In recent days there’s been a suggestion on social media that there’s some wizzard wheeze that means that Scotland can legally unchain itself from Westminster rule and leap free in a single bound. This kind of thing surfaces pretty often amongst certain circles within the Scottish independence movement. This time the claim is that because the Scottish Parliament’s EU Continuity Bill has been referred to the UK Supreme Court, if the UK Supreme Court finds against the Scottish Parliament, as seems likely, this will count as a breach of the Treaty of Union of 1707 as the independence of Scots Law is guaranteed by the Treaty and the UK Supreme Court can’t overrule Scots Law. And that in turn, according to the claim, means that the Treaty of Union is null and void and we’re independent already without having to do anything more about it.
Sadly it’s not true. Much as those of us who yearn for independence would like it to be so, there is no legalistic trick to becoming independent, there is no magic bullet, no incantation or spell chanted in a court of law. There is only the long hard slog of persuading people, talking to people, campaigning, working our wee socks off, and seeking a majority for independence in a national ballot. That’s the only way in which Scotland will become independent, when the people of Scotland clearly and unequivocally state through the ballot box that a majority of the electorate want independence. There are no short cuts. There is no clever clever legal trick.
There is a very broad strain of these legalistic arguments within the Scottish independence movement. They arise because of the unique way in which Scotland ended up as a part of the UK. Unlike Wales or Ireland, which were conquered, Scotland entered the UK, indeed helped to create the UK, via an international treaty between two independent states – the Kingdom of Scotland and the Kingdom of England together with its appurtenances and possessions. This history means that Scots have a very strong sense that we are a partner in a union, a sense which is clearly not shared by the British Government. The feeling is that if we are a partner, then we have rights and when those rights are breached then the basis for the union lies undone. But the reality is that the campaign for Scottish independence isn’t a legal campaign. It’s a political campaign. And we will only win Scottish independence by winning the political argument.
These legalist claims are the independence movement equivalent of wishing for a huge lottery win to solve all your financial issues instead of having to go to work every day to earn money to pay down your credit card. It’s wishful thinking. It’s a fantasy. And fundamentally it’s a distraction from the real work we need to do.
However even if it were true that the Treaty of Union lies undone by a decision of the Supreme Court to negate a bill passed by the Scottish Parliament, those who’ve been making the claim on social media themselves concede that the Supreme Court decision wouldn’t by itself make Scotland independent. What it would do, according to those making the claim, would be to give the Scottish Parliament the legal right to declare UDI. The chances of that happening are so close to zero as makes no practical difference. The Scottish Parliament will only declare Scottish independence when it has a political mandate to do so. The only way that the Scottish Parliament can have a mandate for independence is when the people of Scotland are expressly asked via the ballot box to give their view on the matter, and a majority opt for independence.
This brings us to another but related issue. Let’s accept for the sake of argument that it is possible to make some legal claim that demontrates that the Treaty of Union is null and void. The whole basis of these legalistic claims to Scottish independence is that in Scotland it’s the people who are sovereign. So is it not a bit contradictory to claim that Scotland can become independent without actually asking the people? Where lies the sovereignty of the Scottish people if independence is imposed as a result of a legal decision and is not the outcome of a popular vote?
Even if the Scottish Parliament was prepared to make a declaration of UDI, something which would negate decades of SNP strategy, UDI would be the worst possible birth of an independent Scotland. We saw the violence of the far-right British nationalist bigots in George Square after the independence referendum. A declaration of UDI would run the risk of converting that fringe into a mass campaign of organised violence. It would run the risk of the involvement of the British armed forces, and a violent response in reply. That’s not something that any sensible person should want.
There would also be considerable disquiet amongst that substantial part of the Scottish population which doesn’t support independence because they would feel that there is no democratic justification for independence, that their rights have been trampled on, that independence was being declared without the consent of a majority of the Scottish population. They would not recognise the legitimacy of the new state, and it’s highly unlikely that the Westminster Parliament would either. If Westminster doesn’t recognise the newly declared independent Scotland, the chances are that no other state would either.
Talking about clever legal tricks on social media is all well and good, it might make us feel better and rouse our righteous indignation, but it’s not going to get us any closer to an independent Scotland. In fact it risks damaging our cause because it makes us appear as fantasists and conspiracy theorists. That’s not a good look, and it doesn’t help to bring undecided people over to our side. It doesn’t make independence seem credible and realistic.
The only way in which we can achieve independence is when everyone in Scotland accepts the legitimacy of independence, and that means those people who are opposed to independence as well as those of us who currently believe in it. There is only one way in which that can be achieved, and that’s through the ballot box. There are no short cuts. Let’s concentrate on the hard work, the real work, of achieving independence. That’s only going to happen because of a vote in which the majority declare support for independence. Accept no substitutes.
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