A significant development?

~ Peter A Bell

When I stopped publishing articles here about three weeks ago, I had it in mind that I would recommence if and when there were any significant development relating to the constitutional issue. I did not say as much at the time for the simple reason that I did not anticipate any significant developments. But here I am. Which implies that something important has happened. Or at least, something potentially important. There are things which are self-evidently important – such as the resignation of the First Minister. Then there are things which are interesting but which only become significant depending on how they are responded to. The legal opinion obtained by Neale Hanvey MP is an example of the latter.

Professor Robert McCorquodale’s Opinion On Matters Relating To International Legal Issues Concerning The Right To Self-Determination For The People Of Scotland undoubtedly makes for an intriguing contribution to the debate. The full text runs to 33 pages and, of course, it is always advisable to read it all. But an adequate summary of the main points can be found on the Alba Party website – International Legal Opinion Indicts Supreme Court on Scottish Self-Determination. I’m not sure it’s quite the game-changer Alba Party is unsurprisingly declaring it to be. It may be best to wait and see whether the game is changed before deciding. Whether and how the game may be changed will depend on the way the debate on the constitutional issue is influenced by this legal opinion. I’m already seeing some very tribal responses that don’t help a bit. But I suppose that was to be expected.

In fact, Professor McCorquodale doesn’t tell us anything we didn’t know already. What his opinion does is lend weight – serious weight – to criticisms of the UK Supreme Court’s ruling in November 2022 on the Scottish Government’s Draft Referendum Bill referred by the Lord Advocate. This helps answer the question of where we go from here following a ruling which many saw as ending the matter of a new independence referendum. It also provides clarity on a number of important points; such as that for all relevant purposes of international law, Scotland is a nation and the people of Scotland are a ‘people’ as legally defined and that therefore there is no doubt that the right of self-determination applies. The people of Scotland have the right of self-determination. All that is subject to debate is the manner in which this right is exercised. It is entirely a question of process. Those who insist we should not be talking about process are either fools, or they have an agenda.

In his conclusions, Professor McCorquodale identifies two possible international legal routes available to Scotland. The first involves seeking an Advisory Opinion from the International Court of Justice. The second is a unilateral declaration of independence.

  • Seeking an Advisory Opinion from the ICJ. This requires a majority vote by States in the UN General Assembly to refer a legal question to the ICJ, and for the ICJ to determine the matter. It also requires a State to take this forward on behalf of the people of Scotland, which may prove difficult.
  • Make a unilateral declaration of independence. This requires a clear majority of people representing Scotland to indicate their approval but it should not be done by the Scottish Parliament, as the latter is within UK domestic law. This could be done, for example, through a convention of elected and diverse representatives from across Scotland with a clear majority in favour. This approach relies for its effectiveness on the recognition by States of the Statehood of Scotland.

I would discount the first option. I do so without intending any offence to Salvo, Liberation, Scottish Sovereignty Research Group or any of the other organisations investigating ways of progressing Scotland’s cause using international law. The work done by these organisations is of great value in informing the debate about how we exercise our right of self-determination. Three things cause me to doubt that the ICJ route will work. The first is that it is so dependent on external agencies. This relates to my second misgiving; time! We must assume that whatever means is identified by which the people of Scotland might be enabled to exercise our right of self-determination, the British state will move immediately to nullify this threat to their precious Union. We must never underestimate their capacities in this regard. The British state, by virtue of the Union, has all but unlimited power to block any route that may be identified. We must expect that they will do so. And quickly. So, a posited route which has a timeframe stretching to years is hardly likely to be useful.

My third and final doubt about the ICJ route is that it doesn’t actually have independence at end of it. This, to me, is an essential defining factor of a viable route to ending the Union and restoring Scotland’s independence. The route must go all the way to that goal, or it doesn’t qualify as a route to independence. The ICJ route stops at the delivery of an Advisory Opinion. Even if that opinion is favourable – and we must factor in the risk of an adverse outcome – it is merely a tool to aid us in overcoming the obstacles and hindrances the British state devises to prevent the people of Scotland exercising our right of self-determination. We have no way of knowing what that Advisory Opinion might contain. For all we know, it might state that a Section 30 order is required. At the very least, it may well allow some role for the UK in determining how we exercise our right of self-determination and, for all we know, a role in managing the process. We would then be back where we started, but with fewer options.

An ICJ Advisory Opinion does not make Scotland independent. A unilateral declaration of independence does. It makes independence a fait accompli. The question then changes from one of how we get our independence to one of how we stop the British state taking it from us. That is a total reframing of the issue.

One of the notable things about the constitutional debate is the way UDI has become normalised. We now have distinguished law professors discussing it as a serious option. There will, of course, still be those who respond to the term ‘UDI’ in the way they have been conditioned to respond by decades of British propaganda. Some of them might not even be swayed by the opinions of eminent figures, so effectively have their minds been colonised. Hopefully, most of them will come around when they see a practical plan for a form of UDI devised specific for Scotland – #ScottishUDI. It is that plan which is my main concern.

For some time now (4 years?) I have been arguing that Scotland’s independence can only be restored by going the unilateral declaration of independence route. There is no choice. There need be no argument on this point. It has to be #ScottishUDI by a simple process of elimination. When you discount all the things that cannot work, what is left is what must be made to work. The only other alternative being to abandon the project altogether. I trust we’re not about to do that! The Section 30 route is discounted partly because the British political elite has effectively declared it non-existent. But it has to be discounted anyway as it doesn’t satisfy that fundamental criterion to qualify as a route to independence. That is to say, it does not lead to independence. It can’t. A Section 30 referendum could not qualify as a formal exercise by the people of Scotland of our right of self-determination. For a start, it cannot be other than advisory. It would not end the matter. It would simply leave us back at the position of requiring the consent and cooperation of the British state. Which we are never going to get! In this respect, a Section 30 referendum is much like the ICJ Advisory Opinion. The British state’s response in either case would be to insist that they were respecting the outcome whilst treating it with complete contempt.

There is only #ScottishUDI. It would be good if we just dropped discussion of ‘alternative routes’ and focused on getting #ScottishUDI right.

Another interesting, and potentially significant intervention came from another esteemed legal personage – Roddy Dunlop KC – in the form of a Twitter comment giving his reaction to Professor McCorquodale’s opinion.

I have summarised Roddy Dunlop’s observations below.

  1. the opinion does not say UKSC was wrong as a matter of domestic law.
  2. even if it did, that would be irrelevant, as a decision of UKSC is final and binding unless reconsidered by UKSC itself with a higher number of judges. That seems unlikely.
  3. it recognises that secession is difficult but not impossible. I think the Prof is right to envisage the ICJ route as likely to be difficult.
  4. (and phew..) it places no reliance on the CoR…
  5. the main proposed solution is “through a convention of elected and diverse representatives from across Scotland with a clear majority in favour”. What is unclear is as to how such a convention could be set up. If pro-union parties declined to be involved, which seems likely then the convention would not be representative of all the people of Scotland. Moreover, how an election to such a convention might lawfully take place is not explained, and is (to me at least) unclear.
  6. Nevertheless, this is a very interesting contribution to the discussion of Scotland’s future.

I suggest we disregard 1 and 2 at least for now as we are discussing international and not domestic law. 3 seems to support my view that the ICJ route is not a viable option. I’m a bit perplexed by 4 as it seems strangely dismissive of the Claim of Right (CoR). While I agree that the CoR is not the key constitutional element some suppose it to be, I take it to have an important role in defining Scotland’s distinctive constitutional ethos. The one that has been supplanted by the imposed Union.

What Roddy Dunlop is referring to at 5 is the matter of democratic legitimacy, or parliamentary competence. It is something that Professor McCorquodale also concerns himself with. As when he states that UDI “requires a clear majority of people representing Scotland to indicate their approval but it should not be done by the Scottish Parliament, as the latter is within UK domestic law”. Hence, the suggestion of an alternative body, a “convention of elected and diverse representatives from across Scotland”. Which, as Roddy Dunlop KC says, merely replicates the problem of democratic legitimacy (lack of) and parliamentary competence (absence of).

To both these learned gentlemen I pose a question, why not the Scottish Parliament? Surely an essential part of the process of restoring Scotland’s independence must be the transformation of the Scottish Parliament from being an executive branch of the UK government to being the government of independent Scotland. Therefore, it cannot be assumed that this is an impossibility. So why not effect this transformation – wholly or partially – as part of the process of restoring independence. It goes without saying that the government of independent Scotland will have full competence in all areas. Any unilateral declaration of independence may be regarded as the parliament of the seceding nation asserting universal competence. This is a big deal. This is complicated. This makes people fret.

But what if the Scottish Parliament were to assert its competence in only one area? Suppose the Scottish Parliament were to assert its competence only in the area of constitutional matters. Consider if it justified doing so because this is the only way the people of Scotland might be enabled to exercise their right of self-determination; the British state having blocked whatever other routes there may have been.

This resolves the issue of democratic legitimacy. What body could have greater democratic legitimacy than the Parliament elected by the people of Scotland using a form of proportional representation? The Scottish Parliament represents the entire nation. It includes representatives of those opposed to restoring Scotland’s independence. There is no way the British parties can ‘boycott’ the process. They can only abstain.

Suppose that the unquestionable democratic legitimacy of the Scottish Parliament were to be augmented by a specific mandate to assert competence in constitutional matters. Suppose the next UK general election were to be made a de facto referendum on this question of Holyrood’s powers. We would then have a body fit to pursue the unilateral declaration of independence route. The only route.

Concerns regarding recognition by other states would be allayed as no state could possibly oppose a people exercising their right of self-determination in the only way possible.

Concerns about legal challenge by the British government would be allayed as the only arguments the British government might advance would backfire on them. They couldn’t argue that the justification for this de facto UDI was not legitimate because that would involve them claiming that there was an existing way the people of Scotland could exercise their right of self-determination. They would then be obliged to explain what this was. The Section 30 route is easily discounted as I have already pointed out. Which would leave the British government with no option but to effectively concede the kind of referendum we want.

Other than that, what could they argue in open court. Scotland is not a nation? The people of Scotland do not have the right of self determination? The people of Scotland are not sovereign? All the things that they desperately don’t want to say aloud as to do so reveals Scotland’s status as annexed territory and so opens up that UN/ICJ route again.

The problem here is that #ScottishUDI as I have outlined it, has never been properly discussed. If the idea is flawed, the flaws have yet to be identified. Hopefully, none of those flaws would be fatal. Another problem is that no politicians or parties are even looking at this option. If distinguished legal figures like Professor McCorquodale and Roddy Dunlop KC are prepared to talk about UDI as a potential route to independence, what is stopping the politicians, other than cowardice.

The Yes movement was very successful in normalising the subject of independence during the campaign for the 2014 referendum. More recently, the idea of a plebiscitary election has entered the mainstream of political discourse. Now, it’s time to do the same for #ScottishUDI.

Published by Peter A Bell

Thinker. Listener. Talker. Reader. Writer. No attitude immutable. No conclusion final. No opinion humble. Lifelong campaigner for the restoration of Scotland's independence.

25 thoughts on “A significant development?”

  3. So pleased that you are back! I have missed your intellectual ascerbic wit.

    To see you being right in what you have said in the past without being smug about it is praiseworthy.

    Definitely a significant development. How the SNP deal with it will be indicative of how serious they are about independence. Will it be discussed this Saturday at their convention?

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  4. I echo the sentiments of those who say to you, “welcome back.“

    I am only halfway through Professor McCorquodale’s intriguing, opinion and will reserve comment on its contents.

    However, it is to be wholeheartedly welcomed.

    Will anyone say that at the upcoming SNP conference?

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    1. There are moments when I think it possible that some SNP members will try to shake things up. Whether they will manage to do so is another matter. The SNP bosses have become rather good at excluding voices they don’t want heard.

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  5. Humza Yousaf has already said “To be frank, there is no rabbit to be pulled out of a hat, of course there is no ruse that I can cook up, it is the preferred option of the SNP to have that democratic legally binding S30 referendum.”

    Of course, Yousaf would have difficulty pulling his thumb out of his backside. The SMP have the charade ‘Independence Convention’ coming up this weekend in the Caird Hall, Dundee which, from the published agenda, will simply be to cheer lead for the S30 Fools Gold Standard.

    However, it will be hard now for anyone (including Yousaf) to deem the principle of the UDI route illegitimate, providing the necessary popular support can be demonstrated. Your version – Scottish UDI – does this as it allows for a specific, unambiguous ratification of any proposal from a convention of political and civic leaders.

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  6. ‘ Make a unilateral declaration of independence. This requires a clear majority of people representing Scotland to indicate their approval but it should not be done by the Scottish Parliament, as the latter is within UK domestic law. This could be done, for example, through a convention of elected and diverse representatives from across Scotland with a clear majority in favour. ‘

    It has been obvious to me for a very long time that one, we should stop asking permission (an admission of subservience) and two, the the Scottish Parliament is a creature of Westminster and cannot act without permission. The people who can act without permission are our UK MPs – they are our representatives in the Union. Strictly speaking they need only meet and take a vote on either renegotiating or Resiling from the Union. But, self-evidently, they would be unwise to do so without the backing of the people.

    A referendum would be subject to interference and the usual threats and lies. All that is necessary would be consistent results in opinion polls.

    I am as much to blame as anybody else that this has not happened. I have been singularly unsuccessful in my minor attempts to persuade people I thought might be interested (including Peter Bell).

    Below is the text of a leaflet I produced. I handed out 500 copies at the Scottish Parliament at the rally last year in response to the ‘ Supreme Court ‘ s decision. I got two replies. Still, I tried.

    Anyone who feels like taking up the SCOSiA banner should feel free, you don’t need every body agree, just those who think it makes sense. Others are very welcome to proceed along their chosen path.

    Don’t go fighting with other groups. If you want to discuss their approach, do it in private, not online. If you can’t agree, leave it at that – you will have made your point.

    Time to stop asking for permission.

    Time to assert ourselves.

    Scotland is an independent country and has never been otherwise. We don’t need
    anybody else’s permission to change how we control our affairs. We can resile from the Treaty of Union any time we wish. To do that our MPs (our representatives in the union) need only take a vote on the matter – before, after or even without a referendum. We should stop talking about independence, and instead talk about Scottish control as opposed to UK control.

    A movement is an entirely different organisation from a political party, and has the great advantage that it need only have a single objective and not get bogged down in endless policies, each of which can be attacked by the opposition. The role of the movement should be to increase the support in opinion polls so that our MPs know they have the people at their back.

    To increase the number in support of Scotland returning to a position of complete control over our own affairs, we first have to identify those who oppose this idea. Then we need to find out what they want to talk about – no point in battering them with our thoughts if they don’t want to hear. Suggestions – the NHS, food standards and what can be forced on us if we allow others to make our decisions.

    People who voted NO in 2014 thought they were voting for things to stay the same. What nobody said to them was that, if we voted against controlling our own affairs, we were effectively voting to have our affairs controlled by people elsewhere, and that we shouldn’t be too surprised if they control our affairs to their advantage.

    In the UK Parliament there are 650 MPs, of those 533 represent constituencies in England and 59 represent constituencies in Scotland. No great arithmetical skill is required to work out which group can have their own way any time they like and, more to the point, can force their decisions on the other any time they like. There are plenty of examples of them doing just that.

    Sovereignty of the people is undeniable, and we have proved it*. Politicians do what they are told – it just takes enough of us to let them know what that is. We don’t have the numbers in Scotland to sway the UK Government – but it’s only our MPs we have to convince/give courage to.

    SCOSiA. Scottish Control Over Scottish Affairs – ‘i’ for independent. Pronounced Scotia.

    Assertiveness – the quality of being self-assured and confident without being aggressive.

    Ditched – The Poll Tax, Scottish water privatisation.

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  7. I me myself said after 2014, UDI , I even said before that , it was no use engaging with the English state.
    As they do not respect other people’s and or nations, with their perfidious ways.
    This can be seen in legislation involving other nations and people, with a specific word inserted or left out, a comma or full stop left out.
    So important in foreign affairs.
    Back to UDI, although I have only had one idea of UDI, from the past when it is up against the English state.
    Of course times have changed, but the English state hasn’t, it rolls on.
    Hence no English constitution, they can do anything they like with out restraints.
    Ignoring the English state , and doing our own thing is the best way, keeping them out of international events, is the way forwards, starve them of oxygen .
    Salvo.scot and liberation.scot are valuable assets for educating the majority and for enlightening the international community.
    After all, the English have kept the Scots out of conversations by the faux UK brand.
    Way to go.
    🐼🐼🏴󠁧󠁢󠁳󠁣󠁴󠁿🏴󠁧󠁢󠁳󠁣󠁴󠁿

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  8. Welcome back, it is hard to escape. Anyways, I posted similar to this elsewhere, so rephrasing it a bit.

    As any representation at the ICJ or General Assembly of the UN needs to be done by a friendly state, Scotland having no standing, the thing seems to be to actually do something, get the process started. Get talking with other states, pointing out carefully how the UK state seeks to interfere with such talks. It will take courage, which the Scottish Government seem to almost totally lack.

    Meanwhile this should become and should be deliberately made, extremely embarrassing for the UK state who normally would seek to stop the humiliation, and all that takes is to actually allow the accepted means of self-determination – a referendum. International humiliation means loss of status, loss of respect, loss of financial markets and even of trade.

    As for Dunlop the interesting thing is not what he says as clearly always an advocate for the other side, but that he takes the thing seriously and makes argument against many parts of it – which allows there are countering arguments FOR those points.

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    1. Alarm bells sounded at the phrase “allow the accepted means of self-determination – a referendum”. This sounds very much like a Section 30 referendum. A Section 30 referendum CANNOT lead to independence.

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      1. Well, as you know I disagree with you.

        However, the SNP might be a very narrow church in which a nave is someone who dares to have their own opinion like Fergus Ewing and therefore should be expelled from the party, but luckily for the rest of us we can indeed hold a very broad church of opinions, and can’t be kicked out because we’re not in.

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        1. It’s not a matter of opinion. It is an incontrovertible fact. A Section 30 referendum CANNOT lead to independence being restored. I could catalogue once again all the reasons why this must be so. But what would be the point? What you have is not so much opinion as belief. I suspect you may still be clinging to this belief when even the SNP leadership has been cured of it.

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          1. There’s nothing magical or voodoo about a Section 30 Order. It’s a way of varying reserved powers.

            In theory the UK Government, House of Lords and agreed by the Scottish parliament, could make a Section 30 Order that the Scottish Government have control over RAF Lossiemouth for a period of 1 year.

            The ScotGov could then send in the bulldozers and ploughs and turn it into a giant self-picking strawberry patch.

            Once the deed is done there’s no going back, The only recourse of UK Gov would be to rebuild Lossiemouth and reinstate it as UK QRA North.

            Once Independence is achieved the only non-voluntary way back is invasion. So the means of it occurring are irrelevant after the fact.

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              1. “Learn a wee bit about Section 30.”

                I know plenty about Section 30, thanks, but I don’t have blinkers on. Here’s something for you to read, as the other side see it:

                https://commonslibrary.parliament.uk/research-briefings/cbp-8738/

                and our side:

                https://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/431/Christine-Bell-The-Legal-Status-of-the-Edinburgh-Agreement.aspx

                (2012 – “Christine Bell is Professor of Constitutional Law at the University of Edinburgh” – knows a bit more than thee and me).

                “and which pretty much everybody outside SNP/Alba abandoned some time ago”

                No, they didn’t. Not in the real world “out there”. Everybody else doesn’t care how Independence is achieved, just as long as it is. That’s reality.

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              2. “Learn a wee bit about Section 30.”

                I know plenty about Section 30, thanks, but I don’t have blinkers on. Here’s something for you to read, as the other side see it:

                https://commonslibrary.parliament.uk/research-briefings/cbp-8738/

                “and which pretty much everybody outside SNP/Alba abandoned some time ago”

                No, they didn’t. Not in the real world “out there”. Everybody else doesn’t care how Independence is achieved, just as long as it is. That’s reality.

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  9. As a secondary thing by the way, if you get an opinion from a KC, it’s a good idea to get your solicitor to interpret it, as they can say what is behind some statements, and what to do about it. There’s only so far a KC or equivalent, can go.

    It may seem like a bit of a game, well, perhaps it is in some ways.

    Check

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  10. athey are paid All tax data on scots where they live and how much they pay is held by HMRC. All VAT and duties are reported to HMRC. Accessing this data to set up a scottish collection system is required. companies such as Tesco would have to split their VAT reporting with scottish VAT going to SG. All these details are held by HMRC.

    Pensions and benefits names where they live and how much they are paid is held by DWP.

    The SG would need to set up a treasury and have arranged borrowings to cover payments of pension benefits and government staff. There is a lot that needs to be discussed on accessing the data and setting up funding

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    1. Nothing that hasn’t been done before. Mostly without the general public even being aware. One of the great fallacies nurtured by the British Nationalists is that everybody has to know everything about the transition process for that process to be credible. It’s nonsense, of course. But they’ve had a great deal of help from the Yes movement in promulgating this nonsense. Not only must every question be answered, it must be answered in a way that satisfies everyone. And the answers have to be known by everyone.

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  11. One little problem of course, is that there is in hard cold globally enforceable fact, no such thing as international law. There are just a few things that are generally recognised, but not by every state, and even the ones that do generally accept those rules can choose to ignore any findings by any arbitrary court such as the ICJ.

    When a State has laws, it has courts and some sort of police to enforce those laws – within its boundaries. Outside those boundaries it relies on treaties such as extradition, to reduce the possibility of anyone escaping “justice”.

    To have international laws you would have to have a World Government, a World Court, and a World Police Force. There is no such thing.

    Ultimately all there is is – politics.

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