There is no route to the restoration of Scotland’s independence through the legal and constitutional framework which has developed subject to the imperative to preserve the Union. The legal and constitutional framework necessarily protects the Union and thereby the dominance of England-as-Britain in a grotesquely asymmetric political union.
Legal advice cannot be relevant because lawyers cannot advise that the law be bypassed. But given the circumstances, remaining within the existing legal and constitutional framework would mean that the people of Scotland are denied our inalienable right of self-determination.
Fundamental democratic principles are an irresistible force. The law cannot be an immovable object if this obstructs fundamental democratic principles. Under these circumstances, it must be permissible for a properly constituted and appropriately mandated authority to step outside the existing legal and constitutional framework on the strict condition that it is stepping into the realm of democratic principles and essential democratic rights.
The law cannot legitimately be used to obstruct the democratic process or deny democratic human or civil rights as recognised by the United Nations
But few lawyers are likely to be willing to put this in official advice to government ministers. The law may on occasion be best respected by a considered, calculated and controlled breach of those parts of the law which would tend to bring the law into disrepute. If the defence of democracy demands defiance of the law, then defiance is the choice of democrats. Compliance is the choice of cowards.
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5 thoughts on “No way through”
Before the Boston Tea Party there was taxation without representation.
Before the Free State there was starvation and emigration.
Before Independence there was the East India Company / Raj and mass poverty.
Then the law was broken. British law.
Justice had intervened.
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“… Under these circumstances, it must be permissible for a properly constituted and appropriately mandated authority to step outside the existing legal and constitutional framework on the strict condition that it is stepping into the realm of democratic principles and essential democratic rights… ”
The existing legal and constitutional framework. Precisely, Peter. That framework is, in itself illegal and unconstitutional (ultra vires) according to the very tenets of the Union. This is what many of us are trying to get through to the Scots, both independistas and Unionists: the set-up is fundamentally flawed precisely because it is illegitimate. Those in the know at Westminster, know that perfectly well, or they would if they would do the groundwork and tack backwards to 1707. Any lawyer worth his or her salt would see that we have been conned for over 300 years – and not just us, because the English have also been conned in relation to their supposed subjugation and subsumption of Scotland. That is where it all begins and where we have to start to build a case for our independence. International law – or domestic law, for that matter – makes no demand for a pre independence referendum, which is why, even with a S30 Order one, it would never be honoured if if we voted YES. David Cameron proved that when he was willing, in 203/14 to challenge a YES vote with his Crawford and Boyle Report. He would not have won had it been taken to the UN, but he would have been able to wring many concessions out of Scotland in the meantime to not bring a case against us.
That is why, following, preferably, a plebiscitary election with all independence parties and interests agreeing that independence would be sought immediately after a win for the independence side. The SNP would not agree to that unless they are absolutely forced to do so, with the threat of either full-scale civil disobedience or a no confidence vote, or both. If that is achieved, the real constitutional wrangling and divvying up of the assets and liabilities would begin, and that is why the Treaty must be ‘sound’ in Scots Law and a case built upon its breaching and the illegitimate constitutional settlement, completely in England’s favour, that followed. Without a powerful case, England/England as the UK would not back down and would seek to drag out proceedings and wring concessions we cannot afford to make, out of us.
If Sturgeon goes for an advisory referendum after a S30 is refused, Westminster will do all in its power to resist its result, if they allow it to get that far because every sinew, every local authority that is not independence-minded, every institution, every business, every Unionist, etc. will be mobilized to prevent its implementation, and that’s before any result. If the SNP continues on its present course, it will destroy itself and us with it.
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“If that is achieved, the real constitutional wrangling and divvying up of the assets and liabilities would begin,”
The identity of Scottish representatives at that stage of the proceedings really worries me.
There are very capable Scots who would look out for Scotland’s best interests e.g. Salmond, Cherry, McAlpine etc – but if Independence triumphs in the 2023 SNP Indyref2, I doubt they would ever get within 500 miles of the negotiating table.
You know the ones who would! Watch the vid!
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That’s assuming the referendum actually led to negotiations. This is very unlikely. Unless Sturgeon goes back on pretty much everything she’s said on the subject it will be a Section 30 referendum that the British will make unwinnable, or it will be some sort of consultative/advisory exercise that is so meaningless and ineffectual that not even the British will want to try and stop it. In fact, they’ll encourage it. It won’t achieve anything and they’ll be able to say they ‘gave’ us the second referendum we wanted so now we can just STFU about it for the next forever.
That’s what we are looking at. But folk are fretting about the date of the referendum and who gets to sit at the negotiating table and whether there will be fucking Hobnobs and fuck knows what else EXCEPT the real and immediate issue.
Mind you, it hardly matters. The time to be taking an interest in what kind of referendum Sturgeon has in mind was two years ago – BEFORE the 2021 election. It’s not just the SNP leadership that’s pish-poor at strategic thinking.
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Reblogged this on Ramblings of a now 60+ Female.