With all due respect to Professor Michael Keating MA, PhD, FBA, FRSE, AcSS, Doctorat hons.,MAE., I’m no academic but I’ve been saying this for years. A referendum entirely made and managed in Scotland authorised by and under the auspices of the Scottish Parliament and satisfying all the internationally recognised standards for the expression of a nation’s right of self-determination could only be ‘illegal’ in the trivial sense of breaching local laws intended to constrain Scotland’s right of self-determination and prevent its expression in a free and fair manner.
Such a referendum must be constitutionally sound. Given the sovereignty of Scotland’s people and the unquestionable democratic legitimacy of the Scottish Parliament it could not be otherwise. Which is why the first act of any Scottish Government intending to restore Scotland’s independence must be to assert the primacy of the Scottish Parliament. Only when this is done can the Parliament authorise a referendum.
The British state will almost certainly challenge this through the courts. But if in asserting the primacy of Holyrood the Scottish Government is acting on a clear mandate from the people of Scotland, and if the asseveration of the Scottish Parliament’s competence in all constitutional matters is done in the appropriate manner then the British government will be put in the position of having to argue in court that the people of Scotland are NOT sovereign and that Westminster has greater democratic legitimacy in Scotland than Holyrood.
They would be obliged to maintain that Scotland is not a nation in order to maintain that Scotland does not have the right of self-determination. They would have to make the case that Scotland does not have the right to determine its own constitutional status because if they allow that Scotland does have the right of self-determination they would then have to argue that the British state has the authority to constrain that right. Which they cannot have if Scotland is a nation with the same inalienable right of self-determination as any other nation or people.
In all of this the British government would be arguing against relevant provisions of the UN Charter and various UN declarations and internationally accepted conventions. It is entirely possible that the prospect would be too daunting for them. Or at least for their legal advisers. It might be that the British political elite would decide at this point that their interests would be best served by offering negotiations.
This will only be a possibility if the Scottish Government acts decisively and with absolute determination. The slightest sign of weakness and the British will persist in their efforts to deny Scotland’s democratic rights. That level of determination requires the backing of a massive popular mandate – as well as political leaders with the courage to confront the British state without hesitating or flinching.
Two things must happen. Given that the only credible party of government in Scotland is the SNP, the party must immediately adopt the #ManifestoForIndependence (see below). Then the Yes movement must unite in an effort to secure for the post-election Scottish Government the most massive mandate possible. The goal should be a Scottish Government elected on the basis of a manifesto which includes a solemn undertaking to take specific actions within a defined timeframe and with a working majority as well as an overwhelming vote share on both ballots.
The first and most important of these undertaking is the asseveration of the Scottish Parliament’s primacy. This to be followed in timely manner by a proposal to dissolve the Union subject to the approval of the Scottish Parliament and the consent of the Scottish people as determined by means of a free and fair referendum. A referendum which would be both constitutionally sound and entirely in accordance with the only laws that matter – the laws of Scotland.
Only then can we truly say that we are in the process of restoring Scotland’s independence.