We frequently see it claimed that a Section 30 order is merely an agreement that Westminster will respect the result of the vote. We also see it asserted that there are viable options other than the Section 30 process. What I have termed ‘cunning plans’. The most commonly cited of these cunning plans are
- Dissolve the Union based on Claim of Right/Treaty of Union breaches
- Plebiscitory Election
- United Nations Decolonisation process
These are not options. Mainly due to one factor that proponents of ‘cunning plans’ invariably try to wish away – time!
- The Claim of Right has no force in law. In written evidence submitted to the House of Commons Political and Constitutional Reform Committee in October 2012, Professor James Mitchell observed that the Claim of Right embodied ‘a political rather than justiciable claim’ to the ‘sovereignty of the Scottish people’. (House of Commons Library)
Breaches of the Treaty of Union would have to be proved in court – probably one at a time. This could take decades. We don’t have that kind of time. McKerrell mentions Catalonia. He said:
They often compare Catalonia and the referendum there – where it was explicitly illegal, because the constitution says you can’t have a referendum on independence in Spain.
Legal expert explains the paths to a Scottish independence referendum
It is all but certain that the British are looking at the Spanish constitution with envy. There is nothing to stop the British state from imposing such a constitution on Scotland and the rest of England-as-Britain’s periphery. In fact, Boris Johnson is likely to fight the next UK general election on a platform which includes some kind of measure to ‘secure the integrity of the UK’. In other words, to finally complete the ‘Greater England’ project started several centuries ago.
- Plebiscitary elections are highly problematic and entirely unsuited to resolving major constitutional issues. Elections are never binary. The exercise of our right of self-determination must be binary in order to have a conclusive outcome – a decision and not just a result.
The requirements for a referendum which stands as a formal exercise of our right of self-determination are that it be binary; that the options are distinct, defined and deliverable, and that the action which ensues from a vote, either way, be specified. Most importantly of all, it must be impeccably democratic and conform to the criteria set out in, inter alia, UN Declaration 1514.
Ignore those who try to tell you the referendum must be ‘legal’ in terms of local laws. That is simply not true. If it was, the implications for human and civil rights would be horrendous. A government which has the power to deny something as fundamental to democracy as the right of self-determination could just as readily sweep away other defining aspects of democracy such as the universal franchise.
- Again, ruled out due to the time factor. For Scotland to use the United Nations Decolonisation process we would first have to be added to the UN’s list of non-self-governing territories (NSGT). That alone could take several years. And that’s before we even start the process of restoring independence.
There is, in fact, only one way Scotland’s independence can be restored and that is if we simply take it. A form of Scottish UDI. People have been manipulated by British propaganda so that they automatically recoil at the mention of a unilateral declaration of independence (UDI). This propaganda associates UDI with Rhodesia and all the negative ideas this implies. But Scotland is not Rhodesia. Also, Scotland is not Rhodesia. In addition to which, Scotland is not Rhodesia.
Think about it! What does UDI mean absent the irrelevant and insulting associations with Rhodesia and ‘white supremacy’? We have a fair idea of what is meant by independence. If independence is being restored there has to be a declaration – otherwise, how is anybody to know it’s happened? Duh! And ALL declarations of independence are unilateral. Who else has the authority to declare Scotland independent once more besides the people of Scotland? I say again, duh!
Power is never given. Power is only ever taken. Scotland’s independence will only be genuinely restored through a form of UDI specifically tailored to Scotland’s circumstances. That process begins with the Scottish Parliament asserting its primacy on the basis of the exclusive democratic legitimacy it derives from the mandate granted by means of a transparently democratic process by the sovereign people of Scotland.
This process was set out in the #ManifestoForIndependence published about two years ago. The hope was that the SNP and/or other pro-independence parties could be forced by the weight of a united Yes movement to adopt this manifesto for the 2021 election. Unfortunately, too many in the Yes movement thought they had better things to do than ensure the SNP Scottish Government acted to restore Scotland’s independence. But the process set out in the #ManifestoForIndependence remains valid.
- Repudiate the Section 30 process as an illegitimate constraint on Scotland’s right of self-determination
- Assert the primacy of the Scottish Parliament on the basis of its democratic legitimacy and the sovereignty of Sotland’s people
- Recall Scotland’s Members of Parliament from Westminster to sit on a National Convention with Members of the Scottish Parliament and such representatives of civic society as are deemed appropriate by the Scottish Parliament for the purpose of overseeing the drafting of a Constitution for Scotland
- Propose dissolution of the Union with England subject to approval by the Scottish Parliament and ratification by the people of Scotland in a referendum
- Hold a referendum on a proposal to dissolve the Union under the auspices of the Scottish Parliament and subject to oversight and management by the National Convention and such bodies as may be appointed by the Scottish Parliament
If you find these articles interesting please consider a small donation to help support this site and my other activities on behalf of Scotland’s cause.
Peter A Bell 
“… Plebiscitary elections are highly problematic and entirely unsuited to resolving major constitutional issues. Elections are never binary. The exercise of our right of self-determination must be binary in order to have a conclusive outcome – a decision and not just a result…. ”
Yet, this was precisely the means that pertained until 2014, the means that Thatcher herself endorsed. It goes to show how far removed from primary forms of democracy we have come – at least, as far as the Scots and Scottish independence are concerned. I was appalled at Debate Night last night with so many ‘plants’ in the audience, from immigrants from other parts of the world to English-accented naysayers to Scottish Unionists. We knew, of course, that this would happen. It is not who these people were that I was appalled at, but their undemocratic and, frankly, anti Scottish views, as if, we, uniquely in the world, must never have what others take for granted.
I agree with you, Peter, that most methods will take time, but the biggest obstacle is not what we should be doing, but the fact that even your proposal would make any move a PRE independence one. That will hole any attempt below the water line before we start, unless, in the coming GE, it is stated categorically in the Manifesto that a win in the election will herald a precise move towards independence from that point. Any referendum can then be a POST independence one, which is the norm. Only in the advanced (so-called) states do PRE independence referendums reign supreme – in order, of course, to allow maximum opposition before any decision is taken. Since there is no requirement in either domestic or international law for a PRE independence referendum, why hobble ourselves with having one? The people who object will have the opportunity to do so in a confirmatory/ratifying referendum which is more than they have ever allowed us – especially with Brexit. It is perfectly democratic and legitimate.
I also agree with your suggestion that we withdraw from Westminster and form civic conventions of citizens, not just the good and the great, inviting Unionists of all shades to participate or be forever damned by their intransigence – no second chances. Then, we use all the constitutional tools as back-up, however long it takes. We have to make it absolutely plain to the naysayers that: a) we are in deadly earnest; b) we are going to achieve independence with or without them; c) that we are not going to allow any more time to pass. Do you expect the SNP, the most collaborationist independence party in the history of independence movements, to do any of that, without wholesale removal of the leadership of both the SNP/SGP, and the ‘woke’ element attached to them?
LikeLiked by 2 people
There is a time issue with all the options. (I exclude the S30 as a viable alternative since it also has the crippling drawback of handing over our right of self-determination to a party government).
You have laid out the constraints on the Claim of Right/Treaty of Union, Plebiscitary election and UN Decolonisation approaches.
However, there is little doubt in my mind that, in the event of pursuing the Manifesto for Independence option, the British state would simply declare this a violation of the Scotland Act (1998) and move to suspend or close the Scottish Parliament. This, too, could result in putting the movement for restoring Scottish statehood into deep freeze for the foreseeable future.
In truth there is no silver bullet. All routes are fraught with risks of being obstructed, delayed and deferred.
We need to identify the plausible ones, and I think all 4 described above should be considered i.e. not S30, prioritise them in order of most to least likely to succeed in the shortest possible timescale and apply them one at a time.
LikeLike
If we are not prepared to face the kind of confrontation you described then we don’t deserve independence.
LikeLike
A plebiscite election could be a binary choice for the simple reason that any declaration of independence will require a general election to elect a new parliament so everybody is represented, regardless of whether they voted for or against independence.
There should be no continuation for political parties on a successful vote. There could be a transition / caretaker period but if we had any sense, all existing political parties should be dissolved on independence. The idea that the winners will take all is absurd and profoundly undemocratic.
LikeLike
Of course there would be an election following independence. Has anyone suggested there wouldn’t? I anticipate that the present electoral cycle would continue. Unless Independence Day clashed with an election. In which case, there might be grounds for delaying it.
But the first order of business after independence is not to vote on a new government but to vote on a constitution.
Whatever process you suggest, it either starts with the Scottish Parliament asserting its primacy or it doesn’t start at all. The Parliament needs to have the power to sanction an election or a referendum to ratify a constitution. The Scottish Parliament is crucial. It must have all the powers of a normal national parliament in order for independence to be restored. The only way it can get those powers is to take them, and then ask for the support of the people.
Power is never given. Power is only taken.
LikeLiked by 1 person
I’m with Professor Aileen McHarg who argued that UDI would entail a legal revolutionary act in the founding of an independent Scottish state . She has effectively ruled out all other routes to Indy , by a process of elimination IDI is the way to go.
LikeLiked by 1 person
That’s pretty much how I came to the same conclusion having previously rejected the idea of UDI. I looked at all the processes that were being suggested and realised that none of them could work without the Scottish Parliament first being established as the sole parliament of Scotland. And the only way that can come about is some form of UDI.
What matters is not that the process is legal in terms of local legislation but that it is impeccably democratic. There is nothing undemocratic about the Scottish Parliament asserting its primacy. If anything, it is powers being withheld from Holyrood that is undemocratic.
Of course, the British government would be expected to mount some kind of legal challenge. But they would be put in the position of having to argue that the Scottish Parliament has less democratic legitimacy than Westminster; that Scotland is not a nation; that the people of Scotland dod not have the right of self-determination; that the people of Scotland are not sovereign. Isuspect their lawyers will be telling them to find a way out.
LikeLike
Brian: UDI would work, but we would have to be pretty sure that a majority was in favour of independence, otherwise, the international community would not recognize our independence. That would not be fatal in itself, but it would make it very hard to function economically in the world, borrow or create trade deals. The constitutional tools say we have a right to independence that can be proven in international law, even if not immediately, so they must always come into play at some point, even if we choose UDI as an immediate step to independence. They would form the basis of a longer-term case in international law and also the reason why we had to declare UDI: because we were being prevented from achieving independence in any other way when we always had the absolute right to do so, both under international constitutional law and human rights legislation and anti colonial legislation. Again, would the SNP leadership and ‘woke’ contingent give this house room? I can see no immediate or longer-term solution that does not require the removal of the present leadership of the SNP and the independence-blocking ‘woke’ elements because I really do not believe that they are serious about independence at all, and when it all goes pear-shaped, they can point the finger at Westminster. They just haven’t calculated that it won’t wash this time. If they have any sense at all, they will understand that many are now at the end of their tether and want them out, so they had better get their digits out.
LikeLiked by 1 person
“a majority was in favour of independence, otherwise, the international community would not recognize our independence”
Besides securing the majority, international recognition requires a lot of diplomatic legwork.
Look at what Ireland did to ensure international recognition in the aftermath of WWI.
“In 1917 an Irish envoy was sent to Paris, and over the next three years, others were sent to the capitals of Europe, across the United States, to South America and beyond. Cooperation flourished with Indians, Egyptians and others who sought their independence. A treaty was even negotiated with the Bolsheviks in Russia.
Despite all these efforts, no country had recognised the Irish Republic by the time negotiations began for what would become the Anglo-Irish Treaty of December 1921”.https://www.dfa.ie/about-us/ourhistory/100years/1919-1929/1919/
No doubt meeting the international VIPs is easier today – over Zoom and in the UN building.Yet the need to set up a Scottish Ministry of Foreign Affairs seems very clear.
LikeLike
Ireland is a significantly different case for a number of reasons apart from the trivial observation that the world has moved on a bit since 1917. The most important of these differences is the violent conflict associated with Ireland’s efforts to escape Britannia’s jealous grip. But we must also remember that in the early 20th-century imperialism and colonialism were viewed rather differently.
Rather than ask how difficult it might be to gain international recognition try asking what reason any nation might have for denying it. We are conditioned to always come at such issues from a perspective in which Scotland is the one with the problem. Or with something to prove. We are conditioned to fret endlessly about the legality of anything Scotland might do but never to question the legality of what the British do. The hill is always Scotland’s to climb.
Instead of Scottish envoys travelling the world’s capitals trying to persuade foreign governments to recognise us, try imagine British ambassadors scrabbling to find anybody the can bribe, cajole or strongarm into refusing recognition.
Let us not forget also that Nicola Sturgeon and others have done excellent work establishing and maintaining amicable relations with other governments. It’s not all bad news. Not quite!
LikeLike
Kosovo is also a significantly different case . It was still under supervision by international forces at the time of it’s UDI. which has caused countries like Sweden to have considerable debate about formally recognising Kosovo. Scotland would face no such reservations .
LikeLiked by 1 person
Lorncal, I agree that the leadership and Praetorian Guard of careerists are a stumbling block to udi . The udi option should have figured at a much earlier stage but I suspect that the wheest brigade were determined to stymie any discussion of such horse frightening strategies.. All the more reason to let udi feature strongly in political discourse now . The present tactic of the SNP, which is to drip feed the notion of an Indy referendum , with or without a Section 30 order being agreed by Westminster looks like a very Jonny come lately effort to placate party activists who may be melting like the proverbial snaa aff a dyke.
LikeLiked by 3 people
UDI doesn’t just make you look like Zimbabwe – it makes you look like the Donbas Republic and Transnistria.
Note that the UN still doesn’t even recognise Kosovo as a state. It takes but one dissention.
That comes with manifold problems, like your passport not being recognised.
LikeLike
Totally agree Peter, we are a nation, not a region, wanting to return to our pre-union status, that should and surely is within our own powers to achieve.
LikeLiked by 1 person