Yesterday the Scottish Government published “Scotland’s Right to Choose“, its long heralded paper on the path to a new Independence referendum. It is a document riven by a basic intellectual flaw. It sets out in detail, and with helpful annexes, that Scotland is a historic nation with the absolute and inalienable right of self-determination, and that sovereignty lies not in the Westminster parliament but with the Scottish people.
It then contradicts all of this truth by affirming, at length, in detail, and entirely without reservation, that Scotland can only hold a legitimate Independence referendum if the Westminster Parliament devolves the power to do so under Section 30.
Both propositions cannot be true. Scotland cannot be a nation with the right of self-determination, and at the same time require the permission of somebody else to exercise that self-determination.
I was trying to find the right words to discuss the document. One possibility was “schizophrenic”. The first half appears to be written by somebody with a fundamental belief in Scottish Independence, and contains this passage:
The United Kingdom is best understood as a voluntary association of nations, in keeping with the principles of democracy and self‑determination.
For the place of Scotland in the United Kingdom to be based on the people of Scotland’s consent, Scotland must be able to choose whether and when it should make a decision about its future.
The decision whether the time is right for the people who live in Scotland again to make a choice about their constitutional future is for the Scottish Parliament, as the democratic voice of Scotland, to make.
Yet the rest of the paper completely negates this proposition and instead argues that the necessary powers must be granted by the Westminster Parliament:
The Scottish Government is committed to agreeing a process for giving effect to its mandate for a further independence referendum. When they make a decision about their future, the people of Scotland must do so in the knowledge that their decision will be heard and respected and given effect to: not just by the government in Scotland, but also by the UK Government, by the European Union and by the international community.
For a referendum to have this legitimacy, it must have the confidence of all of those that it would effect. This means not just the UK Government acknowledging and respecting the Scottish Government’s mandate, but the Scottish Government and UK Government seeking to agree the proper lawful basis for the referendum to take place.
We call on the UK Government to enter discussions about the Scottish Government’s mandate for giving the people of Scotland a choice, and to agree legislation with the Scottish Government that would put beyond doubt the Scottish Parliament’s right to legislate for a referendum on independence.
I am frequently told that this paper is all just a cunning ploy, and that when the Tory Government rejects – as it will reject – this servile request to grant Scotland the powers to hold a referendum, the Scottish Government will go to court to say it has the right to a referendum.
If that really is the cunning plan, it is the most stupid cunning plan since Baldrick and his turnip. In what way does publishing an official Scottish Government paper which states explicitly that a referendum “must have” the agreement of the UK government to be legitimate, prepare the ground to go to court and argue the precise opposite? Plainly that is not the intent here.
Nicola Sturgeon’s speech presenting the paper made the acceptance of a veto from “the rest of the UK” on the holding of a second referendum even more explicit:
It is based on the solemn right of the people of Scotland to decide their own future.
The Scottish Government believes that right should be exercised free from the threat of legal challenge.
In line with our values, we acknowledge that a referendum must be legal and that it must be accepted as legitimate, here in Scotland and the rest of the UK as well as in the EU and the wider international community.
We are therefore today calling for the UK Government to negotiate and agree the transfer of power that would put beyond doubt the Scottish Parliament’s right to legislate for a referendum on independence.
And what does Ms Sturgeon plan to do when Boris Johnson just says no, as he assuredly will? To be fair to Nicola, she could not have been clearer about what she intends to do. Absolutely nothing different.
Of course, I anticipate that in the short term we will simply hear a restatement of the UK government’s opposition.
But they should be under no illusion that this will be an end of the matter.
We will continue to pursue the democratic case for Scotland’s right to choose.
We will do so in a reasonable and considered manner.
So this is the Sturgeon plan: in the short term, we accept Johnson can block Independence. Beyond the short term (how many years is that?) we do nothing except continue in democratic politics as the SNP already is, operating at Holyrood and putting before Scottish voters “the democratic case for Scotland’s right to choose”, while accepting Westminster’s veto. This will have the pleasant side effect of keeping Ms Sturgeon living very nicely indeed in Bute House, with her husband picking up a massive salary as CEO of the Party, and the SNP just like the last five years doing nothing whatsoever about Independence other than occasionally blether about it, “pursuing the democratic case”, while very explicitly accepting Westminster’s veto.
The truth is there is no route to a referendum by legal challenge in the UK courts. The UK Supreme Court has already ruled that Westminster, the “Crown in Parliament” is sovereign, that the Sewell Convention has no legal force and that any powers that the Scottish parliament has, and indeed the very existence of the Scottish Parliament, is entirely at the gift of Westminster. The clue is on the tin. It is the UK Supreme Court. To be fair the Scottish Government paper plainly does not anticipate any such pointless legal challenge, though it is not inconceivable that one may be futilely undertaken at some stage to keep the SNP’s pro-Independence activists happy, by pretending to do something and kicking Indy yet a few months further down the road.
Because the truth is, that is the purpose of the current Scottish Government paper. The reason it is schizophrenic is that it is a deeply dishonest document. All the stuff at the beginning, about Scotland’s ancient right as a nation and the sovereignty residing in the Scottish people, is no more and no less than window dressing to keep Scottish Independence activists happy. The actual meat of the paper, that Indyref2 “must have” Westminster agreement or it is not legitimate, sits there like a great steaming turd whose stink cannot be disguised no matter how much the SNP leadership has tried to conceal it under flowers.
I have to say, I am astonished how many very decent people in the SNP have fallen for the trick.
The Scottish Government position is fundamentally incorrect. The Independence of a nation is a matter of international law, not of domestic legislation. The UN Charter enshrines the right of self-determination of peoples, and nobody has argued that the Scots are not a people in the encapsulated sense.
It is perfectly normal for States to become Independent without the permission of the state from which they are seceding. The UK Government itself argued precisely this position before the International Court of Justice over Kosovo. I here repeat a post I wrote almost exactly one year ago setting out the legal position:
BEGINS
The London Supreme Court last week not only confirmed that the Westminster Parliament could overrule at will any Scottish Government legislation, irrespective of the Scotland Act and the Sewell Convention, but it also ruled that Westminster had already successfully done so, by retrospectively passing provisions in the EU (Withdrawal) Act that overruled the Bill on the same subject, within the competence of the Scottish Parliament, that had already been passed by Holyrood.
Not content with that, the London Supreme Court confirmed that London ministers may, by secondary legislation, under the Scotland Act decree laws for Scotland that are not even passed through the Westminster parliament.
Which leaves Scotland in this extraordinary situation. English MPs or English ministers in their London Parliament can, at any time, impose any legislation they choose on Scotland, overriding Scotland’s parliament and Scotland’s representation in the London parliament. Yet, under the English Votes for English Laws rules of the London Parliament introduced by the Tories in 2015, Scottish MPs cannot vote at all on matters solely affecting England.
That is plainly a situation of colonial subservience.
I am firmly of the view that the Scottish government should now move to withdraw from the Treaty of Union. Scotland’s right to self determination is inalienable. It cannot be signed away forever or restricted by past decisions.
The Independence of a country is not a matter of domestic law it is a matter of international law. The right of the Scottish Parliament to declare Independence may not be restricted by UK domestic law or by purported limitations on the powers of the Scottish Parliament. The legal position is set out very clearly here:
5.5 Consistent with this general approach, international law has not treated the legality of
the act of secession under the internal law of the predecessor State as determining the effect
of that act on the international plane. In most cases of secession, of course, the predecessor
State‟s law will not have been complied with: that is true almost as a matter of definition.5.6 Nor is compliance with the law of the predecessor State a condition for the declaration
of independence to be recognised by third States, if other conditions for recognition are
fulfilled. The conditions do not include compliance with the internal legal requirements of
the predecessor State. Otherwise the international legality of a secession would be
predetermined by the very system of internal law called in question by the circumstances in
which the secession is occurring.5.7 For the same reason, the constitutional authority of the seceding entity to proclaim
independence within the predecessor State is not determinative as a matter of international
law. In most if not all cases, provincial or regional authorities will lack the constitutional
authority to secede. The act of secession is not thereby excluded. Moreover, representative
institutions may legitimately act, and seek to reflect the views of their constituents, beyond
the scope of already conferred power.
That is a commendably concise and accurate description of the legal position. Of major relevance, it is the legal opinion of the Government of the United Kingdom, as submitted to the International Court of Justice in the Kosovo case. The International Court of Justice endorsed this view, so it is both established law and the opinion of the British Government that the Scottish Government has the right to declare Independence without the agreement or permission of London and completely irrespective of the London Supreme Court.
I have continually explained on this site that the legality of a Declaration of Independence is in no sense determined by the law of the metropolitan state, but is purely a matter of recognition by other countries and thus acceptance into the United Nations. The UK Government set this out plainly in response to a question from a judge in the Kosovo case:
2. As the United Kingdom stated in oral argument, international law contains no
prohibition against declarations of independence as such. 1 Whether a declaration of
independence leads to the creation of a new State by separation or secession depends
not on the fact of the declaration but on subsequent developments, notably recognition
by other States. As a general matter, an act not prohibited by international law needs
no authorization. This position holds with respect to States. It holds also with respect
to acts of individuals or groups, for international law prohibits conduct of non-State
entities only exceptionally and where expressly indicated.
As I have stressed, the SNP should now be making a massive effort to prepare other countries, especially in the EU and in the developing world, to recognise Scotland when the moment comes. There is no task more important. There is a worrying lack of activity in this area. It may currently not be possible to spend government money on sending out envoys for this task, but if personal envoys were endorsed by the First Minister they would get access and could easily be crowd funded by the Independence Movement. I am one of a number of former senior British diplomats who would happily undertake this work without pay. We should be lobbying not just the EU but every country in Africa, Asia and South America.
My preferred route to Independence is this. The Scottish Parliament should immediately legislate for a new Independence referendum. The London Government will attempt to block it. The Scottish Parliament should then convene a National Assembly of all nationally elected Scottish representatives – MSPs, MPs and MEPs. That National Assembly should declare Independence, appeal to other countries for recognition, reach agreements with the rump UK and organise a confirmatory plebiscite. That is legal, democratic and consistent with normal international practice.
There will never be a better time than now for Scotland to become an Independent, normal, nation once again. It is no time for faint hearts or haverers; we must seize the moment.
ENDS
Events since I wrote that have made the case still stronger. With the UK now leaving the European Union, EU states will be extremely eager to recognise Scottish Independence and get Scotland and its resources back inside the EU, while sending out a strong message that leaving the EU can have severe consequences. At the UN, the UK’s repudiation of the International Court of Justice ruling and overwhelming General Assembly mandate over the Chagos Islands has made the UK even more of a pariah state, while senior statesmen in the developing world see Scottish Independence as a wedge issue to open the question of the UK’s ridiculous permanent membership of the UN Security Council.
The claim that to proceed to Independence without Westminster consent is illegal and illegitimate lies at the heart of this truly disgraceful Scottish Government paper. That claim is wrong at every level.
You cannot both believe that the Scots are a people with the right of self-determination, and believe that Westminster has a right to veto that self-determination.
This paper by the Scottish Government is nothing more and nothing less than proof that the gradualists who sadly head the SNP are perfectly happy operating within the devolution system and have no intention of ever paying any more than lip service to Independence.
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