I was delighted to see an article in the Sunday National about Salvo and Sara Salyers. I have followed Salvo from its inception and worked with Sara Salyers and others on the Stirling Directive initiative. I know the former to be making a valuable contribution to the constitutional debate, and I appreciate just how intellectually acute Sara is. And how committed she is to Scotland’s cause. Where I part company with both is on the matter of pursuing legal action against the British state through a third party. On this, I reckon Salvo has things back to front.
By trying to take the British state to court, Salvo takes on the burden of proof. As Aileen McHarg points out, making the case that Scotland is effectively a colony if it is not part of a voluntary political union is likely to be fraught with difficulty. My view is that independence is normal and the Union is constitutionally anomalous. Therefore, it is the Union which needs to be justified.
The concept of popular sovereignty is something I take very seriously indeed. I regard the idea that the people are the ultimate source of all legitimate political authority as arguably the most fundamental principle of democracy. But it is pointless asserting the sovereignty of the people in principle if you do not act as sovereign people in practice. The people being sovereign, they have no prior need to seek permission or approval from any external power or body. It is not for us to seek affirmation of our sovereignty from any court, far less what is in this context if no other a foreign government. It is for us to act as a sovereign people in defiance of those who would deny our sovereignty or seek to obstruct or prohibit our exercise of that sovereignty.
Our sovereignty requires no proof. It is substantiated by behaving as sovereign people. The idea that we would need to “force the hand of the British state to grant another independence referendum” stands in direct contradiction to our sovereignty. If we are sovereign, we don’t need to be ‘given’ leave to act. If we are sovereign, we already have the authority to act. The ultimate authority. Why would we call that authority into question ourselves? To me, this makes no sense.
My position is that Scotland should do something which the Union supposedly prohibits us from doing and defy the British state to challenge this action. We should act as a sovereign nation would act and dare the British state to challenge our right to act in this way. We should put the burden of proof on the British state rather than taking it upon ourselves. Let the British state try and prove that we are not entitled to act as a sovereign people.
Sara Salyers talks of changing the ground on which the constitutional battle is fought. I agree wholeheartedy. But I don’t see the approach being adopted by Salvo as changing the ground at all. It takes as its starting point the subordinate status of Scotland and seeks to alter this status by way of some court judgement. To truly change the ground we must turn the entire constitutional issue around. We take the fact of our sovereignty as the starting point.
There is no route to the restoration of Scotland’s independence which does not pass through a point at which there is direct and almost inevitably acrimonious confrontation with the British state. As things stand, we have the ability to choose the ground. We can select the issue on which we act as sovereign people in defiance of the British state. The obvious candidate is the matter of our exercise of the right of self-determination that is acknowledged by the British state and guaranteed as a human right under international law.
By choosing to have the constitutional battle turn on the question of our right of self-determination, we make it a human rights issue. More to the point, done in the correct way, this will put the British state in the position of being obliged to defend and justify its determination to restrict or prevent the exercise of our right of self-determination.
The most effective way to drastically change the ground on which the constitutional struggle is conducted, is for the Scottish Parliament to assert its legislative competence in all constitutional matters primarily – but not exclusively! – for the purpose of facilitating the exercise by the people of Scotland of our right to determine our constitutional status and choose the form of government which best serves our needs, priorities and aspirations.
Having asserted legislative competence in matters relating to the constitution, the Scottish Parliament should then consider a proposal to dissolve the Union subject to ratification by the people of Scotland in a proper constitutional referendum. (see Stirling Directive Appendix II).
It would be for the British state to decide whether to mount a legal challenge to Scotland’s acting as a nation in which the people are sovereign. It can readily be argued that the British state might be very reluctant to take the matter to court, given that Scotland would be within its rights under international law even if it was held to be contravening local laws. We would be acting so as to be able to exercise the human right of self-determination, there being no other way this can happen. The British state would be put in the position of having to argue that we don’t have the rght of self-determination or that there is an existing way of exercising that right. Think about that for a moment.
Of course, it would be helpful if the Scottish Parliament had some form of mandate to assert a legislative competence that rightfully belongs with a democratically elected national parliament but which is being unlawfuly withheld by the British state. The coming Westminster election provides an ideal opportunity to seek such a mandate. By making the 2024 UK general election a de facto referendum on the question of the Scottish Parliament’s power to legislate for a proper constitutional referendum, that election will serve a purpose. Otherwise, it is totally irrelevant to Scotland.
I admire and respect Sara Salyers. I am convinced Salvo is doing valuable work. But it is not complex legal arguments that we need at this time, no matter how sound those arguments may be. What is required is bold, defiant action. It is not our legal case for restoring Scotland’s independence which has to be tested. It is the British state’s legal case for preventing the people of Scotland exercising our right of self-determination.
Peter A Bell 
A simple skeletal flowchart of the required process:
Assert sovereignty of the Scottish People
Conduct exercise of Scotland’s right of self-determination
Declare Independence and nation-state of Scotland
(Note: 3 is SOLELY dependent upon achieving a majority in favour of that outcome)
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I sketched a ‘flowchart’ in a recent blog. Can’t remember which one.
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Absolutely spot on and dare I say it, patently obvious.
Golfnut
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Inevitable. It’s just that people need to jump through the seemingly easier hoops before arriving at end game…..
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I agree almost 100%. I would omit the word “constitutional” from your phrase “competence in all constitutional matters “. This is not nit-picking, because we have no proper unchallengeable definition of what is a constitutional matter, and what is not. So the Scottish parliament needs to assert its competence in ALL matters, because that leaves no doubt as to the extent of the powers lent to it by the sovereign people of Scotland. It covers everything constitutional matters to fines for dropping litter, and leaves no doubt at the edges.
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It is necessary to specify constitutional matters as the proximate purpose is to legislate for a proper constitutional referendum. This is a plain language statement of intent. In practice, the wording would be drafted by lawyers and make reference to relevant provisions of the Scotland Act.
If you have legislative competence in matters relating to the constitution, you have power over everything. Because the constitution is what regulates all aspects of political authority.
Leaving out the word ‘constitutional’ would make it a unilateral declaration of independence. That is NOT the intention. The intention is to focus on the right of self-determination (exercise of) in order to make it a human rights issue. The intention is to dare the British state to ask a court to strike down the right of self-determination guaranteed by the United Nations. Not even the UK Supreme Court would be willing to do that.
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What Constitution ? The unwritten UK constitution that can be changed/fiddled/cancelled by the UK parliament ? If we are going to call for constitutional powers, then we need to define the constitution we refer to. We may need to write one and refer to it. I am in favour of this route, but it is as well to try to explore the likely strategy of those who will oppose it.
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There is no reference to a “Constitution”, written or otherwise. Only to constitutional matters. Sometimes it pays not to be too specific. Or, to put it another way, there is value in using language that is open and inclusive. The term “constitutional matters” can include whatever we want it to include. Why would we want to write it so as it might exclude anything?
The “likely strategy” of opponents is constrained by making it a human rights issue. How might they respond to what is effectively an allegation that they are denying or unjustifiably constraining the exercise of our human right of self-determination? There are basically two options. They can deny the charge. Or they can seek to refute the basis of the charge. If the former, they will be required to demonstrate that there are no constraints on the exercise of our right of self-determination. Or they will have to justify whatever constraints cannot be denied. They can hardly claim there are no constraints given the number of times they have said no to a referendum. Even the fact that we are required to ask is undeniably a constraint. Justifying any limitation of a fundamental human right is no easy task. It’s not easy to think of any reason the British state might give for limiting our right of self-determination which would satisfy a court bound to uphold the letter and spirit of the UN Charter.
The only way they could demonstrate absence of constraint would be to concede the very thing we are seeking. They would have to show that we were free to exercise our right of self-determination as and when and how we please. In short, if they prove that the allegation is unfounded, we win. If they fail to prove that the allegation is unfounded, we win. This is what is called a win/win situation.
Consider too, the arguments they would have to make in the full glare of the international media spotlight were they to deny the basis of the charge. For them to claim that the charge is unfounded they would either have to demonstrate an absence of constraints on our human right of self-determination – as described above – or they would need to argue that there is no right to be constrained. That we do not have a right of self-determination. How could they make that argument, given that international law stipulates that all nations and people have the right of self-determination? They would have to argue that Scotland is not a nation and/or that the people of Scotland are not a people within the terms of international law. Even if there was the slightest chance of them being able to persuade a court of this, these are things the British really don’t want to be saying in open court.
The likely and potential strategies of the British state have been very thoroughly considered. If #ScottishUDI is done correctly, they have very few options and none of the options they have is very attractive. There is, therefore, a strong possibility that they would seek a ‘negotiated settlement’ instead. This is where it could go very badly wrong. If the Scottish Government shows the slightest weakness or hesitancy, we’re fucked. They must be determined and tenacious and unyielding. Independence! Nothing less! Nothing else!
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Really good – but – “All Matters” is still more inclusive than “Constitutional matters” , why be imprecise when you can be absolutely precise ?
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Asked and answered.
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It must also cover our ownership of our own lands and undersea territories and who has the right to exploit the assets in them and to say who can or cannot own land in Scotland.
That would be a game changer if we had a government or representatives willing to put it into practice.
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A good example could be the illegality of the Rwanda Refugee Exporting Law under Scottish law. See Grousebeaterr WordPress article today and Joanna Cherry’s comments.
(Sorry can’t provide a link for some reason)
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It’s good to see Scotland’s distinctiveness being affirmed. It is this distinctiveness that British Nationalism finds offensive and seeks to eradicate.
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I wonder if anyone here thinks that the people of Scotland were involved in an act popular sovereignty when they voted to remain part of the British State? It is a serious question, because that action is what you are trying to overthrow.
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Democracy is a process, not an event.
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45% voted yes, the rest apart from the British at any cost deserve the opportunity to reprise their decision. A decision based on lies, misinformation and threats.
Golfnut
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