2007 - 2020

A New Legal Strategy To Win Independence

We can’t be reckless and we can’t wait forever. Those who call for patience and those who call for urgent action on independence both have good points. For now, due to COVID, a referendum isn’t happening. But this debate will reignite before next year’s Holyrood election.

I’ve made a case for gradualism. But gradualism’s greatest weakness is that ‘waiting’ for a referendum means stoic suffering in the meantime. The many suffering due to Tory rule and threatened by Brexit can’t wait for change.

We need to keep our movement united, so those at the top need to empathise with a growing sense of impatience, frustration, and demands for bolder action. There is a response that can meet these challenges: push the legal boundaries of the current constitutional system.

In short, this would use the legal rules of the Scotland Act 1998 to challenge the authority of the Tory Government, support those suffering the most, and strengthen the case for independence.

In simplified terms, this is how such a strategy would work. The Scotland Act lists powers that are reserved – everything else is devolved. We know that, on paper, there are crucial areas where Scotland is legally banned from acting. But there are grey areas. The Scottish Parliament can try and pass any type of law. If the law is passed, the UK Government or a third party can challenge the law in court.

The UK Government has only challenged a Scottish Parliament law once since 1999: The Scottish Brexit Continuity Bill in 2018. This is because there is generally a cautious and consensual legal relationship between Holyrood and the UK Government.

This is quite different to many other parts of the world where non-sovereign parliaments test the limits of their power in court. This is the case in Quebec, Catalonia, and across the US federal system. It’s perfectly normal and legitimate. It’s a political choice that the Scottish Government has avoided court disputes with the UK Government over what it can and can’t do.

A more assertive strategy on domestic legislation would be a win-win for Scotland and the pro-independence movement. Here are some examples.

– A law which protects Scotland’s health service from stealth-privatisation under the Brexit power grab and Tory trade deals
– Laws to protect Scotland’s environment and food standards from Tory trade deals
– Pass higher public health requirements relating to COVID-19 for businesses, airports, and travel.
– Create safer injection facilities to combat the drug death crisis, and substantial criminal justice drugs reforms for health support over criminalisation.
– Create citizenship rights for migrants and asylum seekers. End cooperation on raids and deportations.
– Challenge DWP human rights failings in the UK social security system.
– Support and fund work to protect and advance workers’ rights.

We can act to create the early days of a better nation. The Tories may seek to subvert this in court. Fine. This would only reveal the truth. That both the Tory Government and the constitutional system threaten people in Scotland. If the Tories win in court, it proves devolution is not fit for purpose and makes the case for independence. If they lose, each case will be a huge victory for us and The People. It would prove that bold political leadership in Scotland moves our country forward. Every case would put the Tories in the dock.

Legal assertiveness is not a radical change. The Scottish Government took a legal risk with the Continuity Bill. It entered the Miller case to scrutinise the Sewel Convention. It defeated legal challenges to Minimum Pricing on Alcohol. This month Minister Mike Russell, regarding the power grab in the Trade Bill, said the Tories “would have to essentially go to court to force its implementation”. This is the determined approach we need, and it applies beyond Brexit. We need to be bold on the domestic agenda to persuade a sceptical public that everything is being done to solve people’s material problems – and that the limits in this area are linked directly to the constitutional settlement. It is not enough to tell people your powers are limited. You need to prove it.

This requires a new found political will and confidence on legal matters. Too often our politicians are deferential to legal officers who prefer avoiding legal disputes. This is a conservative reading of the British constitutional framework – there is an alternative approach.

Former Labour First Minister Henry McLeish says “test the boundaries of all reserved issues”. Scottish Drugs Forum CEO David Liddell says: “We’ve got a crisis in Scotland… we shouldn’t wait for the home secretary in Westminster.” Joanna Cherry and fellow litigants defeated Boris Johnson’s prorogation in court against the odds.

Some, I understand, fear a backlash to such court cases. They tell me that it could appear like a lack of respect for the rule of law. But I think they’re missing a few points. Passing legislation and facing challenges under the Scotland Act is following the rule of law. I am not suggesting the government ignores the legal outcome. Secondly, Westminster has no problem playing dirty and throwing legal cooperation out the window. They’ve done it by ignoring Holyrood and the Sewel Convention, in the EU Power Grab, continuously undermining the Scottish Government in the JMC framework, and stonewalling legitimate requests to discuss a Section 30 sanctioned referendum. Enough is enough.

The Tory Government is already intransigent and becoming more trenchant in its disregard for devolution. Unless there is a sea-change, independence cannot be achieved without legal friction. There is growing recognition of this. The First Minister has not ruled out a referendum without Westminster’s consent, if intransigence continues. Pete Wishart MP has said if Westminster continuously shuns cooperation when there is a sustained majority for independence, Scotland should withdraw from current UK functions, seek discussions with EU partners, and even end participation in the UK Parliament.

Another much discussed option is to pass legislation to hold an independence referendum without Westminster’s consent, a dispute which would likely end up before the UK Supreme Court.

If Westminster ignores election after election that approach may be required. But it would create legal conflict our political system isn’t used to and can’t be rushed or done lightly. The vast majority of Scots, even many within the independence movement, have no experience of the legal details of Section 29, Schedules 4, 5, and 6 of the Scotland Act. This knowledge is vital. The approach I’ve laid out aims to change that starting now. Personally, I want to do my bit. If you agree and want to know more, you can join me.

I’ve just completed an undergraduate and post-graduate diploma at law school, in part to understand the devolution legal industry and its role in our path to independence. I want to educate, agitate, and organise to spread these arguments and help win independence.

This week I’ll launch ‘Controlling Scotland: the legal limits of devolution’. Through the series I’ll explain the Westminster rules that control what Scotland can and can’t do, how this system works behind the scenes, and expand on these vital arguments for change. It’ll be published through Skotia: media for a better Scotland. You can get the regular episodes and more through supporting our Patreon page.

The case for independence has never been stronger and support has never been higher, but we’ve got a bit further to go. A new legal strategy will play its part. Together, we’ll win.

Comments (73)

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  1. Cathie Lloyd says:

    I’d reject the idea if gradualism for respect for democracy. We need to prioritise getting a resounding majority for independence. Legal cases won’t do that.

    1. Anndrais mac Chaluim says:

      I think the idea is that obliging the UK government to be continually challenging legislation passed by the Scottish parliament would stoke popular grievance against the Union and increase support for independence at the ballot box.

  2. Pat Hackett says:

    I can’t see a downside to this. Would like to hear debate on this but at present this seems to me to be a good way forward.

    1. Cathie Lloyd says:

      How would interminable legal cases help us to win support for indy? The only way I can see is a dual strategy but we mustnt lose sight of the need to grow support

      1. C MacIver says:

        I think the idea is as follows: You build support (more than any campaigning can) by demonstrating the benefits of divergence – essentially delivering on partial independence. You diverge more by legally testing the boundaries of devolution. if you win those cases you can demonstrate the benefits, if you lose you highlight the limitations of devolution and the restrictions placed on Scotland by Westminster.

  3. Axel P Kulit says:

    Ideally this strategy would make Scotland such a PIA that the English force Westminster to throw us out in search of their “independence”.

    I have been in favour of harassing Westminster for a long time.

    Sounds good.

  4. Ian McCubbin says:

    Your thoughts are fine, but I feel we are past this stage of selective law making as gradualust approach

    However it may work in conjunction with Allen Buchanan ‘s points in his legal book Justice, Legitimacy and Self Determination.
    CH 8 and 9 cover how a possible legal UDI could work if Scottish Parliament is tampered with or subverted by Westminster.

  5. Morag Williams says:

    Absolutely.

  6. Indyman says:

    The Murrel/Sturgeon duo and their cosy little cabal in the NEC are terrified of anything that might threaten their little gravy train. They know that with independence the SNP will have some real competition in Scotland from more radical and left wing parties. Their vision for Scotland is a carbon copy of the neoliberal UK, worshipping corporate finance and the multi millionaire property owners who will generously reward them for services rendered on their retirement from front line politics. Workers and tenants are to have no more rights than they have in the UK, they will continue to be sh@t upon like they are at the moment. We can do better than this as a vision for Scotland’s future.

    “Question: How is a monarchy approving, capital worshipping, crypto-conservative, neoliberal political party that is fraught with internal division, is controlled by a married couple, and doesn’t give a single f*ck about the working class going to lead Scotland to national sovereignty? It isn’t.” – https://www.youtube.com/watch?v=YiTYKjKg73s&feature=youtu.be

    1. Josef Ó Luain says:

      It’s best to remember where we are—this is Scotland—if it were anywhere else it’s doubtful if you would have the material to write any of the above.

      1. Pat Hackett says:

        So are you saying is all you want is the right to complain and happy to be ignored because you have had the right to complain. That is if no use to anyone. You would be the ideal slave to a slave owner.

    2. Roddster says:

      Although independence is a must, your comments just sound pretty Labourite with a hint of communism.

  7. Ian Grant says:

    Have felt we should have taken this approach years ago. In particular we should have refused to cooperate with Home Office on Dawn raids and deportations. Should have shut down Dungavel on human rights and child welfare grounds. Blocked nuclear convoys. Agree with this, and all other approaches

    1. Fraser Darling says:

      Ian, I echo your exact words. I was going to make the exact same point.

      I’d add the facilitation of the use of secondary/alternative currencies including the Euro.

      There are several legal alternative currencies already in use in the UK including the Bristol Pound, the Brixton Pound and our own Eko, used in the Findhorn Eco village.

      We should also already have a stock exchange.

      The time for all of this and the suggestions in the article was over the last decade. Now is time for action, before we have no Parliament, or just a totally token one.

  8. Andy Anderson says:

    I agree with this approach Michael it is a win/win situation for the yes movement if Westminster take legal action against us in for example, the protection of the NHS, we will will massive public support and it will damage the Unionist case and strengthen ours; if they do not oppose us we strengthen the position of the SNP Government. I like it.

  9. Michael Breslin says:

    This is excellent. It strikes a path between doing nothing and being reckless.

    It can and must be pursued. Greens and SNP should support this vigorously and you might think some Labour members would too.

  10. Jimbo says:

    I like this idea.
    I’m getting on and I want to spend my old age in an independent Scotland.
    Only stumbling block I can see to implementing this idea is the the gradualists and the no too serous about indy careerists at SNP.

  11. Daniel Lamont says:

    I would strongly support this approach. It is the best way forward at this point and doesn’t rule out other approaches. Michael is right that we should not be afraid of using the courts. In that respect, Quebec is s good model to follow. The time for gradualism is over but our leaders are wedded to it.

  12. Isabel Cooney says:

    We most definitely need to be doing something constructive and I am interested in any action that will move us forward.

  13. Michael Gray says:

    Thanks for the positive comments!

    I’ve made the case here in 1200 words to make it fairly accessible, but of course that means I haven’t covered all aspects or consequences of such a legal strategy. I’ll be setting out more points in the future and look forward to further discussions.

    1. Coinneach says:

      How about a law that bans nuclear weapons on Scottish lands and seas as well as banning transportation of dangerous materials (like the regular truck convoys carrying radioactive materials to/from Faslane) without express permission of Scotland’s Government. This would allow permits to be issued to the NHS to move radiography etc supplies, but should be declined to UK Gov’t and the Navy. That would concentrate minds very quickly

    2. Fiona Sinclair says:

      Sorry, Michael, I’ve read some of your previous work and these proposals don’t stack up – as others have said, we are far too late in the day to consider these proposals as having any realistic chance of `delivering` independence. Some of these could have been done before – I do like the proposal to end co-operation with the deportations of asylum seekers and refugees (we know enough to know that it is all too possible that some people have been sent back home to their deaths). Likewise, the Scottish Government could stop at least some of the sanctions being applied by the DWP. However, at the end of the day, we know that, unless there is a clawback of funding to other parts of government (not impossible) there is little slack in the system – something the UN Rapporteur on Human Rights has clearly stated. Whilst I have some sympathy with those who have become addicted to drugs, I wonder why you didn’t suggest a far more potent action that could be taken by the Scottish Government – to legislate to permit the cultivation and manufacture of cannabis based drugs to treat pain (there is a clear danger with the current use of opioids), MS and epilepsy (some children cannot tolerate the drugs that are currently in use and their condition is literally life-threatening). All it needs is the political will – but we’ve seen this is absent. Your suggestion to contest food standards is certainly something that the Scottish Government could do. Is this likely, when the SNP have comprehensively failed to do anything with the Yes.Scot website – apart from asking people to print out just one boring, unconvincing text on a postcard, when material produced by YESsers is infinitely more inspiring and professional? This is on a par with their refusal to contemplate a legal case – now left, yet again, to motivated individuals, such as Martin Keatings, to fight. Whilst I firmly believe that there is no need to establish the right to self-determination, it will, at least, determine what category the British state has placed us in – partner in a union formed by Treaty, or a colony – which at least makes the next steps clear.

      I think that the sense of urgency over the political and economic future of Scotland is entirely absent from much of the published writing on independence. It has always irked me that there has never been a sense of this in the independence movement – but that is changing at grassroots level. I’m not the only one who is quite certain that there needs to be a full, incontrovertible commitment in the 2021 Holyrood campaign from all political parties who claim to support independence to establishing independence via this plebiscite, if a referendum is deemed to be outwith the powers of Scotland’s parliament, or if Westminster continues to refuse `permission` for this. More than 50% of the seats at Holyrood should be deemed the people’s permission to hold a referendum, and more than 50% of the vote should be cited as grounds for permission to negotiate independence for Scotland.

  14. Archie Hamilton says:

    Over what timescale would these various pieces of legislation be passed? How many pieces of legislation would be necessary to achieve any impact?
    Wouldn’t it simply bring forward the anticipated move by Westminster to bring down the shutters on Holyrood?

    I don’t claim to have any legal or political knowledge so these are genuine questions.

    1. Michael Breslin says:

      There’s a theme to some of the comments and that is timescale. There’s also been mention, rightly, of protecting the SNHS.

      My view is that the priority has to be an early bill to protect the SNHS and if challenged that provides the maximum potential support for independence.

      But it has to be very soon.

  15. Joe hughes says:

    The one thing that I can’t grasp is why the union is legal at all as it was not democratic in the 1st place it was not voted for in a referendum by the people of Scotland it was forced on them by an English government and rich landowners

    1. David Mungall says:

      Joe,
      Fair point, but the fact is the Union was legitimised by the 2014 referendum.

  16. Derek Aitken says:

    A draft constitution for the Scottish state was presented to the Scottish Parliament (Michael Russell MSP) by Dr. Mark McNaught last year.
    I think it’s imperative that this is discussed, amended where necessary, and accepted by the Scottish Parliament asap and before the end of the year and before Brexit kicks in. I believe on or soon after the 1st of January Westminster will scrap devolution and the Scottish Parliament. What will your gradualism be worth then?

  17. MBC says:

    The biggest case against gradualism is that the enemy isn’t standing still. They are steadily blocking all the exit routes. Finding more mechanisms to thwart and bind. The goal recedes, the bar raises. The hopes fade.

  18. Dave McEwan Hill says:

    There is a false dichotomy about “gradualism” and “fundamentalism”. I am a fundamentalist who has always recognised that our progress would be gradual. But the only rerason our gradual progress has continued is because we have retained our fundamental aim at all times and never settled for such as devolution. We got devolution conceded to us because we stuck to our guns and demanded independence and continued to make steady progress on that demand.
    And there is never a defined “right time” in politics. We have to be ready to dart through the door when the opportunity presents itself – which is very often very sudden and it just as suddenly recedes. Most times sadly in politics you only recognise the “right time” when you’ve missed it and it has passed.
    There is no better time than right now to be raising our profile. A new independence campaign and team should be put together. Just doing so gives out the message – and makes us ready. And leave small rota in London and bring our Westminster team home to work in the constituencies.

  19. Lorna Campbell says:

    Why waste lots of money on small domestic cases when we could go for broke? The Treaty requires to be ‘sound’ in law, for starters. If people would just stop and think. After independence, we are going to have to negotiate our withdrawal from the UK. That is when we will need to know that Treaty inside out, because there will be no point in arguing that we own the remaining oil reserves, for example, if we cannot bring evidence to show that the seas the oil is in are also ours. You can bet your bottom dollar that Whitehall will have its contents and implications under its belt on behalf of the UKG. International law will go so far, but countries must have agreed boundaries. It require Holyrood to take the bull by the horns and insist that it has the political power (via the Treaty) to take a case to international law based on it. If the Treaty is not extant (it is) then it is not extant for England either. The nay sayers can bump their gums all they like, just as the losing side in a civil case in domestic law would have to thole it. If you have consistently over 50% in the polls over several poll takings, then independistas have the legal legal right to petition the UN General Assembly for a Question to be asked in the International Court of Justice as to Scotland’s impossible position within the Union, the Treaty notwithstanding. This would open up our case to the international community, and I believe we would bring England-as-the-UK to the negotiating table very quickly. The problem, as ever, is the Scottish government that seems hellbent on a S30 Order, which there is no guarantee we will get, and a referendum, thereafter, that we might easily lose.

  20. Raymond Soltysek says:

    The link to your Patreon page doesn’t seem to be working? Great article!

  21. Ewan Ritchie says:

    The way I see it: we win the next election and when the chance to hold a referendum is predictably denied we go to the supreme court and claim this is illegal or unconstitutional, anti democratic, whatever works. I can see the UK supreme court ruling in our favour.

  22. Mark Tracey says:

    Is there no get out in the wording of the original ‘Act of Union’ of 1707. Also the British parliament which took over did not stick by many of the
    agreements in this act such as parliament sitting in Edinburgh every 3 years.

  23. nbttbm says:

    Understand what you are saying but the time is past to play games and win moot legal points. Only legal focus now should be on dissolving the Treaty and Act of Union and United Nations Charter right to self determination via a Referendum orgainised by Scottish Parliament. Asking UK courts to help our cause is wasted energy. As said by many Tories, a country cant be held in a union against its will. It’s all about transparent process. Let WM do as it will. It won’t agree to a vote it will lose. As much as previously respected him, Mr Wishart is becoming part of the problem and not the solution.

    PS I have a law degree too.

  24. weegie42 says:

    Others have said it below. BJ and WM have a majority and can do what they want. So wef 1 January when UK out EU and all powers back to WM abolish Scottish Parliament as it is against the best interests of Scottish people. You have run our of time for piecemeal and protracted legal action. This Union came about by treaty of Union. Presume as a treaty we can resile from it. A majority win in May, assuming not abolished before then, would be the mandate for action.

  25. mark whittet says:

    To de-selected SNP MSPs, cllrs + members

    Here’s how you can continue your political career +win Scottish Independence: Join

    Scotland’s Independence Referendum Party
    VOTE YES-2-SCOTTISH-INDEPENDENCE ©
    http://www.SIRP.Scot

    Vote SNP 1+2 isn’t working
    https://tinyurl.com/y39rq3vd

  26. mark whittet says:

    BellaCaledonia comment is founded on very shaky grounds. Here’s why;

    A 2021 YES super-majority of 90 MSPs (SNP 65 + 25 Indy-list MSPs) WILL force UK to recognise Scots Independence – just as with the super-majority in the 1918 Ireland elections

    https://tinyurl.com/y39rq3vd
    https://tinyurl.com/yapptyqc
    https://tinyurl.com/y8e37ws4

    Join http://www.SIRP.Scot

  27. Janet Graham says:

    I’m 100% behind this project! How does any boundary stretch (or break) without challenge. It’s ridiculous that Scotland is cap in hand to a Parliament who treats us with disdain and contempt.

  28. Marga says:

    First thoughts, legitimate isn’t the same as legal as Michael will know. Justice can be very unfair. All this, while logical, assumes that other parties including EU will welcome a change in the status quo in troubled times, and that they will play fair. Look forward to being proved wrong.

  29. James Mackenzie says:

    keep the pressure on Westminster and build support within Scotland to achieve a resounding majority for independence

  30. SleepingDog says:

    In his chapter on Britain and the American Empire in the second edition of The Blood Never Dried: A People’s History of the British Empire, John Newsinger writes (p244) “by any objective criteria the most dangerous terrorist organisation in the post-war world has not been Al Qaida, but the American CIA. The CIA has assassinated and tortured people across the world, sponsored covert wars that have cost hundreds of thousands of lives and overthrown democratically elected governments.”
    Laws work by objective criteria, and this CIA organization seems like a present threat to everything we should stand for, so the Scottish authorities should proscribe it as a banned terrorist organization, and Police Scotland should make hunting agents and assets down a top priority.

    Similarly, Royalists who believe in concentrating state power in the hands of a hereditary ruler under some divine pretext should be classified as domestic extremists, sectionable under mental health legislation, and detained until a cure can be found.

    Alternatively, members of either of these groups could be deported to England where they may find an appropriate welcome.

  31. shaun moncur says:

    Interesting but feel that action needs taken now

  32. Douglas Wilson says:

    Some good options in there to explore, Michael.
    However, we cannot wait till May 2021. That would be a category error.
    When your political adversary is in a weak position as Johnson is, you must be ruthless and press home your advantage while there is still time.
    An alternative to an advisory referendum would be for Nicola Sturgeon to resign and call a Scottish election and declare it a de facto plebiscite on independence on Saint Andrews’ Day 2020. That is clearly a legal route. All she needs to do is resign and, when no other FM commands the confidence of the House, parliament must be dissolved and a fresh election called according to the Scotland Act.

    1. Douglas Snell says:

      SG cannot simply “resign and call an election”. The opposition parties need to be given a period of time to form an alternative administration first. There is a strong risk that Con + Lib + Lab would join forces to produce a coalition unionist Government thus preventing an early election.

  33. Ged says:

    I would like to add my little two penny’s worth to the debate on Scottish independence and the section 30 order.
    The reason we are a part of the UK is because of a Treaty between the governments of Scotland and England; a treaty was signed. That means that any of the two governments can withdraw from that treaty if they so wish. That would be the case if England had a government; it doesn’t. Only Scotland has a legal government therefore only Scotland can decide if it wishes to abide by the treaty as it has no English government to negotiate with. The UK is exempt from negotiations as the UK did not sign the treaty; it has no business regarding the treaty.
    That said I would find it marginally acceptable if the Scottish government declared UDI (and put up with the faux international outcry) if we had an independence majority in Holyrood and Scottish representation in Westminster. After all, even Margaret Thatcher accepted that. We would have a majority under two different voting systems and even the corrupt UN wouldn’t be able to put up a viable case against us for long.
    Just a wee warning. The fifth columnists are already amongst us spreading despair, confusion, and rebellion. Take no notice of the doomsayers for they are not the majority; we are.

    1. Lorna Campbell says:

      Actually, Ged, the English behave exactly as if they do have a parliament, and, indeed, most of their MPs post 1707 have pressed the point that the English government lived on. It is the very crux of the Crawford and Boyle Report. It is not true, albeit EVEL, de facto, created an English parliament, albeit not one de uire (in law). That was without Scottish agreement, so it is ultra vires, in any case. The Treaty precludes devolution as it is set up because a partner cannot devolve itself to become an inferior (in law) part of a bi-party Union. Almost every single thing that the UK parliament and government do is ultra vires. That is why the Treaty needs to be ‘sound’ in domestic Scots law and adjudicated upon in international law. That would almost certainly lead to the dissolution of the Union. Almost every single aspect of British Constitutional Law is English Constitutional Law, so we have sovereignty of parliament, a principle unknown in Scottish Constitutional Law. The whole thing is an utter mess and needs to be sorted ASAP. The reason that the UKG veers away from using the Treaty (as they did in 2013 with the Crawford and Boyle Report; it was never used in 2014 by the UKG or Better Together) is that they will not have a leg to stand on, and will have to cede power. Thy know it. The Treaty is a bomb in legal form and will blow the Union apart of it is ever contested by either side, albeit England has come out of it considerably better than we have. I leave it up to you all to ask why it has never been used for that purpose.

  34. Lindsay Craik says:

    You have laid our a sound process for the politicians, who should take this on board and prepare before the milestones arrive

  35. Roger Emmerson says:

    Yet another map that unaccountably omits all or some of the Northern Isles, Shetland in this case. If you purport to speak for the whole nation, show the whole nation.

    Despite that, a good piece.

    1. it’s not a map it’s an illustration

      1. Wul says:

        Ahh! OK. That explains it. I was using it to get to Gingham, but I got lost.

        1. David Mungall says:

          Brilliant comment 🙂

  36. John Drennan says:

    My understanding is there is one road block alone to independence, and that is the granting of a second S30 order by Westminster. If that one road block is removed, things could begin to move quite quickly I think. Any legal challenges right now should be pushing hard to establish Scotland’s right to have such a referendum whenever it damn well pleases. Once the will of majority of Scottish citizens is heard, the current Scottish Government have all the mandate they need.

    1. Lorna Campbell says:

      Then all we have to do is actually win, John. Remember Quebec.

  37. Hugh Mckee says:

    I would like to know more about how sharing ideas with NI might help. We are as culturally close to Ulster as we are to England. In the end it will be people’s feelings not legalities that will bring about change. There are opportunities galore now. We could choose to use the new NI Coronavirus App for example. Border complications do my head in but that means we should understand them better.

  38. Michael Breslin says:

    Interesting debate but Michael Gray’s proposals still look sound.

    Question is will SNP & Greens adopt it?

  39. Martin James Keatings says:

    Not really a new legal strategy to be fair

    1. Fiona Sinclair says:

      See my comment above Martin – I gave you a mention!

  40. Alan McNaughton says:

    Oh if Only We could ask the Current FM on challenging the UK Government in Court!
    But We can’t She has said that Independence is Off the table Until She personally & Solely defeats Covid-19!!!
    You couldn’t make this Up!!!

    1. Douglas Wilson says:

      You couldn’t make it up. Our FM wants a gold-star referendum. Like at primary school. Gold star, silver star, etc.

      What is that? It’s the infantilization of politics, in fact, of life. That’s what it is. Sturgeon is a good minister of Covid19 but she doesn’t have the chops to take on the Tories. Is she a good FM? I think so, but for after we are independent. Not now. Now we should be in the middle of a full scale dialectical war with London, and there’s no a cheap out of Bute House…we need some fire-power…

      Who has got the right combination of qualities to crack the nut of 1707? Angus Robertson? In so many ways yes, but too close to Murrell and Sturgeon to be a safe bet. Joanna Cherry? Great brain, but not a leader in my view, too intellectual, not visceral enough. A rank outlier like George ‘crazy horse’ Kerevan? Has the brains and the fire power for sure, but the Scots wouldnt vote for a Marxist, no chance of that. Mhari Black? I would vote for her but too young really.

      Salmond has been neutralised, he’s damaged goods…

      So, even if Sturgeon stood aside, it’s no easy task to replace her…

      1. Douglas Wilson says:

        We are a sovereign nation, constitutionally recognized as such since 1320. We don’t need a S30 order. It would be better to get one, but if the crazy right wing movement which has hijacked English politics will not agree to give us one, then we must confront them head on…

        1. Douglas Snell says:

          How, exactly, will you confront them head-on?

  41. Craig P says:

    How about a law banning people without a permanent address in Scotland from owning more than, say, 50 acres?

    If nothing else, we’d soon see who was really was in charge.

    1. Fiona Sinclair says:

      That’s similar to my own views on land reform – although I would not permit anyone who is not a citizen to own any land. I would also ban ownership of more than 3,000 acres, tax land in a way that would make it eye-wateringly expensive to use it for grouse moor (there are various ideas out there as regards Land Use Tax and Land Rental Value) and I would not pay a bean in conservation payments to grouse moor owners and those owning more than 3,000 acres in the interim.

      When you see who Pete Wishart and John Swinney are hobnobbing with and the fact that the Duke of Buccleuch’s land manager is `advising` the Scottish Government on the economy, you get an idea that the above prospectus hasn’t a snowflakes chance in hell of being adopted by the current SNP leadership. None of this is particularly radical – the Swiss wouldn’t let a foreigner buy even a house until they’d lived 10 years in Switzerland (don’t know if this still applies) and the Irish would not let a foreigner own more than 200 acres.

      One just gets the impression that there’s no appetite for independence, when there’s zero interest in showing the Scottish electorate the negatives of being in the union – nuclear waste dump / Nirex anyone?

    2. Lorna Campbell says:

      Indeed, Craig, land reform is absolutely crucial to independence. Our system is open to all kinds of nefarious practices and nothing thus far goes nearly far enough.

  42. Lawrence says:

    It makes absolutely no difference, any court action will appeal to the final arbiter and now that we are out of the EU that role reverts to the Westminster controlled English Supreme Court, Westminster just need to send them a memo on what the outcome is to be and game over, our only chance of a legal challenge was while we were still part of the EU with the European Court of Justice as the final arbiter, that chance has now gone because the SNP deliberately dragged their feet, the opportunity has gone, the SNP have blown it, the chance of a referendum has gone and independence with it, the English Supreme Court will reject it, the chance has gone and the SNP are to blame and that’s the truth

    1. SleepingDog says:

      @Lawrence, I heard that “The Court of Justice of the European Union continues to have jurisdiction over the United Kingdom during the transition period.” which I believe runs to the end of 2020.
      https://ec.europa.eu/commission/presscorner/detail/en/QANDA_20_104

    2. Ernie says:

      No WM isn’t the final court. Remember Scottish inner high court can refuse English supreme court referral from wm. Then WM will have to revert to the International Court. Wm knows going this way especially after 2014 lies that the case has a probability of going against wm.

      So know WM does not have any legal right to go to there supreme court if Scottish inner court refuses them right of appeal to that court

  43. Margaret says:

    Sounds like a plan….

  44. PaulinEd says:

    Ultimately at the end of the day (as long as it a majority in favour of independence) it doesn’t necessarily matter if not everyone is happy about independence, the goverment could initiate the process and anti people would just have to deal with it. Governments do unpopular things all the time. Just look at Bozo and his motley crue

  45. Ernie says:

    Nicola needs to get her finger out and stop bloody worrying about any legal challenges.
    It took two nations to sign the 1707 treaty under duress I might add, from three English Armies at the border incase Scotland didn’t sign the treaty.

    55 is now the percentage of Scots who want independence. WHY IS SHE DITHERING.

  46. Sylvia Willmot says:

    Is it true that despite being in transition Brexit wise, England are not following the guidelines as regards the migrants?

  47. Douglas Snell says:

    I see all the above as good on all hands, except for the costs of defending our new assertive legislation. Also, how do we counter the dictat of the Presiding Officer, who is charged with declaring whether or not proposed legislation is within competence? Might these factors not limit the range of our ambition?
    On the positive side, in addition to the suggestions above, we have a clear remit to accelerate the land registration programme and might attempt to institute penal fiscal sanctions on landholders within whose properties a whole range of evils are currently being perpetrated, from the poisoning of raptors downwards, and especially in those cases where landholders seek for their own financial benefit to restrict public access to their lands and coastlines. I would even be happy to see such estates brought into the Scottish Parliament’s direct administration in those cases where repeated offences are recorded, even if the direct perpetrators are never identified. Land “ownership”, I believe, implies responsibility for the behaviour of its employees and users.

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