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.
Very interested article. I’m for giving it one last go at securing an indie ref. If all else fails though, this does look like a good plan. Only real worry is that we’d need to demonstrate an indie majority to get international support etc. How to do it sans ref?
Paul Greenwood 13.05 – A man who loves big words, but doesn’t understand simple statements.
We all understand what Craig meant! Perhaps a wee trip back to school for you Paul.
A thesaurus is for reference not for residence.
My variation on your theme and as published in the National in July is:
withdrawal of SNP MPs from Westminster but now on the grounds that the Supreme Court decision highlights the breach of the Royal Assent protocols and subsequent breach of the Treaty of Union. In the process they give notice of intent to dissolve the Treaty of Union. The National Assembly of all of SNP elected representatives would presided over deliberations on a draft constitution.
This would enshrine protection of Human Rights, protection of the Scottish Health Service, removal of the nuclear menace, give hope to young people for a future in a fair and equitable country because it’s in the constitution. So rather than voting in a binary referendum for independence or no independence, this offers a positive choice of voting to approve a new constitution. It makes people feel positive about voting for a feel good constitution. Who in the electorate wouldn’t vote for that? And when the people of Scotland have thus spoken, the Treaty of Union is annulled.
It is worth considering the Irish precedent here. A majority of Irish MPs (at Westminster) declared independence. That in the end, was recognised by Westminster. Ireland was not an independent country, after the 14th Century, and was effectively colonised by England, so Scotland has a clearer claim. We don’t want a Black and Tan episode, but Holyrood needs to canvas Canadian, and New Zealand opinion and support to avoid that. Surely we can get support from the diaspora? A draft constitution is already underway see scottishconstitution.com. That project needs all the support it can get.
A very interesting and thought provoking article.
No former colony of the British Empire ever gained its independence by asking England for it.
When the time is right and it looks like it’s coming near, go for it.
IB – “So rather than voting in a binary referendum for independence or no independence, this offers a positive choice of voting to approve a new constitution. ”
You wouldn’t necessarily need a referendum. The SNP could put a new constitution forward at the next Scottish Parliament elections. If pro independence parties win a majority, the the SNP could declare Scotland to be independent of the UK.
Well said Craig, The General Assembly would have a majority of 18 as things stand.
This makes my heart sing! Have you communicated this to the First Minister and the Scottish Government?
We’re getting so close to the cliff edge and time is running out, maybe not for indy2 but for WM grabbing power that’s stacking up. Every action by them then we have to counteract which will take time which we ain’t got!
It’s a gamble but I’m know getting worried why Nichola is so quiet, oh please please tell me you have an ace card?
Then rhe Scottish Parliament would have to recognise the right of the Automous Republic of Crimea to accede to Russia…..and it should so do.
Based on the writings of this blog’s author, the people of the Automous Republic of Crimea have no right to accede to Russia.
I believe the author of this blog used the word annexation (incorrectly so) to describe the actions of the Automous Republic of Crimea.
If ever Scottish Parlament even hints to the recognition of Crimea, there would never be a hope for Scottish Independence. USA and EU wouldn’t allow this. Imho.
I fully agree, I have sat and watched as the UK descends into political turmoil, and moves towards a right wing dictorship albeit a velvet one, the time for referendum initially anyway is finished the only way to save our progressive political structure is by seize the day and deliver what is the most obvious solution to this farce that passes as politics and democracy in a failing state.
George Kerevan makes a lots of sense here.
https://www.thenational.scot/news/17301984.the-uk-is-unstable-now-is-the-time-for-scottish-independence/
When we did history at school, we were told that the map of Europe after WW1 was decided at the various peace treaties of 1919.
However, in recent years we were told that what those treaties actually did was to recognise the reality ‘on the ground’.
I think that that later interpretation is far more likely to be correct.
It is a bit like arms control treaties, they tend to formalise what was being planned anyway.
Wow! A most interesting and encouraging perspective which I heartily and intellectually endorse. I remain faithful to the belief that the Scottish government / SNP know what they’re doing and are still beholden to the cause, but my faith at times is being tested to the limit. I see Scotland being continually kicked, criticised and diminished while we do everything reasonable to help resolve the wm dilemma. I have never believed that our valid and just ambitions for independence should be associated with and contingent upon the lunacy of our neighbours, so the idea of waiting until we see the pathetic outcome of this charade makes no sense whatsoever. I too would be happy serve the cause admittedly without your massive experience in the salient legalities, but at least to hold the door open. Thank you.
Mind blowing!
If this could actually happen…..though I’m not sure there would be overwhelming support from Scots
I think I mean… there would need to be a substantial majority and the polls seem stuck at 45%
It would be wonderful and I certainly would support it!
All independence supporters should send Craig’s article to their respective MP’s and MSP’s as soon as possible.
Re your proposal to withdraw from the Act of Union.
It’s an imaginative idea and it could work. I support the idea even though I was born and live in England.
To garner support you say “We should be lobbying not just the EU but every country in Africa, Asia and South America.” While I am not up to date on who might sympathise with Scotland in this bid, one thing I am sure of is that England has made many enemies over the years.
One fact I found while trawling the web recently stated “Of the 193 members of the United Nations, Britain has invaded 171 of them.” * So there could be many potential allies out there, if old grievances were counted.
*(https://www.snapple.com/real-facts/1470)
Music to our ears. Let the Scottish government act now.
We are Independent, it is first a state of mind, a natural one.
Scotland is.
What is amusing is trying to foretell who, which nation’s government will choke on it, be the grudging last to recognise us?
I agree the time is now. England is a mess. The Tory government totally corrupt and looking to take all of Scotland’s resources without any agreement from the Scottish people.
It’s hard to see anything positive from Brexit.
But at least it may provide some impetus for Scottish Independence.
I guess quite a few English must envy Scotland her chance to break free from this shambles born of a semi-crazed Conservative Party and a deadbeat Labour opposition.
And I dare say that NI won’t be hanging around for very long after Brexit either. Economics alone will see to that.
Many of us in the North of England are wondering how can we join up and secede, to be governed by the Scottish parliament.
I would agree, if I did not believe that all governments are corrupt.
This is more like the thing. No time to lose. Act immediately Scotland!
Great article Craig, and although I agree with your sentiments and a desire for independence, the legitimacy of your arguments are not a plan for success.
If the ultimate intent is for Scotland to be independent AND successful, there are a multitude of detractions that need to be considered and prepared for prior to offering another iny ref.
Where is the plan to address every roadblock to success that Westminster will, in all probability, erect in the event of independence? On what sustainable basis will Scotland’s economic future be underpinned? What government spending and services will be cut to compensate for a post-independence recession scenario? What is the consensus on: NATO membership, ECJ supremacy, land reform, the Queen as head of state, national currency, taxation policy, the NHS, etc, etc, etc?
If there is such a plan Craig, where is it?
For without a plan, as the saying goes – a failure to plan is a plan to fail.
(Again) Well said, Craig, bring it on! However, like you I am losing, in fact might already have lost, faith in Sturgeon — I don’t think she nor the SNP pension-pot watchers have the stomach for this. Christ, I hope I am wrong about that.
Dear, Craig,
while the number of possible comments is almost incredible, so I’ll simply post these few words ~
Potential?
The UK faces bills, in the billions, we hear,
such chaos, much, much more than a tear!
Theresa May, however, is implying that
she Is wiser than any rabbit from a hat?
© Ewen A. Morrison
Furthermore, thank you and please add me to your countless supporters,
Ewen
I think this is the most sensible take on independence. If Scotland waits for permission from England it will wait forever.
Nah, I don’t see a substantive, practical difference between Craig’s routemap and the presumed tactical journey that Nicola appears to be on. Craig’s “confirmatory” vote v’s Nicola’s “enabling” vote. It’s the vote that matters stupid!
Anyone thinking that the 20% swing towards independence seen in IndyRef I will be replicated in IndyRef II is delusional. The low hanging fruit was harvested in 2014. Further movement from intrenched positions wil be hard won. Nicola is playing to a very socially conservative audience. The epitome of reason against the English Nationalist fanatics in Labour and Tory ranks. That’s the domestic agenda.
The same strategy plays constructively in the international arena. It shows that the Scottish Government is not a wrecker as per Westminster, and can be welcomed into the UN and EU (if that is what the majority of the Scottish electorate want).
YES!!!!!!!l
Aye exactly..there’s nae time for by the book referendums..its about saving our nation..not chancing dark forces keeping us in union like 2014..sick of snp going for indy ref 2 talk all the time..be years before they do anything..its not same as 2014..its truly about saving our nation.
Craig Murray’s views on Scotland withdrawing from the treaty of union by a mere declaration of MSP’s, MP’s and MEP’s would not be wise, absent a referendum. It could be that the majority of Scots do not want independence. His reference to the Kosova case fails in one important respect, at 6.71 [a] on the opinion….”The declaration evidently had the strong support of the people of Kosova; It reflected the will of the people substantially declared”. The will of the Scottish people [in the referendum] for the union with GB was strong and reflected the will of the people of Scotland substantially declared. If Scotland declared UDI without a referendum, it may not get International approval it could cause enormous friction in Scotland.
Henry Law,
I don’t agree with as with regards the ‘Will of the People’, which allegedly was expressed in the IndyRef1, the result of which was driven by Project Fear, much as the result of the Brexit Vote was driven by a failure of Project Fear, and it failed in 2016 because many knew the elites were telling lies, whilst the UKIP nut brigade were also spreading filth far and wide – the fact remains, with Brexit, that it was the murder of Jo Cox’s that tipped the scales, had it not been for her murder, its likely that the Brexit result would have been 54% – 46%.
I mention Brexit and the Jo Cox effect because on a balance of probability, with a Tory dominated Westminster, what CM has outlined is far from fantasy, its indeed a pathway – its a Constitutional Assembly that would set out the actual plan, the detail of which the Scottish electorate could vote on, once endorsed its politics as usual as one needs an Elected government – so, and with the threat of continued Tory dominance of Westminster, such an outcome as discussed by JM is viable, that is viable today.
Now, and as I see it, the only fly in the ointment of this plan would be a successful Confidence Vote against Ms May and an early General Election that would see Corbyn enter number 10 heading a minority government with SDP support, a minority government that would need to sort out the Brexit crap if it occurs prior to May 2019 – such an electoral pact would give the SNP an upper hand to press for an IndyRef2, which JC would probably ascent too – however, with a non-Austerity Corbyn in power the Scots Electorate may not be as favourable to Independence had it would be with the Tories still in power, and if said Austerity loving Tories are still in power its back to CMs plan, namely UDI.
God, its complex all this theorising, but had the Elites did more theorising about Brexit from the time the Brexit vote was decided upon, we’d not actually be in this mess – whatever the case, if a democratic majority within Scotland wants independence from Westminster I’m forced to support it, to do otherwise makes me a Unionist, which I’m certainly not.
Chistopher Rogers, It was the case that the declaration of independence for Kosova was proclaimed by the parliament of Kosova, without a referendum of the citizens of Kosova, the citizens may well have agreed with the parliament. In the Scottish case, the citizens of Scotland have spoken through the referendum for continued union with GB. I agree with you that there is nothing wrong with a constitutional assembly of all the interested parties, and as you say “its a Constitutional Assembly that would set out the actual plan, the detail of which the Scottish electorate could vote on” the key here is the Scottish electorate having the final say [through a referendum].
Harry Law,
When it comes to independence, and indeed Federalisms in general, my advice is to not follows the American’s because their Independence was never actually voted upon by the Electorate, i/e., universal male suffrage, so, I’m 100% with you, something is only legitimised in my eyes if a clear majority of all those casting votes say ‘Aye’, which is why, given no restrictions whatsoever were placed upon the EU Ref, the vote stands – a wise government would have placed thresholds, the Tories ain’t wise though, but old Harold Wilson most certainly was.
What on earth is Nicola waiting on???
The planets have aligned & they will not be this way for ever, make a move in the name of god Nicola!!!
Make a move now, be strong & go with your gut, what’s the worst that can happen? We don’t get another bite at it for years, I honestly believe it will go our way this time. For gods sake go for it NOW before it’s too late.
“What on earth is Nicola waiting on???”
A general election so that she can go all “indyref2!” and SNP can strip Labour of votes and effectively prop up the tory party, keeping ‘the cause’ alive and her in a job.
I’m for Indyref2 if that’s what the people of Scotland want, but it won’t happen fairly and will be abused under the current regime.
Fantastic Sir