I have spent the morning poring over Professor Sionaidh Douglas-Scott’s article titled Scottish Independence And The UK Government’s Unreasonable Refusal To Negotiate published by The Centre on Constitutional Change ─ a body which, I confess, I was previously unaware of. Or had forgotten about, as happens rather a lot these days. My attention was drawn to the article by a piece in The National as part of its coverage of the Lord Advocate’s referral to the UK Supreme Court (UKSC) of the Scottish Government’s draft Referendum Bill (UK Government ‘undermining law’ by ignoring SNP independence mandate). That headline seized my attention largely because it suggests questioning of the legality of the UK Government’s conduct in relation to the the ongoing constitutional issue. I have frequently made the point that, while there is much debate over the legality of what the Scottish Government does or proposes or might do in its efforts to resolve the constitutional conflict, we rarely (if ever) see any discussion of the legality of what the UK Government does or intends to do.
The matter of why the default assumption should be that the British way is the right way is a topic well worthy of investigation. Including the question of why this assumption is accepted even by many who insist on the justice of Scotland’s cause. It is far from uncommon to hear someone loudly proclaim that Scotland is a nation and the people of Scotland are sovereign and that we have an absolute and inalienable right to maintain and develop a distinctive national identity and political culture, only to follow this with some qualifier about obtaining the consent and cooperation of the UK Government. Indeed, if you wish to see an example of this then you need only read Professor Douglas-Scott’s article. She presents solid arguments for Scotland’s status as a nation, with all that this implies, yet always comes back to the assumption that this status is subject to the will of the British state. I find it hard to believe that Professor Douglas-Scott would argue in relation to any other nation or people that they were sovereign and possessed the right of self-determination but that they might only exercise this right with the consent of some other nation. And yet this is precisely what is being argued in Scotland’s case.
There is no reading of the UN Charter and relevant Declarations which suggests that the right of self-determination is other than absolute and inalienable. The notion of a qualified or conditional right of self-determination is as oxymoronic as the idea of limited sovereignty. The term ‘sovereign’ is an absolute. It cannot be reduced or constrained in any way without ceasing to be sovereignty. Another name would be needed. It cannot sensibly be called sovereignty if it is not absolute. The term ‘sovereign’ necessarily implies ultimate authority. It cannot be ultimate authority if it is answerable to any other authority. Because that would be to place the other authority above the ultimate authority. Which is a logical impossibility. Likewise with the concept of self-determination. The ‘self’ part of that term can only refer to the nation/people identified as sovereign. The instant ‘self’ becomes ‘self+’, the sovereignty disappears and with it the right of self-determination.
That this irresolvable contradiction should be an unchallenged component of discourse on the constitutional issue defies explanation. It’s like discussing an Escher drawing as if it was an architectural plan for an actual building. In order for the discussion to proceed, all who participate must tacitly agree to completely ignore the impossibility of stairs that descend to a higher level while simultaneously ascending to a lower level. If you are not prepared to accept the proposition that the people of Scotland are simultaneously sovereign and subject to the sovereignty of the British parliament, then you will be deemed to be the one who is talking nonsense. To participate in the mainstream discourse around Scotland’s constitutional issue you must get as comfortable as you can with the concept of qualified or conditional sovereignty. Even if you know that, like Escher’s stairs, the discussion is going nowhere. Or is it everywhere? Or both?
Everything Professor Douglas-Scott says in her article is doubtless perfectly sound ─ so long as we disregard the impossibility at its core. The impossibility of being simultaneously two mutually exclusive things. There is no grey area with sovereignty. There is no ‘middle ground’. There is no ‘third way’. It makes no sense to talk of total sovereignty because there can be no partial sovereignty. It’s all or nothing. What Professor Douglas-Scott says makes sense only as an abstraction. Try to relocate that abstraction in the real world and it just won’t fit. Nonetheless, the professor makes the attempt. She states her intention very succinctly.
The purpose of this exploratory blog is not to rerun the argument of this case, but to raise additional points against the UK Government’s conduct in refusing to negotiate with Scotland on independence.
Straight away we are faced with the great unasked question; the ghost question ─ If Scotland is a nation as other nations but for being in a voluntary political union; if the people of Scotland are sovereign and sovereignty is unbounded; if the right of self-determination is absolute and inalienable, then why should the UK’s refusal to negotiate be an impediment to the exercise of our right of self-determination and thereby a denial of the sovereignty of Scotland’s people and rejection of the idea that Scotland is a nation but for a political union which is not voluntary at all but more akin to annexation?
That unasked and unanswered question hang’s over all of Professor Douglas-Scott’s opinion just as it haunts all of the discourse around the constitutional issue. It stands as a kind of disclaimer which by rights should attach to everything said on the subject of Scotland restoring its independence. It is the unacknowledged ghost at the feast. I’ve acknowledged it. But even as I do I realise that I must let it return to being unacknowledged in order to continue with commentary on Professor Douglas-Scott’s article. None of what follows actually makes any sense unless we pretend that question isn’t extant and crucial.
Professor Douglas-Scott identifies five legal arguments which she maintains should influence the constitutional debate and the deliberations of the UKSC. She summarises these as follows.
The first ground is that the Union between Scotland and England is voluntary, and Scotland’s consent to this Union was not one-off back in 1707, but ongoing and may be withdrawn. A second and related argument concerns Scotland’s right to self-determination in international law, which requires the UK to interpret State law in the light of that obligation. The third ground is the principle of democracy which sustains the legitimacy of elected governments and necessitates that their mandates be taken seriously and not overridden. The fourth ground derives from manifold legal sources over many areas of law which permit a change of circumstances to negate consent formerly given. The fifth ground is the requirement to act in good faith, a principle again observed in many areas of law, both explicitly and impliedly.
Immediately, the ghost question looms before us. Given that Scotland is a nation, the people sovereign etc., why would we need legal grounds to exercise our right of self-determination and dissolve the Union, if the people so choose? The unadorned answer is that we don’t. We shouldn’t. We can’t, if we are not to deny all the things we hold to be true of Scotland’s status as a nation and the sovereignty of the people and the rest. In fact, we cannot accept that we need legal grounds to exercise our right of self-determination without undermining some of the most fundamental principles of democracy. Which is why we can only address Professor Douglas-Scott’s article as an abstraction from that reality in which the principles of democracy hold true. As we address these arguments we necessarily embark upon a game of ‘just suppose’. We must suppose these arguments are being proffered in a world where democracy as we know it doesn’t exist. Where democratic principles don’t apply. Let’s play!
But first we must deal with a quite separate but still dubious assertion. Professor Douglas-Scott says in a preamble on the matter of consent,
Of course, all that follows must be supported by evidence that the Scottish people wishes to exercise its right to self-determination and leave the Union.
Really? Let’s consider that. If Scotland is a nation and the people are sov…. (you know all this by now) then surely the democratically elected government has the authority ─ with parliamentary approval, of course ─ to hold any kind of referendum it wants. Let’s play another game of ‘just suppose’ nested Russian doll-fashion inside the bigger game. Let’s suppose there was no conclusive evidence that the people wanted a referendum on a given matter. Suppose the government chose to hold a referendum anyway. Suppose the government undertook to act in accordance with the outcome of that referendum. Would the government not be just as bound by the result of that referendum as it would have been had the referendum been held due to overwhelming public demand? Could a decisive result be set aside on the grounds that there had been no great demand for the referendum in the first place? What would democratic principle have to say on that?
The idea has been promulgated for long enough to become accepted without question that there must be evidence of a majority in favour of a constitutional referendum before it can even be contemplated. Things that are accepted without question are things that are begging to be questioned. Referendums are held to determine the people’s decision in matters where there is a binary choice. Should we as a nation do A or B? The matter to be decided need not be of great or current public concern for it to be important to the nation. It may require to be settled even if the public as a whole has little or no interest in the issue. It might be something which is crucial to another issue which is of great public interest. For example, there may be considerable demand for land reform. But the nature and extent of what is possible in terms of land reform may depend on the government having certain powers. This may seem arcane to most people and not such as makes for good headlines or rousing rhetoric. But it is necessary to settle the matter of these powers before the popular issue can be addressed. So, a referendum may be warranted regardless of the absence of public demand ─ or evidence thereof.
It might readily be argued that given its responsibility to develop policy for the years and decades ahead, the Scottish Government has to know now what Scotland’s constitutional status might be. If Scotland is in a voluntary political union with England then this union, being voluntary, presumably could be ended at any time. So it is necessary for the Scottish Government to determine just how committed to the Union the people are.
The formulation “evidence that the Scottish people wishes to exercise its right to self-determination and leave the Union” is a bit odd as it seems to assume that both demand the same kind of evidence. It appears to imply that in order to exercise our right of self-determination we must first have made the kind of formal choice that would be involved in dissolving the Union. Nobody can sensibly deny that dissolving the Union would require the consent of a majority of those voting in a referendum such as would be recognised as a formal exercise of our right of self-determination. It is passing strange to imply that the same standard of evidence would be required in order to justify exercising our right of self-determination.
The two things are quite separate. There is the exercise of our right of self-determination. There there is leaving the Union ─ which is one of the two possible outcomes of us exercising our right of self-determination. The right to make the choice is not the choice and not subject to the same evidential requirement as the choice.
Despite this, Professor Douglas-Scott seems to suppose we need legal grounds to justify exercising our right of self-determination. She appears to accept that we have the right of self-determination. We just can’t exercise that right without first jumping through a series of hoops. It seems to trouble her not at all that a requirement to jump through hoops precludes the right of self-determination. Or vice versa ─ the sovereign right of self-determination might be defined as being unburdened by any hoop-jumping requirement. That pesky ghost question just keeps on intruding.
And so to the legal grounds which Professor Douglas-Scott deems sufficient to allow us the exercise of a right no power has the rightful authority to stop us exercising. First, two rolled into one.
Democracy and Self-Determination
… although the Scottish people have an acknowledged right to self-determination, this can only be lawfully actualized through consensual negotiations with the UK Government. It therefore follows that such negotiation should not be unreasonably withheld. As the SNP brief in this case argued, where there exists a right, there must be a remedy: ubi jus ibi remedium.
You may never see the contradiction more starkly stated. The Scottish people have a right to self-determination. But a prerequisite for the exercise of that right is “consensual negotiations” with an external power ─ that is to say, a power which is not part of the ‘self’ in ‘self-determination’. A condition which clearly precludes there being a right to self-determination. The right of self-determination is conditional on one thing and one thing only ─ the will of the people who comprise the ‘self’ in ‘self-determination’. Introduce any other condition and it ceases to be the right of self-determination as defined by the UN Charter. The UN Charter does not say all nations and peoples have the right of self-determination so long as they get the OK from this or that other nation. The following is helpful.
Self-determination is the freedom to choose one’s own acts without external compulsion. The term is generally associated with the freedom of the people of a given territory to determine their own political status. It is the power of a nation to decide how it will be governed without the influence of any other country
The ratification of the United Nations Charter in 1945 at then end of World War II placed the right of self-determination into the framework of international law and diplomacy. The following are a few examples.
Chapter 1, Article 1, part 2 states that purpose of the UN Charter is: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”
Article 1 in both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) read: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”The Right of Self-Determination
Professor Douglas-Scott says,
By ignoring the mandate of a lawful government, the UK Government’s conduct in this context also undermines the rule of law.
What she does not say but bloody well should, is that the UK Government’s conduct in ignoring that mandate has to be entirely irrelevant. If the right of self-determination exists and democracy prevails then the attitude and behaviour of an external power must be of no consequence.
Change of Circumstances
These examples are proffered as illustrations that not only politics and morality, but also the law itself, is clearly receptive to arguments to dismantle agreements on the basis of a change of circumstances.
The Scottish Government is as much to blame as anyone for introducing the notion that a change of circumstances was relevant to the exercise of our right of self-determination. A concession which inevitably grew to become an insistence by some that the exercise of our right of self-determination could only be justified if it was demonstrated that there had been a sufficient change of circumstances. Need I say who is to be the arbiter of this sufficiency? The British state, of course! Because if the arguments advanced by Professor Douglas-Scott are accepted it is to the British state that we must look for the “consensual negotiations” without which the exercise of our right of self-determination cannot be “lawfully actualized”. So, the British state need only declare there to have been no sufficient change of circumstances to have an effective veto over the exercise of a right which is supposedly absolute and inalienable. No, I don’t get it either!
It matters not at all if politics, morality and the law itself are “clearly receptive to arguments to dismantle agreements on the basis of a change of circumstances”. If the British state is not receptive then the “acknowledged right to self-determination” counts for absolutely nothing. And the British state will never be receptive. Think about it! Not even Brexit could constitute a sufficient change of circumstances as far as the British state is concerned.
If the right of self-determination exists and if democracy prevails then changing circumstances cannot be a factor. And even if it were to be a consideration, the only legitimate arbiter of sufficiency is the people of Scotland. They pronounce on the sufficiency when they vote in a proper constitutional referendum. The constitutional referendum which in our world where we suppose democracy does not prevail and the right of self-determination is meaningless, cannot happen because an external power has declared there to be no sufficient change in circumstances. Is your head starting to hurt?
For those who might argue there is no explicit obligation of good faith between England and Scotland, it is worth noting that recent English and Scottish caselaw has found a good faith obligation implied in “relational contracts.” Although analysis of ‘relational contracts’ has arisen in the context of commercial entities, ‘relational’ attributes apply equally, mutatis mutandis, to relations between England and Scotland.
Surely Professor Sionaidh Douglas-Scott is making a joke. Please tell me her straight-faced use of the term “good faith” in relation to the British ruling elites is an attempt to lighten the mood a little. Please tell me this is no more than her trying to abide by the old adage that advises performers to ‘always leave them laughing’. Perhaps it’s better that I say no more about this one. I will note only that if democracy is dependent on the good faith of the British state then democracy is fucked in ways hitherto unimagined.
The ghost question
In closing, what more or better might I do than once again pose the question which still abides.
If Scotland is a nation as other nations but for being in a voluntary political union; if the people of Scotland are sovereign and sovereignty is unbounded; if the right of self-determination is absolute and inalienable, then why should the UK’s refusal to negotiate be an impediment to the exercise of our right of self-determination and thereby a denial of the sovereignty of Scotland’s people and rejection of the idea that Scotland is a nation but for a political union which is not voluntary at all but more akin to annexation?
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18 thoughts on “The ghost question”
“… There is no reading of the UN Charter and relevant Declarations which suggests that the right of self-determination is other than absolute and inalienable… ”
The UN is referring to colonialism, Peter, where no agreement between coloniser and colonised exists. It may now be a situation of colonisation from our point of view, but that Treaty stands in the way.
“… There is no grey area with sovereignty… ” No, indeed, there is not, except that we ceded at least some of ours to the British Parliament via the Treaty agreement, and we require to take it back.
“… then surely the democratically elected government has the authority ─ with parliamentary approval, of course ─ to hold any kind of referendum it wants…”
The problem with that, Peter is that we agreed to devolution, just as we agreed to Union. I was not really in favour of that either, and would have preferred that we went straight to independence. We didn’t, so devolution has been seen since as a stepping-stone to independence, on the one hand, and the end of the line, on the other. We have backed ourselves into a constitutional corner. Devolved government is still retained government, and Westminster is still sovereign and Holyrood is still its creature. These are world-wide political and international law rules.
“… Perhaps it’s better that I say no more about this one. I will note only that if democracy is dependent on the good faith of the British state then democracy is fucked in ways hitherto unimagined… ”
Good faith is essential in all agreements between individuals, groups, countries and nations, and between them and their populations. We know that the Westminster cohort are bad faith actors across a range of different spheres, as the Chagos Islanders could tell us. They are in hock to the Americans on that one, and would they be in hock with us, too, considering we host their nuclear weapons? The British Government exercises good faith only when and where its interests are not threatened or its standing in the international community is not undermined. The retention of Scotland is very much in their interests, which is why, instead of a very reluctant extension to devolution, in the post Brexit UK, we are heading for direct rule as a means to close us down.
Your final paragraph highlights the real fault line in relations between Scotland an England. From the Treaty (and the CoR within the Treaty), legally, we have to suppose that the commissioners, jurists and politically ratifying signatories (political representatives) all intended that the Union should be one of an equal partnership. That is legal custom unless stipulated otherwise. Nowhere in the Treaty or the Acts does it specify that the agreement is not a mutually beneficial one, i.e. that one nation will benefit more than the other, or that one will benefit where the other does not.
No less a personage than Queen Anne herself, in her speeches to the new British Parliament, and so on, certainly talks of the Union as one of equality, acknowledging moreover that she is head of state of each nation separately, albeit the Union of the Crowns took place (supposedly) in 1603. What actually happened was that both crowns were vested in the same person separately, which means that we retain nationhood and our own crown. It seems to me very clear that what has happened since 1707 has been one, long, consistent and political, economic and social breach of the Articles of Union by England. In any contractual agreement, which this is, but on a national scale, that would nullify the agreement immediately – and the British government and the ruling elites (which are not necessarily the same thing) know that full well.
It must, however, be nullified (resiled) in international law because, as an international agreement, that is the law which deals with internal agreements, and that will require a case to be laid before the UN and international court. If we do not do this, we will be fleeced and shafted by England as the UK in any negotiations after independence. We must have a strong hand. That is why we must, simultaneously, lay our case before the UN and the international court, and make strides politically here at home to bring about a UDI based on years of SNP government, umpteen mandates, etc., or a combination of the SNP’s and all the other independence parties’ results put together after an election. No political party can be prevented from exercising its right to implement its core policy. That is our political system and any deviation sets a precedent which could play out to the disadvantage of any party in power. Incidentally, we do not require to have the UN/international court case, adjudicated on first, albeit we should ask to have it expedited. The question is, Peter, will the SNP put country before party? Ever?
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It’s late, Lorna. So, I haven’t read your full comment. I will do at some point tomorrow. Unlike some bloggers, I read all comments ─ other than those from known arse-aches ─ and try to respond wherever this is appropriate. I had to pick up on the following comment.
“No, indeed, there is not, except that we ceded at least some of ours to the British Parliament via the Treaty agreement, and we require to take it back.”
Sovereignty is not divisible. Sovereignty may be pooled with other nations. But to cede it in part is to cede it entirely. In fact, pooled sovereignty may suffice as a definition of democracy. It is what makes democracy work. We are all sovereign individuals. But we live in large, complex communities which both require and provide a huge range of services. We can’t, as individuals, do everything for ourselves. So, usually by means of a democratic process such as an election, we pool our sovereignty with others in order that the reserve of legitimate political authority thus created can be drawn on for the purpose of making the whole thing work.
Think about the idea of ceding sovereignty. Which bit do you cede? How is it defined? How do you control the way that sovereignty used after you’ve ceded it? How do you ensure that what is ceded remains only what you intended to cede?
When you cede part of your sovereignty, what is left? Can this residue even be considered sovereignty?
The term necessarily completeness. How can sovereignty be ultimate if it is not complete?
The Union is/was supposed to be an exercise in pooling of sovereignty. It wasn’t and isn’t, of course. It was/is one nation negating the sovereignty of another by political machination having failed to do so by force of arms. For what is conquest if not the negating of another nation’s sovereignty in order to impose your own?
The Union could have worked. In principle, a sovereignty-pooling arrangement between the two nation was perfectly feasible. But people didn’t think in such terms 300+ years ago. They thought in terms of conquest and subjugation ─ from either perspective. So, what was created with the Union was a form of conquest or subjugation. I have likened it to territorial annexation. This is testified to by the number of British military garrisons established in the years after the Union was imposed on Scotland.
Those claiming to represent Scotland’s interests in the process of imposing the Union truly were traitors. What they sold for English gold was not merely a wee slice of our sovereignty. What they sold was the entire nation ─ in perpetuity, if some are to be believed.
“… But to cede it in part is to cede it entirely… ”
Good point, Peter. Perhaps I should have used ‘pooled’ because the British parliament required only half of our sovereignty and half of England’s sovereignty. When you pool something, you do not, generally pool everything, but only enough to achieve what you have each set out to achieve. If you both pool everything then you have more than a whole; a whole requires two halves or four quarters. No country in the UN pools all its sovereignty.
I have never seen the Treaty as being anything other than an agreement between two nations to co-exist peacefully and with mutual benefit for the simple reason that that is what the Articles state from a legal viewpoint. Some years ago, I carried out a wee experiment, with the help of the writing of eminent Scottish jurists, and approached the Treaty from the political and the legal ends, only to meet in the middle with the same reasoned result: the Treaty was intended to be an equal partnership, and even the ratifying Acts spell out the same.
Taking the CoR, contained within the Treaty, all of the writings and speeches at the time (1706/1707), I have no doubt in my mind that the Union was intended to be equally beneficial to both nations. That it hasn’t been can be laid solely at the door of England and England as the UK. Of that there can be no doubt either: the facts are eminently provable; the outcomes stark for Scotland, also provable; and the misappropriation of our resources with so little benefit to Scots so blatant as to have become arrogance on stilts, edging ever closer to coloniser mentality.
I absolutely agree that the Union could have worked well for both nations – as intended – but you are right about the attitude of England as the UK. The strange thing is that Queen Anne saw it as a union of equals, as her speeches and writings around the Treaty appear to show, the jurists and commissioners also appear to have regarded it as such. The Equivalence would also suggest a ‘you scratch my back and I’ll scratch yours’, at least initially. The Scottish parliamentarians, a fair few of them, at least, knew England too well, and it was the English MPs and Whitehall that made the first moves towards bringing Scotland under the heel of Westminster. That is why a proper interpretation of the Treaty is essential in international law if we are to avoid being fleeced in any negotiations following independence.
Some of the finest legal minds in constitutional law have come out on the side of its having been intended to be a joint and equal enterprise, since hi-jacked by England as the UK. We would be extremely remiss if we don’t get this sorted out at international level at the same time as we try to sort things out at the political level.
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Is there some reason that wordpress conflates longer posts to meaninglessness? What could that be?
Reblogged this on Ramblings of a now 60+ Female.
“yet always comes back to the assumption that this status is subject to the will of the British state. ”
No she doesn’t. Not at all. There’s this:
“ Good faith is clearly a feature of UK Constitutional Law. and also applies in international law ”
which is about the unwritten body of UK Constitutional Law including precedents NOT the UK State which are two totally different entities.
And first of all, before that, there’s this:
“First, should the Court dismiss the Lord Advocate’s reference, that does not end matters. Scottish independence is far broader than the issue of competence to hold a referendum under the 1998 Scotland Act.”
Generally speaking she at least partly endorses the SNP’s intervention, which the UKSC is duty bound to consider. And in general terms she is most defintely saying that any negative decision of the UKSC is absolutely NOT the end of the story, including the under siege by the undemocratic Tories, UK Rule of law.
It’s a very good article, and one which should not be lightly dismissed.
(yes, wordpress has its vagaries)
Excellent article Peter ; likewise Lorna’s comment on it .
The professor, like many unionist elites, remains confused between a sovereign people/nation on the one hand and a sub-state (federal, devolved etc.) on the other. She incorrectly assumes Scotland to be the latter, ignoring the fact of the UK treaty-based alliance as between two sovereign nations/peoples. Had to laugh at the ‘good faith’ bit too, Peter. Scots know we are a disrespected sovereign people in possession of a violated treaty and that perfidious albion never operates in good faith, hence its corrupt interpretation of the Treaty of Union. That is all we need to know in this situation.
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You said: “She incorrectly assumes Scotland to be the latter, ignoring the fact of the UK treaty-based alliance as between two sovereign nations/peoples.”
Actually she didn’t. As it says in her article:
“The devolved settlement is barely 25 years old but Scotland and England have been joined since 1707 in a voluntary parliamentary union concluded between two sovereign States. Importantly, this relationship, and the consent of both parties to it, is ongoing, not all done and dusted three centuries ago, and, since 1707, Scotland has maintained its own separate legal system, Church, education system and cultural heritage. “
Yes, but as Peter says you are either sovereign or you are not. You cannot be sovereign and at the same time be a sub-state of some other sovereign entity, or dependent on the latter’s permission in order to become sovereign.
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The point isn’t Peter’s opinion, or your opinion, or even Douglas-Scott’s actual opinion.
The point is that you are both totally misrepresenting what she said, and expressing an opinion on the basis of that misrepresentation.
Irony so heavy you can feel the weight of it tilting the planet.
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Aye Peter, some folks are all too easily led up the garden path, or a blind alley, by what appears to be authoritative discourse. One suspects yesindyref2 is aligned to the SNP elite, thay ken aw aboot gairden pads an blin closes.
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The two of you got it wrong and don’t have the integrity and courage to admit it.
“….since 1707, Scotland has maintained its own separate legal system, Church, education system and cultural heritage”
In the colonial environment, of course, all such institutions and more tend to be run by co-operative native elites working in the colonizer’s interest and who also adopt his culture – symbols, values, beliefs – his laws, his language and athings besides. This is the Manichaeism nature of colonialism. You (and the professor) might need to read up on ‘cultural assimilation’, also known as ‘colonial assimilation’, and its effects on an oppressed people, all of which is within the well-established domain of postcolonial theory. Understanding of our oppression cannot be explained solely by legal opinion.
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Oh, and crucially she says this:
“The Articles of Union between England and Scotland were originally negotiated by international treaty. Article 62 Vienna Convention on treaties (and customary international law) provides that, where ‘The effect of the change is radically to transform the extent of obligations still to be performed under the treaty’ then a fundamental change may be invoked as a ground for terminating or withdrawing from the treaty.“
Great take-down – that’s Professor Sionaidh Douglas-Scott well and truly slam-dunked.
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“It is far from uncommon to hear someone loudly proclaim that Scotland is a nation and the people of Scotland are sovereign and that we have an absolute and inalienable right to maintain and develop a distinctive national identity and political culture, only to follow this with some qualifier about obtaining the consent and cooperation of the UK Government.”
100% this. This is what I come across on a daily basis especially from indy supporters. The same when they say x,y,z is reserved as though it is reserved to the English government under English law. As a sovereign state and party to the treaty those matters are reserved to the Scottish government which sits in the parliament of GB as per the terms of the treaty and not the Scottish government’s devolved administration which would require consent from its own government to act outwith its remit. The problem as you highlight above is that folk do not question the narrative. They place the English government in a position of sole authority of the state of GB without challenge and undermine their own sovereignty in the process. You cannot be both sovereign (have ultimate authority) and subject to the whims and desires of another party. Either you have ultimate authority, or you don’t. Now, the Scottish government have asked this question of the English government and its establishment numerous times and repeatedly been told that yes, the Scots are sovereign. In fact, even the monarch of both Scotland and England upheld Scots sovereignty recently. Who then is to blame for Scotland not asserting its sovereign authority when ultimate authority lies entirely with the Scots? We see policies being made that are detrimental to Scotland by the English government such as immigration and foreign affairs but is it fair to say that a country possessing ultimate authority has to abide by any policy set elsewhere especially within GB? No. There is only Scots and English law. All legislation must be signed off on if it is to have effect, but all legislation can be abolished by the Government of the state it applies to – in particular Scottish government can abolish all legislation that pertains to Scotland including the Scotland Act of Union and numerous Scotland Acts pertaining to the devolved administration. Surely, with lawyers at the beck and call of the Scottish government they must be aware of this so why don’t they? Here, Peter hits the nail on the head. Scotland’s government and representatives do not treat Scotland as a sovereign entity. They treat the English government instead as the sovereign body of both England and the treaty. The Scottish government are not held to account by the Scots who likewise do the same. Unchallenging and accepting of a false narrative that portrays and supports the supreme authority of their mere treaty partner. When you realise just how ludicrous and untenable that position is you then have to question the motives of those in positions to authority who are or at the very least should be fully aware of what it means to be sovereign. As much as I detest the English government and its establishment, they in truth are not the problem. They can attempt to frustrate the law, but they are subject to it the same as every other state. The real problem is the Scots who refuse to acknowledge that Scotland IS sovereign, that supreme authority rests with the Scots not just on a matter of self-determination but on all matters pertaining to Scotland. And no-one can supercede that authority.
One problem that must be addressed is that the treaty of union was not political when it was drawn up. It was a trade Agreement coming on the back of an economic war with England and its allies and was ratified due to the Alien Act which would have affected many influential Scots at the time. If you look at the European parliament when it was first created and compare it to that of the parliament of Great Britain, the EU parliament had more authority. Both were the creation of a trade Agreement, And, just as England unilaterally and illegally changed the fundamental nature of the treaty to suit itself by proclaiming it political, so too has the European parliament. There is no such thing as UK law. You cannot study it. In order to practice law in Scotland and England – the only 2 signatory parties to the treaty – you have to pass the bar in Scots and English law. Likewise, there is no government of Great Britain anywhere in the treaty itself. It is merely assumed that because there is a parliament that it must follow that there is a government. But that was not the case. Throughout the treaty Scotland and England are distinct legal entities who are to share the same parliament and bring any trade laws into alignment with one another. There is no constitution, legal system, capital, national language, border, religion, nation, PM of Great Britain, parliamentary sovereignty (which is an entirely English concept) or indeed institutions of Great Britain bar a shared treasury with equal representation, because it was never a political union. When one of the only 2 signatories to the treaty disagrees then it is not an imaginary government of Great Britain that objects, it is the treaty partner. If Scotland objects, then England is the opposition. If England objects, then Scotland is the opposition. Those are the only 2 parties to have ratified and enacted the treaty. Both parties are sovereign nation states and maintain their sovereignty even within the international Agreement.
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