening when there are so many problems with what is happening?
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PETRA wrote: ‘And did you not read the Sunday National yesterday? Michael Russell stating, “The pursuit of redress through the Courts”…’
What court in God’s name, has jurisdiction over the inalienable right of the Scottish people to choose how they shall be governed and by whom?
Perhaps you PETRA, or the other blockhead you quote could answer that.
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The problems with “pursuit of redress through the courts” have been explained on a number of occasions. Blockheads tend not to be interested in such explanations.
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Just to lob in my own mini hand grenade, you needn’t ‘go nuclear’ and put everything on the line on a single legal resolution. I have said repeatedly Scotland could make great purchase simply by asking the ECJ to clarify their Revocation of Article 50 Adjudication, (whereby revocation was deemed to be a sovereign prerogative of the State which submitted the notice), and simply enquire whether Scotland could cite it’s own sovereign constitution and democratic mandate and exercise it’s own prerogative to revoke Article 50 unilaterally.
Why this appeals to me as an option is that it is scalable. You could ask for anodyne clarification as a point of clear principle, or, at the other end of the spectrum, Scotland could simply revoke Article 50 unilaterally and trust that the law will honour the principle which underwrites such a bold Constitutional initiative. But the really fertile ground lies somewhere in between…
I very much like the situation whereby the ECJ concedes Scotland could revoke unilaterally, because it it implicit in doing so that the ECJ recognises Scottish Sovereignty, and if the ECJ recognises Scottish Sovereignty, then the EU will be obliged to recognise it too. Once both the ECJ and EU are obliged to recognise Scotland’s Constitutional legitimacy, the whole Brexit process and Withdrawal Agreement are derailed, and returned to the start, only this time around, Scotland is recognised as a sovereign component which cannot be excluded from negotiations.
The real beauty in that, is that Scotland would be securing International Recognition as a sovereign Nation while still in the UK. Rather than Westminster arbitrarily rewriting the Articles of Union with the likes of EVEL and most recently, dissimilar economic zones within the Union, for once it would be Scotland flexing it’s Constitutional muscle inside the ‘elastic’ UK, and being recognised internationally as a sovereign Nation inside a bilateral Treaty of Union, which has become largely untenable.
Scotland would, to all intents and purposes BE an Independent Sovereign Nation, and the IndyRef whenever it happened wouldn’t need to shoulder the responsibility of creating a nation. It could be readily distilled to the prosaic question whether Scotland should repeal the Act and Treaty of Union.
In essence, Scotland will have set sail for Independence, but given itself a transitional status to negotiate International relations by itself, while still technically part of the UK, and the UK could be given the final coup de Grace whenever the mood took us.
That might sound flippant, but I don’t mean it like that. I would hope that Scotland with International Recognition of Sovereignty would legislate it’s own Scottish Continuity Bill, and take back control of Broadcasting, then set about undoing the decades of BritNat indoctrination of our electorate before voting on dissolution of the Union.
All of that begins with rolling a snowball down a steep hill. Ask the ECJ to clarify whether the Constitutionally Sovereign Scots can revoke Article 50 unilaterally on their own, democratic and sovereign 2016 No to Brexit prerogative.
And the worst? The ECJ might say the sovereign prerogative belongs to the signatory of the Treaty, and as such the “UK” is indivisible. Then we are no worse than where we are already, but have critical impetus behind an urgent Constitutional Test Case, not with Westminster, but the ECJ. I believe we would win that. Scots Law already has International recognition, and by the ECJ.
When people ask “meh, what would you do?”. There is my answer. Revoke Article 50 unilaterally, or for those of more delicate constitution, , don’t ask Westminster for a Section 30, ask the ECJ to recognise our 2016 Remain mandate instead…
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The basic idea here is sound. It recognises that there is no route to independence abiding by the laws, rules and procedures established by the British state for the purpose – primary or incidental – of preserving the Union. The rules will have to be broken. The only question is, which rule is to be broken. And which court will ultimately adjudicate on the matter.
Unilaterally revoking Article 50 would certainly be breaking the rules. But it wouldn’t be breaking the British state’s rules. It would be breaking the European Union’s rules. Straight away, we see from this that it is not an option. Quite apart from the fact that, by the time the case got to the European Court of Justice (ECJ), the UK – including Scotland – would no longer be a member state. The ECJ would have no jurisdiction.
Even supposing there was a way to get this matter before the ECJ prior to Brexit, it is not at all clear what grounds there might be for arguing that the invoking of Article 50 was contrary to European law. The fact that something is, to the mind of an impartial observer, evidently unjust, does not necessarily mean that it is unlawful. That Scotland is being wrenched from the EU against the democratic will of the Scottish people is as undeniably unfair as it is incontrovertibly true. But no EU law has been broken in the process. The ECJ interprets European Union law. It does not resolve injustices.
You actually hit on what is probably the best course of action in your final sentence, before going back to depending on the ECJ again. Despite what the blockheads here will almost certainly tell you, I have repeatedly stated my preferred course of action to take forward the fight to restore Scotland’s rightful constitutional status. The rule that must be broken has to be a rule imposed by the British state. And there must be a solid case for arguing that the rule should not apply in the first place. The requirement for a Section 30 order fits the bill very nicely. It can readily be argued, with reference to a body of international laws and conventions, that the requirement for a Section 30 order represents and undue restriction on the exercise of the right of self-determination as guaranteed by the Charter of the United Nations.
We don’t take anything to court. We act, and defy the British state to challenge the action in court. There is a strong likelihood that they would not do so. It is quite possible that they would attempt to concede the point on the matter of self-determination specifically whilst seeking to restrict the competence of the Scottish Parliament to the matter of a constitutional referendum alone. But, as with devolution, the more that power is conceded, the more difficult it becomes to justify continuing to withhold power. If it is conceded that the Scottish Parliament has competence in the overarching matter of a nation’s constitutional status, then it is seriously problematic to argue that it cannot have competence in matters that are subsidiary.
Scotland’s independence will not be restored by the ECJ, or any other court. The ultimate authority, in this issue as all others, is the people of Scotland. Independence will be restored by the people of Scotland electing representatives on a mandate to dissolve the Union who will then act through the Scottish Parliament to honour and implement that mandate. We have the power. We need to assert it.
PS – You should realise that the reason people ask “meh, what would you do?” is to divert attention from their inability to address the many concerns about the Section 30 process. Since that is what the First Minister has committed to, that is what we should be scrutinising. But the blockheads would much rather talk about hypothetical courses of action rather than what is actually happening because they are totally incapable of explaining how the Section 30 process might work without resorting to fantastical magic. And totally incapable of explaining why we should accept it without resorting to blind faith.
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“…The basic idea here is sound. It recognises that there is no route to independence abiding by the laws, rules and procedures established by the British state for the purpose – primary or incidental – of preserving the Union. The rules will have to be broken. The only question is, which rule is to be broken. And which court will ultimately adjudicate on the matter…”
In a nutshell, Mr Bell. The only court that can afford us international recognition along with our rights as a partner in the Union, and as a member of the international community of nations (along with UN Charter rights) is the International Court of Justice and/or/both the Floor of the UN itself. It matters not a jot if we win a referendum, we are still going to have to negotiate via the Treaty with England, and they will try to usurp our rights even then. I can understand to an extent why Nicola Sturgeon wants to demand a S30 Order, but she should not, in any circumstances, try to chase the UKG in a domestic court. She cannot win there.
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Hi Breeks/Mr Bell,
Just looked in on blog today, and I hope you don’t mind my butting in here, Mr Bell, on a one-off:
“…I have said repeatedly Scotland could make great purchase simply by asking the ECJ to clarify their Revocation of Article 50 Adjudication, (whereby revocation was deemed to be a sovereign prerogative of the State which submitted the notice), and simply enquire whether Scotland could cite it’s own sovereign constitution and democratic mandate and exercise it’s own prerogative to revoke Article 50 unilaterally…”
Only the member state can do this, Breeks. The UK is the member state. However, the Treaty of Union can be ‘sound’ in international law in the ICJ, and it, if upheld, affords us the right, as a partner state in the Union, to use our successor state status and foil Westminster. Better still, we can threaten to use this if Westminster tries to stymie us, because they will undoubtedly want successor state status all to themselves. Our successor state status will be crucial in any negotiations with Westminster, however we leave the Union, and Westminster can only use subsumption against us, as they tried to do in 2013/14. It is a load of codswallop. Scotland was never subsumed into a Greater England, and every iota of law militates against that assumption, as Cameron discovered. Mr Bell is correct that the SNP leadership have effectively backed themselves into a corner, but it is not a corner that they cannot negotiate out of. They are simply not using the right tools to do so.
Resiling the Treaty, or just, initially, having it ‘sound’ in law gives us a massive advantage against the might of the British state. We will need something because our Claim of Right/sovereignty/whatever will not wash, I’m afraid and will hold no authority in international circles. Perhaps that is what Nicola Sturgeon envisages eventually, but she would be wasting time, effort and money, on any domestic legal solution. If the S30 Order is refused (she must demand it very soon) then she cannot afford to pussyfoot around after that because Johnson fully intends to have the bulk of the EU negotiations done and dusted by the end of 2020, when a second referendum has been planned. It has to be held sooner than that because, if the right-wing alliance that is Johnson and Farage wins this GE, we are all up a creek without a paddle because neither of these people are in any way willing to loosen Scotland’s bonds any time soon, and the Lib Dems are so treacherous that they cannot be trusted on any level, while Labour are just as British Nationalist as they have been since before 2014, and would just prevaricate.
Incidentally, Breeks, we don’t have sovereignty in our own right, as recognized by international law, but neither does England. The UK holds that. The political state that is the UK holds all sovereignty, and our Claim of Right has only ever been exercised through Westminster and the shared sovereignty of the British parliament. That is why devolution is a dead end in itself and cannot bring us anything approaching FFA and federalism unless Westminster wills it so. In ‘normal’ circumstances, the UKSC has upheld the Sewell Motion on consent of the Scottish parliament, but Johnson will claim ‘not normal’ circumstances with Brexit and get round it. The UKSC would uphold that position, I’m afraid, as it has already ruled on it. We must be absolutely realistic about what we can do and work with what we have or we are in for a very sorry time of it. It is the lack of initiative and doing all the groundwork that is worrying – very worrying. It suggests a dragging of feet or very bad advice around the FM, either of which could prove fatal to our endeavours on independence. A lack of cojones is also apparent, or is it just the British State using plants within the Scottish government circles to frustrate and hinder and, eventually, destroy? One must wonder.
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Always good to hear from you, Lorna.
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I don’t agree with you Breeks, as you well know already, as for one Scotland isn’t an EU member state therefore revocation of article 50 is outwith our remit. In other words the ECJ would chase us. And it looks as though through mentioning acquiring our Independence via the Courts you’ve just acquired the title of “blockhead” on here. You at least outlined what you would do, whilst we’re still waiting on Mr Bell’s “revelations.”
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You’re reading without comprehension Petra.
Where did I say we secure Independence through the Courts?
I advocate we revoke Article 50 Unilaterally by securing clarification of legal pronouncement already made, in the Court which made it, already brought under Scot’s Law which that Court already recognises.
We don’t end the Union by legal diktat, but we do stay in Europe by sovereign prerogative.
It isn’t our legal initiative which terminates the Union, but it’s having the backbone to defend our EXISTING Constitutional Integrity which the UK Union will find unpalatable, and any ongoing administration of the UK once Scotland has a sovereign veto while still inside the UK will make the UK Union untenable. It will fall apart rather than be voted down in a corrupt and deeply flawed Referendum process turned inside out by BritNat propaganda and indoctrination.
We can hollow out the UK Union from the inside out. Leave the shell of the United Kingdom to live or die by public opinion or ‘token’ referendum, but emasculate its power and control over Scotland by defending our sovereign capacity to say no… We said No and we meant it. That ought to resonate you’d think…
Secure the sovereign power of a nation state, and the title will follow as an academic formality.
The “flaw” in legal process, which I readily accept, is having no electoral mandate to underpin it, but revoking Article 50 already HAS our democratic and sovereign Remain mandate already in place. We stay in Europe by sovereign resolve. If Westminster demands to leave, let it try, and by that action tear apart the Union in doing so.
If Brexit happens, let the world understand it will be irremediably terminal for the Union. Let Scotland’s Unionists appeal to Westminster to stop Brexit because dissolution of the UK is the inevitable consequence of Brexit. Why in God’s name we’re trying to stop Brexit for them is utterly “through-the-looking-glass” bizarre.
The “case” doesn’t matter. What matter’s is defending Scotland’s existing sovereign principle AS existing sovereign principle. Revoking Article 50 would succeed in my opinion, and once the principle is established, the Union is doomed.
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Well I hope this works. Taken from the WGD site. IndyCarRoss on suing Boris Johnston.
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“It’s easy enough for me to criticise Nicola Sturgeon’s approach to the constitutional issue. I have neither position nor status in the SNP. I have nothing to lose by asking the awkward questions about the Scottish Government’s strategy. I am free to think the unthinkable and say the things that many would prefer were left unsaid. My first loyalty is to Scotland’s cause, not to any political party or leader.”
My first thought, Peter, was “This is admirable”. I have, however, realised that it should be normal! Thanks for all your dissenting opinions, which seem to me to make sense! Now others seem to be starting to see sense.
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I have to confess, the unilateral revocation of Article 50 has maybe missed it’s window of opportunity, but in fairness, I started making the argument earlier this year, as soon as Joanna Cherry won the judgement for the ECJ that revocation of Article 50 was a sovereign prerogative. That was the time to do it… It seemed like an open goal.
I didn’t propose to overturn the adjudication, but build on it. Seek the rather obvious clarification whether Scottish Sovereignty, (citing the Claim of Right acknowledged by Westminster), provided an adequate constitutional platform for Scotland to exercise a unilateral sovereign prerogative to revoke Article 50 for Scotland alone.
Scots Law, recognised internationally and manifestly recognised by the ECJ, exists by virtue of the same constitution as Scottish Sovereignty. Otherwise, Scots Law is abstract Law without the authority of a Nation. If Scots Law can exist simultaneously and yet be recognised as distinct from UK Law, then so too can Scottish Sovereignty.
Even if the ECJ and EU baulked at the idea of International Recognition for Scotland’s Sovereign Constitution, I don’t believe they could dutifully overrule the possibility either, and Europe would have to embrace the notion that the UK had a profound and obdurate issue of formally disputed sovereignty, which required formal resolution before any version of Brexit could be ratified or form the basis of any agreement.
Scotland would thus have a backstop, and the UK would have to “sort itself out” before Europe knew who or what it was dealing with. (That wouldn’t necessarily halt Brexit, but it would paralyse negotiations).
The UK could not secure a Withdrawal Agreement without resolving the Irish Border problem, (at the time), and I think Scotland could have had an even stronger Backstop that the “UK” or whatever was left of it, could not secure any agreement with Europe without first resolving the issue of disputed sovereignty.
Again however, such opportunities feel like missed opportunities defeated by chronology, and a somewhat stunted prey drive amongst our SNP politicians.
There are many ways to skin a cat, and I’m no lawyer, but there is something missing in our arsenal when these Constitutional options are being bypassed and not even being discussed. That’s very frustrating. But what I find downright alarming is the argument that Scotland’s emphatic Remain mandate in 2016 counted for nothing, but somehow a Scottish Referendum edging a YES vote, or even emphatically winning a YES vote is going to prove definitive, and be immediately recognised, especially if predicated by a Section 30 Agreement. Oh yeah? By what measure? By whose authority? Magic? A suddenly benign Westminster Government? Or are we voting to invent a brand new Constitutional entity that is distinct from Scotland’s ancient Constitution? A Sevco Scotland which just wears the auld strip?
We don’t have to borrow our own sovereignty, nor request Westminster’s permission to exercise it… but from what I can see, it appears that’s precisely what we are doing.
Our Brexit Remain Vote counted for nothing.
Our 53 out of 56 MP’s availed us of nothing.
Win, lose, or draw, how does any outcome of December’s General Election ACTUALLY translate into a constructive initiative with meaningful consequences for Scottish Independence? Sorry to bust your bubble but it doesn’t. This General Election, indeed every General Election, is just another round of political jeopardy for the SNP to survive or retreat from. It’s a fix. It’s worse than a casino. There’s a hundred opportunities to lose, but no opportunity to win. The only possible victory is that the SNP remain in power, and we all take our seats for the next round of Constitutional stalemate… Except it’s not stalemate is it? It’s a return to our ongoing subjugation.
Either take a shit SNP, or get off the pot.
I’m sorry Democrats, the ONLY way to secure respect for Scotland’s Sovereign voice lies through recognition of our Constitutional Sovereignty, yet our politicians seem to be in denial of this essential truth, and blinded by a Utopian concept of democracy that maybe does exist, but not here is the grubby and perfidious UK. Sooner or later, we have to break the rules in a game that is rigged against us.
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Breeks do you really think that Joanna Cherry would have “missed an opportunity?”
Nicola Sturgeon will request a S30O following the GE, it MAY be rejected and if so the case will go to Court citing the Claim of Right, the Treaty of the Union and of course the sovereignty of the Scots. Then we’ll hold a referendum and win it which will satisfy the EU and the international community. That route will avoid ongoing legal challenges and creating civil unrest, to some extent. There’s no need to convolute the whole issue or attempt to undermine the only person / political party that’s actually capable of getting us our Independence. What’s the point of doing that?
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Lorna (12:42pm), I’m sure that Nicola Sturgeon will be totally conversant with which legal route to take. She’s no doubt discussed the way forward for Scotland with the multitude of legal / constitutional experts that she has at her disposal.
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Which ones would they be, Petra? Do enlighten us, as the SNP is utterly determined not to. No, Nicola Sturgeon has ruled out every other route except a S30 Order and a second referendum thereafter, which suggests to me that she has not sought, seriously, the advice of Scottish constitutional experts. Yes, she has relented a little in that she has spoken of taking legal action, but there is none that would not fall foul of the UKSC’s ruling in the past if she sticks to the domestic legal arena. I can think of several Scottish constitutional jurists, and they all agree that the Treaty route is the only viable one. I do not claim to be an expert on constitutional law, but I have studied it for many years and have read a great deal of literature on the issue of the Treaty, and all the experts I have read, apart from Crawford and Boyle, are of the opinion that the Treaty is international, that it still exists and is not superseded by devolution (my own opinions, too, after much consideration) and that, in the end, because it is the founding legislation of the UK, it must be referred to in any negotiations with the UKG regardless of how we reach independence. I do not claim it is a panacea, but it is very, very important, and may yet prove to be the only way out of this infernal Union. You assume too much, madam, in assuming that critics of the tactics and strategy utilized by the SNP are trying to do down Nicola Sturgeon. On the contrary, she may yet have cause to thank us for our interventions. Personally, I have always supported her progress, but none of us is infallible, not even you, Petra. Oh, and while Joanna Cherry is an admirable person and a fine lawyer, we should avoid the unthinking and slavish refusal to question both Ms Cherry and Ms Sturgeon. Like the rest of us, they are human and, therefore, liable to all the human frailties – just like the rest of us. Nowadays, I think we need to bring back the Grim Reaper, symbol of Power’s mortality and frailty, that used to be displayed in front of overreaching monarchs. I’m not saying these two women are in need of that reminder, but they could do worse than listen to their members. Nothing wrong with that, surely?
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Petra, you have trust where I have been blessed with scepticism. It’s not that I don’t trust Joanna Cherry, I do, and I’m very glad she’s on our side, but she seems to pull her punches. Prime case being Article 50. Full marks for creating a Brexit Kill switch, but why stop short of giving Scotland one? Aren’t we capable of a sovereign prerogative?
The other point I’ve made more generally is that Constitutional machinations should be constantly ongoing and expansive in my opinion, certainly not kept secret. There is great danger in leaving a legal/constitutional intervention until last minute, because it then reeks of last chance desperation, and raises the chances that legitimate constitutional rights suddenly appear dubious and contrived, and less likely to be accepted by the masses.
Personally, I would have the whole population of Scotland, independentist and unionist alike, all word perfect on the text of the Declaration of Arbroath, and fully familiar with it’s Constitutional ramifications. Such knowledge would erode their confidence, never ours.
And Lorna, as I’ve said, IF the ECJ did sidestep the Scottish Constitutional question and bail out to declare that only the signatory Nation, UK, can revoke Article 50 as Member, then we’d be no worse off than where we already are, but with a fresh and vital Constitutional dispute to pursue.
I would also say you are wrong too Lorna. Scotland does have sovereignty, complete with sovereign birth certificate in the Declaration of Arbroath, The 1328 Treaty of Northampton/Edinburgh, and over 700 years of uncontested provenance to back it up. What Scotland lacks is not sovereignty, which has never been removed from the people, but International recognition of that sovereignty, which has been wilfully misrepresented for over 300 years.
That’s the whole point of a Constitutional approach… have the misunderstood legitimacy of Scotland’s Constitutional integrity versus the faux, but internationally recognised and “established” UK Parliamentary Sovereignty, put under the microscope in a Constitutional Courtroom.
The UK Union should never ‘properly’ have existed in the first place. English Sovereignty through its monarch never was, and never will be, never can be, compatible with Scotland’s Popular Sovereignty. No Union of Sovereignty is remotely possible. The UK Union can only exist as it does, with Scotland’s unconstitutional subjugation and Scotland’s acquiescence to be “robbed” of their sovereign rights. That is unlawful.
How can we ask any other Nation to respect Scotland’s Sovereign integrity when we don’t even have faith in it ourselves? We need to put our own Constitutional house in order first, and there isn’t a damn thing stopping us except our own lack of faith in ourselves and our Nation.
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“…I would also say you are wrong too Lorna. Scotland does have sovereignty, complete with sovereign birth certificate in the Declaration of Arbroath, The 1328 Treaty of Northampton/Edinburgh, and over 700 years of uncontested provenance to back it up. What Scotland lacks is not sovereignty, which has never been removed from the people, but International recognition of that sovereignty, which has been wilfully misrepresented for over 300 years…”
Our sovereignty as a political state was ceded to the British parliament, Breeks, and I have never read any constitutional source that said otherwise, even those that support our cause. I do not say that to be a Jeremiah or to be a smart a**e, just to point out that we must be realistic and face the truths that are difficult. When the two parliaments basically dissolved themselves to come together as the British parliament, they created a new constitutional and political entity. I’m afraid even the Treaty of Union concedes that. I have always been afraid of the fact that we might overreach ourselves in what we believe is the position when we should err on the side of caution. Yes, Westminster conceded that we have the Claim of Right, but they did not concede that the Claim of Right could be exercised independently of Westminster, and it never has been. Likewise, we tend to overplay the Declaration of Arbroath, albeit it is the founding document for Scottish Constitutional Law. It is so often what is not stated, not written down that is the bugbear. Really, all we have in reality is the Treaty of Union and that must be ‘sound’ in law before we can build a case on it.
However, the Treaty Articles – those that have not fallen into desuetude or been superseded by modern events – still exist and cannot simply be breached at will by Westminster. This is precisely what has been happening because we have allowed them to get away with it – even the SNP government never challenges on the Treaty. Our biggest problem is that we have acquiesced in everything the UK has done and said since 1707 by default. That has to stop. Now. Mr Bell is absolutely correct when he says that we do little to counteract Westminster’s monstrous egotistical rampage through our constitution and that only by standing up to them will we ever be able to extricate ourselves. If we are going to use the law to get out of the Union, I hope to God that the SNP leadership chooses the right law and the right court or it will all be too, too late, if it is not already. Johnson will do everything he can, if he wins on 12 December, to have us out of the EU within the year, sooner than Nicola Sturgeon was banking on for the referendum.
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The ECJ would not be avoiding the the Scottish constitutional question, as you imply. It simply wouldn’t have jurisdiction. And it’s not necessarily true to say that we’d be no worse off. It may very well be advantageous to leave the outcome in doubt – as the UK did during the 2014 referendum campaign in relation to the matter of Scotland’s post-independence status with the EU. But judiciously avoiding asking the question, the Brits were able to continue peddling the notion that Scotland would be ejected/excluded. This was a powerful piece of anti-independence propaganda which would all but certainly have been denied to them had they requested a formal opinion from the European Commission.
Although probably not applicable in the circumstances to which you refer, there is also the danger that a court decision will conclusived a matter in an unhelpful way. The example of the Section 30 order is illustrative. Imagine, if you will, that the Section 30 order has been requested (or demanded) and that request (or demand) has been refused, or ignored. The Scottish Government then resorts to the courts and takes it all the way to the highest court with jurisdiction – and loses! What then?
We would then be in a situation where the Scottish Government has acknowledged that (a) independence can only be restored by way of a referendum, and (b) a referendum can only be held with a Section 30 order. And the courts have ruled that the UK Government is fully entitled to refuse that Section 30 order. The independence campaign grinds to a halt, trapped in a cul-de-sac.
That’s the risk of taking an issue to the courts. If you don’t get the result you want, you may be left with nowhere else to go. You may be left wishing you’d kept the matter in the political arena, where it can be kept open for as long as somebody is prepared to continue the campaign.
The only answer we get to such concerns is that we should ‘have faith’ and believe in a happy ending that comes about by some totally mysterious process. I have to say, it might be quite pleasant to be stupid enough to entertain such delusions. Dealing with reality can be very harsh at times.
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Mr Bell, I, too, have gone backwards, forwards, round and round, up and down until I’m dizzy, but, like you, I can make neither head nor tail of the SNP’s stated position. If there is some secret at the heart of the SNP leadership in relation to independence, there is simply no way that the British State would not know about it, which is is why the refrain, oh, but they don’t want to show their hand, is meaningless. They know everything, and only keeping everything above board and, crucially, right out in the open, can work. This Messianic approach to whatever the leadership says or does is frightening and worrying, I have to say. I like Nicola Sturgeon and she and her team have done wonders for Scotland in he domestic arena, but a completely different approach is now necessary in the wider independence sphere. We now need to use every weapon at our disposal, every method and route we can to get out of the Union because nothing can fix this mess until we are out of the Union. Another independence supporter, in the wake of two before him, opines, in The National comments pages, that the English parliament carried on.
Dear, sweet Jesus, if our own supporters believe this c**p… A wealth of evidence exists to show that both parliaments closed down and formed a new one – the British parliament. Because it was, and remains, sited at Westminster is not important – the monarch was already in London and put of Scotland, so that made sense (at the time and in the political climate of the period) – but it, in no way means that the English parliament continued. I don’t care what Crawford and Boyle wrote: it’s nonsense. They were doing a job of work on behalf of a rather ruthless PM, Cameron, who discovered that, if people could be persuaded that Scotland had been subsumed into a Greater England, the contenting/successor state dilemma for the British State could be made to disappear. The Treaty is screaming out to be ‘sound’ in law. I do not understand – and never will – why the SG does not do this immediately before, or even while, bringing a case to the ICJ to resile it on the grounds of numerous breaches by the English part and ultra vires actings through it by the UKG since 1707. Relying on a right-wing alliance between two of the most unsavoury characters ever to disgrace British politics to ‘allow’ us to leave is madness on stilts. The reasons for the Union in 1707 remain extant today, and they have everything to do with English aggressive nationalism and nothing to do with Scottish bankruptcy (another myth that requires to be busted). Individuals were bankrupted, the state was not.
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I have found the discussion above very interesting. And illuminating in an unexpected way.
We have on one hand Petra peddling the party line. There is no substance behind those pleadings; questions are answered with questions to deflect/divert, the exceptionalism of the leader is called on to justify and complaints about disunity are made.
On the other hand we have Peter himself, Breeks and Lorna explain at great length, citing all kinds of evidence, that perhaps the party line is ill-founded.
I must say I am instinctively with those who require evidence in order to support a political proposition and since there has never been any coming from the leadership in theirs, I cannot support it.
But, and here is the light bulb moment for me, I am in a minority. Most of us do not need or want sophisticated arguments in order to come to a political ‘decision’. Most of us are turned off completely by evidence, especially legal citations, and seek something easier to digest. Best of all, can someone we believe is worthy just undertake all this difficult stuff for us and tell us what to believe?
As long as the party membership and most of the Yes movement believe that Nicola is the chosen one, they will simply accept whatever she says. So, from the moment she became leader party, HQ has indulged in the most blatant internal propaganda exercise. It started with the infamous Hydro rally when HQ ignored the NEC instruction to organise regional hustings for the Depute Leadership election and spent ludicrous amounts of money on a coronation event instead. Everyone got a free foam pointy fingered hand though.
Alongside the never-ending ‘positive’ propaganda from HQ, any criticism is shouted down by the huge army of cybernats who take their lead from Twitter / FaceBook memes whose origin remain a mystery to all but those who are prepared to think about it.
Trying to argue against Nicola inside the SNP or Yes Movement is like trying to argue for Yes against No, Clinton Democrat against Trump Republican, Remain against Leave. It doesn’t matter what the weight of evidence is or how articulately you argue it, the majority have made up their mind on the basis of who and what they want to believe.
(And any psychologist will tell you that the more you wave foam pointy fingered hands in the air, the more you will want to believe the person whose name is inscribed on those hands.)
There is plenty more I could say but it would stray from the primary point here. The bottom line is that if we want to change the leadership’s position, being right is not the most important thing.
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I suppose it’s down to trust. Whether you trust Scotland’s sovereign constitution would ultimately prevail in a Constitutional Courtroom, or whether Scotland’s Independence arguments will prevail in a referendum bedevilled with disruptive propaganda and indoctrination, which as far as I can see, still then needs to secure the very same constitutional recognition before the result counts for anything.
I prefer the odds and clarity of the former, especially if it’s ECJ and we’re still in Europe… But ultimately, this is a UN matter.
You’re correct that the ECJ has no direct Constitutional jurisdiction, but revoking Article 50 is European Law which they can adjudicate, but even so, I agree, I think they would be unable to make a judgement until the ‘disputed’ Sovereignty was resolved… but even recognition that UK Sovereignty was disputed would be progress, if we’re suddenly back at a Scottish Constitutional Backstop which complicates Brexit.
The ECJ ‘might’ be persuaded to hypothesise that Scotland could revoke Article 50 unilaterally IF they met certain preconditions whereby sovereignty was proven… but Joanna Cherry can only work miracles occasionally, and Courts tend to curtail ambiguities rather than exacerbate them.
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@ The Dissident
I would take any solution to solve the puzzle, Constitutional, Democratic, or pure random Luck, and I would also be perfectly satisfied to wrap that solution and leave it as an anonymous gift below the Christmas tree for Petra to discover on Christmas morning and have her faith and loyalty rewarded in buckets. We all want the same thing.
It’s not so much that I think the SNP is wrong in their approach or misguided, but incomplete in their approach. There are important elements missing and ominous questions unanswered, an no, I’m not all satisfied to believe such things are operational secrets. I fear political hubris frankly.
I can fully appreciate the strength of winning Independence via gold standard democracy, but why shouldn’t gold standard democracy be underwritten by, and indivisible from, a gold standard and internationally recognised Constitutional Sovereignty tested and affirmed in law?
Scotland changed the world with the phenomenon of it’s 14th Century Constitution. We should use it. It is infinitely more profound and resolute than the tawdry articles of Union “bought and sold for English gold”.
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Nicola Sturgeon was the speaker at a meeting that I attended in the last few days (excellent as usual) and she stated that following the GE she’ll set out how she intends to deal with a refusal of a S30O, if that comes to pass. Answering the question that I put to her.
Hopefully that will bring to an end people ”going backwards, forwards, round and round and up and down.”
And Breeks looking forward to receiving my Christmas present. Ta very much.
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Great, Petra, but let’s hope it is no later than Spring 2020 that action is finally taken, because leaving it any later will allow – I like that word in this context, don’t you? – Johnson to begin the negotiations with the EU, and we will be tied into them whether we like it or not, our powers and precious resources used to consolidate them, whether we like it or not and we will have no voice at all, whether we like it or not. I wish you could see past your own adulation and see that the domestic sphere is not the same as the international sphere, and, in the international sphere, i.e. independence, we must behave differently and with far more determination and clout than to date. If Johnson wins again with Farage’s help, there will be no stopping the right-wing coup that will take place. Even the disenchanted – and politically astute and those with a tiny residue of conscience – in the Tory party can see where we are headed, where we were always going to be headed, whatever we did within the constraints of the UK. I have said it before and will say it again: from 2016 onwards, there never was any other option for Scotland than to leave the UK. Now, it may already be too late, and challenge in the domestic courts is also pointless at this stage. The truth is that the SNP leadership wanted – and still wants – at least ten years’ grace to set up the necessary institutions of state, etc. and which all three British Nationalist parties will do their utmost to prevent (Johnson pulled the plug on the central bank funding). No way will they ‘allow’ that. I cannot think of any country that broke away from the British Empire having ten years’ grace courtesy of the UKG, Petra, can you? We either confront the British State or we shut up for that generation or lifetime that they keep harping on about. Och, well, one thing’s for sure, after Brexit and in the hands of the sociopathic far right Tories, the destruction of the NHS and SNHS will ensure that the lifetime is considerably shorter than it might otherwise have been. Slainte.
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I want Scottish independence to be for all of us – not just the 45% that voted yes, but for all of us.
I know some people will never be persuaded, but I think they’re small in number.
The opinion polls are close to 50/50 right now.
To get to this position in the face of a very ‘anti’ mainstream media is impressive.
A further swing towards independence means persuading those who are currently unconvinced,
but are open minded.
I don’t believe that taking a more radical stance right now is the way to do this.
We have to be careful about pushing too hard against those amongst us who have doubts.
The SNPs position isn’t of their making, I think it’s a pragmatic stance to take in a system
that was set up to restrict the power of the Scottish people.
Let’s use the election in Scotland to cement our direction of travel, and take one step at a time…
We’ll get there, and we’ll bring more people with us.
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How long do you think we have? That’s the trouble with folk who come out with trite banalities like “one step at a time” imagining it makes them sound wise; they’ve thought as far as the first glib cliché or glittering generality to pop into their head, then stopped thinking altogether. They NEVER consider the consequences of delay. They seem to suppose that history is going to stand still while they wait for the mythical ‘optimum time’ to appear. Ask them how they propose to deal with what the British state does in the meantime, and you get the virtual equivalent of a blank stare – followed by another outpouring of dumb bromides and awdry platitudes.
It doesn’t occur to these shallow-thinkers that we’ve been doing as they advise for over five years, and the polls haven’t moved out of standard margin of error territory. They are in total denial of the fact that their thoughtless, reckless, heedless ‘strategy’ isn’t working. They will even refer to the incontrovertible evidence that it’s not working and still be unable to see that evidence. I could explain why that is, but long, wearying experience tells me it would be a complete waste of time.
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