Thoughts On The Route To Independence

This is a space dedicated to debate about the reasons for and strategies towards independence. Here’s a contribution on behalf of the Lanarkshire Forum for Independence.

Back in September 2023, the Lanarkshire Forum for Independence, a non-party grassroots group formed before the 2014 referendum to campaign solely for Scottish Independence and active ever since, prepared a short paper setting out as clearly and succinctly as possible some thoughts on the route to independence, which they circulated to all indy parliamentarians at Holyrood and Westminster, and to other indy groups, in the run-up to the SNP conference that October, warning that the SNP was about to take a gravely wrong step. The response was virtually zero, at no more than two replies. The fears in the LFI paper began to come true when the conference made its decision to back the then leader (Humza Yousaf) in declining to give the people of Scotland an effective vote on independence at the forthcoming general election, even after a straw poll by a conference speaker had shown about three quarter of delegates indicating that they “truly believe that Scotland can be an independent nation state without the consent of the UK Government”, and with some MPs privately saying they were not confident that Yousaf’s strategy would help save their seats. As it transpired, the election lost the SNP 39 of their 48 seats, leaving them with a mere 9. Here is that paper, slightly updated. The irrationality that besets the cause remains.

Introduction

The Supreme Court holds that, under the Scotland Act which established Holyrood and sets out the limits to its legislative remit, the Scottish Parliament lacks the power to legislate for an independence referendum, since that “relates” to “the Union of the Kingdoms of Scotland and England” and to “the Parliament of the United Kingdom”, which are matters reserved to Westminster. The granting of that power to Holyrood under Section 30 of the act being at the whim of London, where both Tory and Labour (and Reform, for that matter) are adamant that they will not grant it, the SNP’s obsessive contemplation of a referendum is no better than idle nonsense. The one and only effective way for the people of Scotland to express their democratic will on whether their country should resume its ancient independent status is by means of a general election which has been made into a plebiscite by the appropriate manifesto, which must state explicitly the question being put, and what will result from a majority of positive votes. Without those elements it will not be a proper plebiscite and risks being disregarded by London, by the rest of the world, and by the very people of Scotland itself. They can be put briefly, and provided they are set out, the actual wording is not crucial, but the simpler the better. Here is an example of what would be sufficient:

A vote for the Scottish National Party will be taken to be a vote for Scotland to become an independent country, and on a majority of such votes that is what will happen, within 3 years of the election, whether on terms negotiated with the UK Government or not.

There is no power to prevent the SNP from issuing such a manifesto. If they do so, and if they win a majority of Scottish votes on it and proceed on that basis, how will London respond? The view usually emerges from independence supporters inside and outside of the SNP that London will prohibit Scotland from leaving the Union, but that view is without foundation. There is no doubt that London does not want Scotland to leave, is not going to cooperate before the vote, and will fight tooth and nail for a No vote. But once Scotland has democratically opted for independence by a direct majority of votes in the formal context of a general election, London would simply be unable to state a case for preventing it, and here is why.

Scotland a country

Scotland is a country, more recognised and more identifiable than many. No sensible person denies this. It has a long history as such, and is seen as a country by virtually the whole world. What it is not is a sovereign state, since its people made the democratic choice in 2014 to remain in the Union. It was party to the Union, within which it therefore has a different status from regions of England. The crucial point at which that status is not acknowledged is in seats and votes at Westminster, where all seats are equivalent, and where Scotland amounts to less than 9% of all seats, or to 10.5% of English seats, and so as a matter of simple arithmetic, can do nothing that England does not want, and cannot prevent anything that England does want, even if the SNP was to hold every single Scottish seat. In that regard, Scotland is neither a country nor even a region, but merely a small minority, to be overlooked whenever it suits. The Scottish Parliament itself is a subsidiary body, created by Westminster in a Scotland Act which clearly preserves Westminster’s right to completely override it. (For example, section 28(7) provides that the legislative power of Holyrood “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”, and section 35 sets out where the UK’s Scottish Secretary can stymie a Holyrood bill, and “may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent”). So long as Scotland stays in the Union, that is the position, and it can be ended only by Scotland resuming its independence.

The right to leave

The constitution of a state is normally a document, or collection of documents, which sets out its structure and basic laws, and which has a supervening position over ordinary law, being changeable only by special measures (as for example in the USA and Spain). The UK is eccentric in having no such constitution. UK constitutional law and practice, such as it is, has no supervening status, since it can be altered by normal legislation, or even by government action without legislation. UK law contains no prohibition on Scottish independence. So for example, the Edinburgh Agreement of 2012 bound the UK to respect a Yes vote if such was to occur in 2014, by signature of the Prime Minister. (Likewise, the Northern Ireland Act 1998, an ordinary act of the UK parliament, provides for the province to leave the UK for the Republic if it wishes.) The UK has no legal power to prevent Scotland from leaving. Nor has it ever claimed any such power. Whenever London has spoken on the matter (which is very rarely; London does not want the actual flimsiness of the Union to be generally known or discussed, and prefers to keep it taboo), it has affirmed that the UK is a union of consent, and that Scotland can leave if its consent to the Union is withdrawn.

Supreme Court

Pessimists within the independence movement maintain that the 2022 Supreme Court decision on a Holyrood referendum holds that Scotland has no right to leave under its own hand, but that interpretation of the decision is false. There was only one issue before the court, namely whether Holyrood had legal power to set up an independence referendum. The court decided that it did not, since a referendum “relates” to “the Union of the Kingdoms” and to “the Parliament of the United Kingdom”, topics reserved to Westminster by the act which set Holyrood up. But the court went on to give perfunctory consideration to an additional paper in wider terms (“submissions on the right to self-determination”) which had been lodged by the SNP. Even before the court in its decision came to deal with those submissions, it had already stated “we reject the Lord Advocate’s submissions that the proposed Bill does not relate to reserved matters”, so the self-determination question played no part in that decision.  The court’s discussion of self-determination was incidental (‘obiter’ in the legal jargon) to the referendum case, and did not feed into its referendum decision.

In their brief discussion of self-determination, the judges referred to the case of Quebec, which the Supreme Court of Canada had held to have no right to secede unilaterally. It equated Scotland with Quebec, and drew what it saw as the same conclusion as the Canadian court, namely that Scotland had no unilateral right of self-determination under the UN Charter. But the analogy was mistaken. Scotland and Quebec are far from equivalent. Quebec, like all Canadian provinces, can hold a referendum on any topic at all. If Quebec left, it would split Canada in two, from the north coast to the US border. If Quebec voted to leave, both it and Canada would be obliged to enter good-faith negotiations to agree its departure. If agreement could not be reached, that would be not a legal impasse, but a political one, with no supervisory role for the court. Procedures have now been enacted by Canada (the Clarity Act of 2000) in line with their court’s pronouncements. In light of such differences, to which it made no reference whatsoever, the UK Supreme Court simply had no business equating the two, and thereby assuming that Scotland shared Quebec’s lack of a UN right of self-determination. But its animadversions, being entirely incidental to the referendum case, are neither here nor there anyway, and the dismal conclusion of the pessimists is unfounded. But of course, the plain fact is that Scotland’s right to leave the Union is not actually founded on the United Nations Charter at all, which it antecedes. It simply arises from the fact of the Union, and is not prohibited.

Magic

Some supporters of independence, hoodwinked by the SNP’s endless refrain that it is London we must prevail against (rather than our home-bred Scottish naysayers), in their exasperation, suggest that we look to the “international courts” to save us. In fact there are only two courts in the picture, and neither is of any assistance. One is the European Court of Human Rights. It can receive applications from individuals, but has no enforcement powers, and prior remedies must have been exhausted. But it adjudicates only on the European Convention on Human Rights, which does not include self-determination. The other is the International Court of Justice, a UN body, but it deliberates only between existing states, and acceptance of its jurisdiction is voluntary. For the cause of Scottish independence, the tooth-fairy would be a better proposition.

Likewise, well-meant initiatives to empower Holyrood by resorting to existing international covenants on human rights, or by declaring extra power for it after running a popular vote, can go nowhere, even if support for them grew to more than paltry, because with Scotland in the Union Holyrood remains manacled by the Westminster statute which set it up, and can take no legislative step towards independence. So long as such legislative impediments persist, you cannot burst through them. However, the non-existence of such remedies does not matter, because there is no need for them.

London

If Scotland votes for independence by a direct majority in a plebiscitary general election, which is the only means available since the UK refuses to grant Holyrood special permission to hold a referendum, London will have no legal power to prevent it, and no case for doing so. London’s “now-is-not-the-time” response to referendum requests (which itself does not wash, more than a decade after the 2014 vote) has no application to the use of a general election. On the question of Scottish independence (as distinct from a right of Holyrood to hold a referendum, which is properly regarded strictly as a devolution issue) London already accepts the material facts of the matter, namely that Scotland is a country, and a party to the Union in its own right, that the decision on whether Scotland should leave is for Scotland alone, that Scotland’s departure requires no special dispensation from London, and that London has no rightful or legal power to prevent it. All of those are illustrated by London having made the Edinburgh agreement and having facilitated the 2014 referendum. That would not have been consistent with London rejecting any of those facts, and maintaining that it did hold the power to bind Scotland to the Union against its will. In the face of such considerations, obstruction by London would amount to blatant duplicity and oppression, and would violate all its stated respect for democracy and consent. However treacherous we might regard the UK government at times, that is not a position London will put itself into, so inanely abhorrent would it be.

England

Within the UK system, the basic absurdity of the notion that London can prevent Scottish independence is revealed by a simple test question: can England go independent? The answer is obviously yes. But why so? If it is only because of England’s vast preponderance of voting power in the UK parliament, and for no other reason, and it is just a pity for Scotland that it is so small, the Union would be exposed as irretrievably unequal and a prison for Scotland, unable to leave, but liable to be ejected by England at will. If we set aside that mad scenario, we must conclude that what England as a nation can do with the Union, so can Scotland. The Union must treat both parties the same.

Simplicity of leaving

London does not want Scotland to leave, and so does not want it to be given the choice, which is why it is not cooperating in the choice being made available. It is preventing a referendum, but it cannot prevent a general election, and cannot prevent a plebiscite manifesto (often loosely referred to as a ‘de facto’ referendum). Unlike Canada, London would have no obligation to enter into negotiations after a Yes vote. The deciding factor for London would be whether it thought Scotland would proceed to independence entirely at its own hand anyway. If Scotland was resolved to do so, London would certainly cooperate, because that would be in its own best interest. So there must be a clear view of how Scotland would leave the Union without London on board, if only to hold London’s feet to the fire.

In that regard, the way is plain. Under the Westminster first-past-the-post system, the majority of actual Scottish votes to produce any Yes victory, whether slim or massive, would place an independence-supporting MP in almost every Scottish seat. In those circumstances, the straightforward and constitutionally unassailable method would be for Scotland’s MPs, who are the country’s supreme representatives (and the modern counterparts of the body which took Scotland into the Union in the first place), by majority at a time of their choice to declare Scotland’s independence, vacate Westminster and reconstitute their whole body as the national parliament of a sovereign and independent Scotland, initially simply taking over the place of Westminster vis-à-vis Scotland. They would then be in a position to enact whatever further measures were necessary (as, for example, by amalgamating with the devolved Scottish Parliament), and the procedure of setting up the necessary new departments of national government could take place (following on from whatever preparatory steps had been carried out since the Yes vote). Scottish oaths of office in the UK would be deemed to be oaths in Scotland, and existing laws affecting Scotland would be deemed to carry over to the Scottish context, with necessary changes implied. In this way, the actual step of leaving the Union would be as smooth and seamless as possible, and the real business could get on, of a Scottish Government running an independent Scotland under the sovereign people of Scotland. But such a programme need only be in existence as an insurance policy, because it is virtually certain that if it was transparent that such was to be the course, the actual transition to independence would be negotiated by Edinburgh and London and would come about on an agreed basis.

No alternative

There is only one route: a true plebiscite election, and there is only one entity which can make that happen: the SNP. (Though it goes without saying that agreement should be reached with other independence parties to avoid splitting the Westminster vote. All parties which stand for independence should put that goal before their own party interest.) At the moment, the SNP leadership, and numerous prominent members and elected representatives who have made public statements, declare that London’s permission for a referendum is still the (utterly unrealistic) goal, betraying the frailty of their belief in Scotland’s own right to choose its path. The inelegant resolution proposed by Yousaf and Flynn and adopted at the 2023 conference was fantasy. A bare manifesto call to “Vote SNP for Scotland to become an independent country” did not make the election a plebiscite, nothing could have been gained from their goal of “the most seats” (which the actual result turned into a sick joke), and it was hobbled by reliance on London’s cooperation. Astoundingly, the SNP is the only serious political source for the fallacious and subservient notion that Scotland cannot go independent without London’s say-so, and over the years since the 2014 referendum the party has brainwashed a large proportion of the independence movement with it. It is a thoroughly false and pernicious doctrine. The SNP went into the general election without an absolutely explicit independence manifesto – stating both proposal and consequence – in terms however brief. Its vote sank, disastrously. The loss of their majority in Scottish seats of the Union parliament makes it currently impossible for Scotland to take the step of independence at its own hand, whatever support the SNP achieves at Holyrood in 2026.

To save itself, and to save Scotland, it must do the right thing. Since it could not make any honest promise to take Scotland out of the Union on a Holyrood result, the best the SNP can do in 2026 is explicitly to use that election as a dry-run, openly explaining that the real thing will have to wait until the next Westminster general election. (And perhaps expressing a fond hope that London would regard a head-count Yes vote in a Holyrood plebiscitary election as writing on the wall, and enter negotiations for Scottish independence without having to confront the likely debacle of a weaponised Scottish Yes vote at the next general election to the Union parliament.) Unfortunately, the party shows no sign whatsoever of giving even the slightest consideration to such a course. And Scotland remains on the rack.

Comments (10)

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  1. SleepingDog says:

    Political manifestos are not legally binding in the UK, and the prevalence of tactical voting campaigns is evidence for negative voting (to keep another party from winning a seat): the ‘least evil’ choice being uppermost in many voters’ considerations. The latter is also supporting by opinion polls on politicians and parties in general, often expressed as the least trustworthy group.
    https://www.ons.gov.uk/peoplepopulationandcommunity/wellbeing/bulletins/trustingovernmentuk/2023
    Even high turnouts in elections may be due to negative factors. But the trend is low turnouts, which is hardly sufficient for any constitutional mandate.

    If the SNP is really capable of ‘brainwashing’ “a large proportion of the independence movement” then that doesn’t inspire confidence in self-government. A right to self-determine is separate from the question whether it is right to exercise it in any particular case.

    I’ve read a lot comments on Bella on these Independence mechanisms, and far too little consideration is given to the quality of Independence. There are far more ‘bad’ scenarios than ‘good’ ones, and the ‘bad’ scenarios are much more likely if Scotland is bounced into Independence by a soft majority, a wafer-thin majority, an actual minority, or without due process and deliberation. I suggest concentrating on the constitutional framework will be much more beneficial, since we will need to secure the limitations on democracy which will reassure the electorate that we won’t be facing a mini-Westminster party system on the other side. We need political intelligence, then political wisdom; planetary knowledge and planetary wisdom. I fear we are still far short of these as a national collective.

    1. John Wood says:

      An electorate that needs ‘reassurance’ that we won’t be facing more of the same on the other side will never be satisfied. Your argument is the very essence of ‘Project Fear’. The whole point of independence is that it gives us the power to do things differently. Without it, we will always have more of the same. Of course there will always be people who fear any change, but in the words of the sign in a certain cafe, ‘If you fear change, leave it here’.

      1. SleepingDog says:

        @John Wood, it is not fear, but a reasonable supposition along the lines of “Meet the new boss, same as the old boss.” So an Independent Scotland should offer systemic change (not just personnel change).

        But if we have a chance of helping bring about systemic change in the British Empire *first*, *before* Scottish Independence, should we not take that? The alternative being a royalist Empire (bottom to the USAmerican Empire’s top) on our southern border? Especially if Scotland contains a hard core of royalists with loyalties to the south, and/or a large constituency of the culturally-captured with transAtlantic sentiments etc.

        My argument is that we need far more radical change than any I’ve seen offered by Independentistas on Bella. The reassurance I’m looking for is that the door to such radical change is not closed. And that an Independent Scotland will not simply become a puppet of external forces, or a battleground in a hot/cold/cultural civil war. At the very least we will need a transparency revolution. Leaving Scotland’s political awakening to post-Independence will be too late, in my view. The damage will already have been done by then.

        1. John Wood says:

          Put like that, I agree. But the door to radical change is there for the opening. If only someone had the courage to do it. But all of the existing parties seem determined to prove they are too poor, too wee, too stupid to seize the opportunity. Are they now all too comfortably part of the establishment, or too corrupt (bought and sold for American gold), or Is this just the Scottish cringe? Where are the red Clydesiders, or the Highland Land league, when we need them? Everyone just shuffles past and looks at their feet.

          I am tempted to stand myself but have no wish to be a politician. I just want a candidate I can actually vote for.

          But how about using this thread to list some things we might want to see and also might not want to see in an independent Scotland. I could offer you a big list and its a radical one. But let’s see what others come up with first

  2. John Wood says:

    It’s not going to happen. The SNP only use the issue of independence to stay in power. They are bought and sold for the same corporate gold as the Westminster parties and so long as it suits those who own the corporations to maintain the Union as it is, they will do anything to preserve it. Note that the corporations and their billionaire owners do not recognise even international law as applying to them. They believe their money can buy anyone and anything they choose. And if you look at their agenda you will see that they do not support national sovereignty at all, anywhere. The only sovereignty they recognise is their own.
    Among the plutocratic owners and controllers of the planet are the British Royal family, who are utterly determined that the UK will continue as it is. Contrary to the ancient Scottish constitutional position that kings rule by consent of the people, British kings rule by ‘right’ of conquest, or heredity. In essence, despite the changes in the 17th c that asserted Parliament’s co-sovereignty, they still rule by divine right. We don’t in practice get any choice in the matter.
    The SNP have been given the job of preventing independence by (1) claiming that they alone represent all ‘Yes” voters and (2) deferring to Westminster – and the Crown – at every step. They dare not go against this because they know that the British state will stop at nothing to get its own way. They are, in short, just the modern parcel of rogues that sell us out just as their predecessors did in 1707.

    The British state also knows that the SNP have made themselves deeply unpopular by their utter betrayal of Scotland’s people. It is counting on an anti-SNP protest vote that will go to a Unionist party (it matters little which one), because there will be no credible pro-independence alternative vote available. In short we have been tied up with intrigue, and set against each other to divide and rule. The British state is very very well practised at this.

    It is no use trying to tell me or a growing number of others that we should vote SNP. We feel completely betrayed by them, just as members of the Tory, Labour, Lib Dem and Green parties have all become Orwellian, corrupt, hollow shells of what they once represented. The Liberal Democrats will almost certainly clean up in the Highlands and Islands next year, simply because they are currently seen as the least worst. And that will be taken as a vote for the Union – which it is not necessarily. Some of us, including me, will spoil our ballots if there is no party or candidate that will not stand up for us. I already did this in the last local and general elections. It would be good to have a candidate I could actually vote for.

    The only possible way forward is for a new generation of independent candidates to come forward who will commit to upholding the Claim of Right and declaring Holyrood to represent the will of the sovereign people of Scotland. Any candidate who will not make that basic commitment will not get a vote from me – whatever they may promise about independence jam tomorrow.

  3. Ewan G Kennedy says:

    Dare I say, “For the cause of Scottish independence, the tooth-fairy would be a better proposition.” is a somewhat glib way to dismiss the international dimension. The ultimate destination of independent statehood requires recognition by a sufficient number of existing states, and so necessarily involves international law and practice. Last year I had a go at setting out how this might work, originally intended for yoursforscotland, sadly, with Iain Lawson’s passing, no longer available, later published by Roddy MacLeod, and accessible here:

    https://www.barrheadboy.com/2024/11/14/some-comments-on-the-treaty-of-union-and-sovereignty

    You will see that I disagree with Salvo Liberation, per Sara Salyer’s response to my effort, and my reply to her. I didn’t offer this as some form of magic bullet, but as a route which seems viable, and can be undertaken alongside other efforts.

    1. Alan Crocket says:

      So, let it be glib. But it’s surely correct. The paper does not “dismiss the international dimension” except as a means to independence. The international dimension does not arise until after independence, at which point other independent sovereign states will decide whether to recognize it. And realistically, which would not? The thrust of the paper is that Scotland has in its own hands the means of leaving the Union, legally, constitutionally, democratically, and peacefully, through the highest and most solemn exercise of democratic government which exists, namely a general election, and further that after the people of Scotland have used that means to take the option by their democratic majority, London will come to the table for a negotiated independence settlement, but will have neither right, power nor inclination to prohibit a Scottish exit in any event. Recourse to whatever actual international assistance may be got before independence only applies where no domestic route is available. In Scotland’s case, the very idea is no better than a detour along one garden path or another.

      1. John Wood says:

        We have been there before. Scotland voted for the SNP with a massive majority but the SNP failed to deliver. We need politicians who we can believe in, who will actually commit, before election that a vote for them is a clear vote for independence – or at least Scotland’s right to self-determination.

        1. Alan Crocket says:

          I’m afraid I don’t know what point you are making. Just for accuracy, I believe the highest ever national vote share for the SNP was 49.97% in the 2015 GE, which was not a plebiscitary election on independence. Whether a vote is “a clear vote for independence” depends on the manifesto it supports, and if a majority of such votes elects a majority of members, they will carry out that manifesto if they are worth their salt. Or do you insist that everything is guaranteed beforehand? The paper takes the position that the SNP shows no sign at all of doing anything like what is required, but sets out those requirements for those who care to read them. If the light is not even switched on, no one will ever see them.

  4. Dougie Blackwood says:

    This paper sound like a sensible way forward. It is right that westminster is desperate to hold on to Scotland and will continue to refuse another referendum; they got too big a scare last time and ended up throwing the kitchen sink at us. If Alec Salmond had been properly prepared, and bold enough, he would have told them what we should tell them now. Scotlands needs to make a complete break from the UK with its own currency, courts and parliament. Bugger Westminster and their Supreme court.

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