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.