This article started as a reply to a question asked in the comments on an earlier piece. In an effort to provide a comprehensive answer I went on a bit. Like I do.
What happens after the FM renounces Section 30 as a means to independence and wins another election on a mandate for independence? Legal action? UDI? What’s the plan?
Let me start by saying that UDI isn’t a ‘thing’. The term ‘unilateral declaration of independence’ doesn’t refer to a single well-defined process. It’s basically just a legalistic way of saying ‘becoming independent’. It’s the term powerful imperialist nations deploy when the less powerful nations they’ve annexed seek to restore their rightful status. It’s supposed to make that attempt to restore constitutional normality sound illegal. And it fools all too many people. Especially on account of the term’s close association with what went on in Rhodesia in the mid-1960s.
The term UDI is intended to convey the idea that any attempt by an annexed territory/people to restore independence without the approval and consent of the annexing nation is unlawful. It’s how powerful imperialist nations hope to get around all those inconvenient international laws and conventions that they were obliged to sign up to in order to… well… that’s another story. Or another chapter of the same story. Let’s just say that while international laws and conventions guarantee the right of self-determination to all territories and peoples, local legal and constitutional frameworks may be contrived to create impediments to the exercise of the right of self-determination.
Ultimately, none of these impediments can stand in the face of those international laws and conventions. But they may just make it difficult enough to deter any attempt to exercise the right of self-determination. Especially if the ‘natives’ can be convinced that the impediments are real and substantive.
Meet modern Scotland!
Impediments such as the idea of UDI being horribly illegal, will evaporate if challenged. It may be necessary in certain circumstances to apply a lot of heat in order to bring about this evaporation. But a strong and tenacious challenge must ultimately succeed. The trick, as far as the powerful imperialist nation is concerned, is to make the ‘natives’ reluctant to mount that challenge in the first place. Or, if the challenge is mounted by others, to support it.
Meet modern Scotland!
There is no one ‘thing’ called UDI. Circumstances and conditions are different for every nation or people trying to break the shackles of imperialist annexation. Each instance is unique. But it is important to understand that just because Scotland’s precise circumstances are not identical to those of the colonies and other territories which previously broke those shackles doesn’t mean that the shackles binding Scotland to the British state aren’t just as real as any that bound other victims of imperialist avarice and fear. The Union was imposed as means of ensuring that Scotland was always subordinate to England. The Union hasn’t changed. It’s purpose hasn’t changed, even if the circumstances in which the purpose plays out are seemingly very different. It’s about power. It has always been about power. No matter how much the circumstances change, it is always about power. Politics is the management of power relationships. The Union is a device by which England sought to ensure that it always had an advantage over Scotland in managing the power relationships between the two. Essentially because that advantage bestows other advantages in the management of other power relationships.
Like all relationships. it’s complicated!
The thing to bear in mind is that all those international laws and conventions brought in to end the old imperialism apply to Scotland just as much as they applied to any of the other nations which chose to challenge the remnants of old imperialist power. Scotland is not a colony! In a way, we are in a worse position. We are more akin to informally annexed territory. But we still enjoy the protections and guarantees of those international laws and conventions. They still apply. Any challenge to the remnants of British imperialist ambition must succeed. If that challenge is strong enough and tenacious enough.
It should be obvious, however, that no such challenge can possibly be mounted within the legal and constitutional framework set up by the imperialist power for the purpose of preventing – or at lease deterring and impeding – any challenge. If a challenge is to be mounted it must step outside that legal and constitutional framework. That’s where UDI comes in. As soon as the annexed nation (Scotland) steps outside that legal and constitutional framework, the imperialist power (England-as-Britain) starts screaming “UDI!!!” in the hope of scaring the ‘natives’ back into their submissive boxes. In Scotland we call this tendency to remain in or return to those submissive boxes The Cringe. Scotland is not, strictly speaking, a colony of England-as-Britain. But one of the ways in which the old imperialism allowed relatively small nations to hold sway over massive territories and huge populations was the fact that they didn’t have to colonise the entire territory or ‘subdue’ the entire population. All they had to do was colonise enough minds.
There is no route to the restoration of Scotland’s independence which does not require that we step outside the legal and constitutional framework devised and maintained by England/England-as-Britain. There is, therefore, no way to avoid being ‘accused’ of perpetrating an ‘illegal’ unilateral declaration of independence. I propose, therefore, that we take ownership of the term, call it #ScottishUDI and make it mean what we want it to mean.
Specifically, I propose that we step outside the legal and constitutional framework of the Union by asserting the exclusive competence of the Scottish Parliament in all matters constitutional. This is effectively a declaration of independence. But, crucially, it doesn’t sound like it. So when the Brits start screaming “UDI!!!” they’re going to sound a bit ridiculous. Or more ridiculous than is commonly the case. Asserting the competence of the Scottish Parliament sounds ‘reasonable’. And that is what matters. It sounds reasonable because it is reasonable. Who can argue that the Scottish Parliament doesn’t have democratic legitimacy in Scotland?
Asserting (actually reasserting) the Scottish Parliament’s powers over the constitution on the basis of this democratic legitimacy allied to the sovereignty of Scotland’s people is only going to be considered unreasonable by those who seek to deny the democratic legitimacy of the Parliament that the Scottish people actually elect and the sovereignty that is ours by absolute right. People who want to claim that a parliament we do not elect has greater democratic legitimacy than the one that we do elect. People who want to argue, furthermore, that this parliament that we don’t elect has sovereignty over Scotland’s people! That is the very definition of an unreasonable argument. So we force the Brits into a situation where that is the only argument they can deploy.
It cannot be stressed enough that this is a political process. It is a matter of politics, not law. It is about altering the power relationship between Scotland and England-as-Britain to put an end to the advantage the latter gains by way of the Union. It is a matter of normalising that power relationship. That is politics! Not law! The lawyers come along later to tidy up the paperwork. But the process starts and is pursued in the Scottish Parliament by the Scottish Government with a mandate from the Scottish people. Or it doesn’t happen at all.
We win by being reasonable. But also by being bold and assertive and tenacious in our determination to restore Scotland’s independence.
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Peter A Bell 
Great article. I really like the idea of taking ownership by defining what we mean when we declare our independence. We should be putting the Brits on the back foot by making them justify why Westminster, with a ‘mandate’ from a population that 92% of which do not live in Scotland, should have supremacy over Holyrood, which represents 100% of folk resident in Scotland.
This is what the SNP should have been doing these past 6 years. But that is another story…
Regarding “UDI” it is indeed a problematic appellation, given its association with the white racists that declared independence in Rhodesia in 1965. What really happened is that Ian Smith and his cohorts went rogue as they didn’t think they were getting sufficient backing from the Wilson government for their ‘policies’ and feared a sell-out such that they – the White population – would be subjected to … wait for it … democracy.
In reality it was the black indigenous population of Rhodesia that should have been declaring independence as it was they who had been dispossessed and disenfranchised. But that, too, is another story.
Given the negativity linked with anything to do with ‘declaring independence’ – described very clearly in Peter’s article – perhaps we should stay away from that term altogether: How about Scottish Democratic Independence (#SDI) or, perhaps better still, Scottish Independent Democracy (#SID)?
Whatever … I think the idea of tying Democracy to Independence must be the way to go as this implies our cause is legitimate and reasonable rather than reckless and illegal. We take the moral high ground, the opposition have to defend the indefensible.
What’s not to like?
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It is important to take ownership of the term UDI. Take the sting out of it. Same as the term ‘nationalist’. I am comfortable with being called a nationalist because I have taken ownership of the term and don’t permit anyone else to define it on my behalf. My nationalism is what I say it is. Scotland’s UDI is what Scotland says it is. It’s all part of being bold and assertive.
The tie-in with ‘democracy’ comes with the emphasis on the democratic legitimacy of the Scottish Parliament. A democratically legitimate Parliament which is under threat from anti-democratic British Nationalists.
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Agreed: Holyrood is the paramount parliament.
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Agreed: Holyrood is the paramount parliament.
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Will WM and the BritNats not argue that the Holyrood parliament is entirely a creature of WM itself, so that devolution simply created a “glorified county council” if you like, rather than being the old pre-union Scots Parliament revived? The old “Power Devolved is Power Retained” trope. What evidence or (legal?) arguments might be brought forward to settle the matter one way or the other? Otherwise in principle any region, large or small, with a body of elected representatives and a few local bye-laws, might legitimately declare UDI?
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Scotland’s right of self determination has been acknowledged by the British state. Fife’s right of self-determination has been acknowledged by precisely nobody. Because nobody has been stupid enough to make such a claim.
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IIRC when Holyrood first opened it was declared to be a continuation of the original Scottish Parliament and afaik this statement/declaration was never challenged. Am I correct and if so what if any legal standing does this have?
… But … but … but … have you never heard of the Kingdom of Fife? Even now a mob of angry Fifers … 😉
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Winnie Ewing spoke the truth when she declared that the Scottish Parliament was reconvened. But you’re still not getting that its not a matter of law. It’s a matter of politics. Constitutional arrangements are what they are until they aren’t. Until they’re changed. While they MAY be changed by some legal procedure that is not necessarily so. And even where there is some legal procedure it is ALWAYS initiated by a political act or a series of political acts.
You are looking to lawyers for reassurance. That’s a bit like looking to economists for investment advice. Lawyers don’t give reassurance. To do so would require that they commit to a position. They just don’t do that.
But even if lawyers were able to give you the reassurance you seek, how could it possibly be enough if you cannot have confidence in the sovereignty of Scotland’s people and the democratic legitimacy of the Scottish Parliament? It’s a question of mindset. Your ready to engage in the real fight to restore Scotland’s independence when you KNOW that our sovereignty and the democratic legitimacy of our Parliament is enough.
I am a Fifer.
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With you all the way there Peter , the so called unilateral declaration of Indy is a bullet that has to be bitten . We can’t go on with this pleading for a section 30 , a kind of slow death by deferred mandates. There are signs that ordinary SNP members are coming round to accepting the futility of asking for permission from the RUK which would only grant such a thing on there terms when the polls indicate that remain is the likely outcome .
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Well said Peter. An excellent and reasoned argument. I have some caveats though.
1. It assumes that the 2021 Hollyrood elections will take place.
2. The Hollyrood parliament will still exist in any meaningful form post Brexit.
3. And that the current SNP leadership has the courage, wit or imagination to pursue this strategy.
In your previous article you state the Brits “will do anything to preserve the Union. Absolutely anything!”. I completely agree. I’m afraid that includes declaring a nationwide state of emergency and “temporarily” suspending the devolved governments. Eventually abolishing them altogether.
The Tories have always been anti devolution. With a large majority at Westminster, likely civil unrest due to the effects of Covid-19 and a no deal Brexit on the 1st of January, all the pieces will be in place, giving them license to do it.
Given those circumstances, would there be a realistic political route to UDI? Would the 48 SNP MPs have enough political clout to pursue independence on these terms? I have my doubts.
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The answer to all your points is, of course! But so what? We have to plan to do what I propose regardless of what the British state MIGHT do. We have spent far to long already sitting around waiting to see what happens next.
The SNP adopting a Manifesto for Independence – and yes! they will have to be forced by mass demand – will be a game-changer. Which is why it must happen sooner rather than later. Preferably by the end of September. Certainly no later than mid-October. That gives time for it to impact the Brexit negotiations in some way. Quite what the impact will be, we cannot tell. But it certainly shifts the ground on which negotiations are taking place.
Doing it sooner also means that anything the British government does looks like a reaction to the SNP’s move. They won’t be able to credibly claim Brexit or Covid for a state of emergency. This won’t stop them, of course. It merely alters the context in which their actions in Scotland are viewed. We’re always being told this is important. So lets push it.
Our MPs can do nothing. One of the things that must happen as part of the #ScottishUDI process is that our MPs are recalled to sit in a National Convention or Grand Assembly in Scotland – along with all our other nationally elected representatives. Which is now just MSPs, of course. There no longer being any MEPs. This National Assembly will support the Scottish Parliament in its pursuit of #ScottishUDI such that there cannot possibly be any disputing this is being done democratically.
There is no route to independence other than the one we create. There is no off-the-shelf solution. To a large extent we have to make it up as we go along. Nothing wrong with that. It means circumstances can be addressed as they arise. Yes! there will be challenges from the British state. But if we’re not prepared to face and overcome these challenges can we really claim to be able to face the challenges that face independent nations on a daily basis?
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