Accept no substitutes

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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143 comments on “Accept no substitutes

  1. “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?”

    Where lies the legal outrage when the Tory Government tramples all over Scottish Devolution without a popular vote of the people, not one word allowed from our MPs and not one ounce of decency from the failed Secretary of State to do his Job of which his main duty is To Protect Scottish Devolution.

    It’s the old story, Scotland shut up, sit down and get back into that box

    • weegingerdug says:

      Those are not arguments for UDI. Those are arguments to be made in an independence referendum.

      • Terence callachan says:

        You talk of the Scottish population deciding if Scotland should be independent but that allows the 18% of the people who live in Scotland who are English people to vote for England, their country, to continue controlling Scotland.
        England decided the terms of the Brexit referendum and those terms excluded EU citizens living in UK because they would mostly vote to remain in the EU
        Scotland should exclude English people because they mostly vote to remain in UK
        You have raised people’s hopes over the years but this is what will prevent Scottish independence as it did in 2014 and you know it.

        • Shagpile says:

          Sigh, shakes head and asks… are you for real?

          • 52% of Scots voted for independence
            75% of English living in Scotland, voted No

            Like it or not, these are the facts

            • weegingerdug says:

              The way we campaign for an independent Scotland determines the kind of independent Scotland we end up with. You might be happy with an ethnic nationalism which says that some people living legally in Scotland have more rights than others, but don’t imagine that the rest of us are. I don’t want a narrow ethnic nationalist country which demonises those determined not to be “proper” citizens. We have the UK and the Home Office for that sort of thing.

              • Terence callachan says:

                The way we campaign ?
                Get real, there are rules , laws in existence already that determine who can vote in a UK election, we should apply those same rules and laws in Scotland .
                In a UK election ,living n UK is not enough to give you the right to vote.
                Of course for independence we are of course not talking about an election ,nobody will be elected, it’s a referendum so the rules can be set by Scotland.
                One simple straightforward rule should be that England can not vote for England to continue controlling Scotland.
                England is its people, English people anywhere in the world should not be allowed a vote on Scottish independence, that is fair and democratic.
                You refer to rights , but as you know full well ,there are already different rights that people living in Scotland have depending on why they are here what their nationality is and what leave to remain conditions have been set by Westminster, so as things stand right now in Scotland Westminster decides what rights people in Scotland have.
                I’m beginning to wonder about your direction in this issue of Scottish independence because as you also know very well excluding England from voting on Scottish independence does not affect the rights of English people living n Scotland other than to say that on one crucial point, the future of Scotland ,they shall not have a say because their country is England, the country that controls Scotland and it would not be fair or democratic for them to vote for their country to continue controlling Scotland.

                • weegingerdug says:

                  You’re worried about MY direction with regards to Scottish independence?

                  Christ on a fucking bike. Get a grip of yourself.

                  If you don’t like my “direction” – the door is over there ——->
                  Don’t come back.

                  • Heartsupwards says:

                    Wee Ginge, I am pro independence for Scotland. I have been since I was old enough to ask myself what I would bother to vote for. God knows about each of our directions but I’m totally with TM above and I posted so yesterday for you to decide to not allow it through. Does this mean you do not want me or TM to read your blog anymore or is this just a hissyfit? To discredit TM’s (and mine) opinion so vehemently as something Scotland doesn’t want (as if you can actually represent that) and to block my timid acknowledgement of his point is close to breaking my huge respect for the work that you, like other bloggers do. I can only hope that you are simply displaying stress from another source.

        • mogabee says:

          Thank goodness you didn’t mention democracy in your comment…

          • Shagpile says:

            Pot, kettle, black?

            Guid aine… the reality is the State (we’re in).

            I am hugely in favour of independence. Twits, however, do not gain my favour. Patriotic they may be, but they remain twits.

            There are useful idiots, I suppose; I have just not met one yet.

            WGD has stated the reality. Live in the fools paradise if you wish… the consequences of that is simply prolonged dependence. Yet, you’d rather be right than rich? 😉

        • wm says:

          If 18% of people who live in Scotland are English, that means nearly one in five of Scotlands population are English. Where did you get these figures?

          • wm says:

            Anybody who depends (lives) on Scotland should get their vote whether they are English or any other nationality.We all originally came from somewhere.

          • weegingerdug says:

            The figure he gave is wildly inaccurate. According to the most recent census, 8.68% of the population of Scotland was born in England.

          • Macart says:

            It’s a nonsense figure and it’s been corrected on these pages before. As Paul rightly points out the figure is barely above 8% from the last census.

            • wm says:

              8% is more like it, and some who were born in England, were born of Scottish parents. I have relatives who were forced to go to England in the early 1930’s when they were shrinking the steel industry in lanarkshire, a WM move to sreghnthen England’s economy at the expense of Scotland, that is how long WM has been ripping the pish out of us. My relatives ancesters still consider themselves scots.

              • wm says:

                I ment my relatives descendants, just proves we can all make mistakes.

                • Heartsupwards says:

                  I think the 75% of English people in Scotland voting No was an overestimation too. I recall reading, I think in Wings, post ref that it was about 67%. I think this percentage alone tells us that English born people who voted in the referendum need to ask themselves if they are honourably voting for the best thing for Scotland.

  2. Ricky says:

    “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? ”

    Didn’t we join the union without asking the people ?
    As I understand things , the Treaty of 1707 is an international treaty , that can be renegotiated at any time by either party . If this is so , can the SNP renegotiate the Treaty on behalf of the people of Scotland . If the Westminster government refuses to renegotiate , where does that leave the Treaty and Acts of the Union ?

    • Norrie says:

      My thoughts exactly

    • Ealasaid says:

      The Treaty of Union is made up of two Acts of Union, one from the Scottish Parliament and one from the English Parliament of the time. These Acts are the same but each is written in the language and traditions of the respective parliament.

      Generally speaking Acts of Parliament can be changed and amended by the Parliament but these two Acts are bound together in an international Treaty. That means that the Acts cannot be amended unilaterally but only in agreement by the two partners. However as the Acts themselves state the two parliaments that brought about the Treaty of Union were ended by the Treaty itself and replaced by a new parliament of the United Kingdom. Therefore both original partners no longer exist for the Treaty to be amended. It can therefore be considered to be written in stone.

      Our ancestors put some safeguards in the Treaty of Union to protect the sovereignty of Scots, such as our own legal system in which the people’s sovereignty is embedded. Also our own education system which was supposed to ensure that Scottish history was passed down the generations. However over the years British nationalists worked their way onto education boards and many of us got English history rather than Scottish history at school, though the SNP have been correcting that lately.

      Recently there was talk in Westminster by some Unionist MPs of writing a new Treaty of Union for Scotland. Just looking at our current position in Westminster and calls for Independence will tell you that this was not being done for Scotlands benefit but to tie us tighter into the Union for Westminster’s benefit.

      Legally the Treaty of Union is held to be a voluntary Union and as such it can be ended by either side without reference to the other. But this would need the sovereignty of the Scottish people. The Scottish people have already spoken in 2014 and unfortunately voted to remain in the Union. This has to be put right, and so the Scottish people must speak again and vote for Independence.

      • Les Bremner says:

        The Scottish people did not vote to stay in the Union.
        Puting aside the promises and threats which persuaded people to vote No, it was proven that the postal voting was rigged.
        I have said it before and I will say it again, if the process is not made secure we might as well stop now.

    • Shagpile says:

      The parliaments that passed the Acts which ratified The Treaty Of Union no longer exist.

      • Ricky says:

        Technically true but the Scottish parliament was never abolished it was adjourned then reconvened , the English parliament was abolished . Don’t know where that leaves us though , we could try telling England they don’t exist and watch the fall out .

    • Jan Cowan says:

      I thought the Scottish people were very much against the Union. Indeed the Edinburgh “mob” were keen to murder the aristocratic members who went to London to sign the agreement.

      Burns tells all in his work ” A Parcel of Rogues in a Nation”. A parcel = a small number of people who were well paid by Westminster to swing the whole set-up to suit London.

    • Heartsupwards says:

      Well Westminster can take Scotland into wars in our name without asking the people. They can send in soldiers to murder hundreds of thousands of innocent people all in our name no matter how much we protest, while we busily work enough to survive but fill their pockets. A national sit-in may be the required action until they start to listen.

  3. And if we are denied the right to have a referendum, which we almost definitely will be, what then?

    • weegingerdug says:

      We don’t need Westminster’s permission to have a consultative referendum.
      There is also the possibility of having a plebiscite election for Holyrood and turning the next Holyrood elections into an effective referendum.

      • Heilan Coo says:

        I like the idea of a plebiscite election but do worry about the implications of single transferable vote in such a scenario. If it were FPTP then it’d be simple but with STV I’d envisage both sides desperately extrapolating different quantitative stats that suit their narrative.

        “Ah, ye didnae really win cuz we got X list MSPs, so the real victory is ours”

        Blah, ad nauseam…

        • Illy says:

          50%+1 Seats in Hollyrood elected on a mandate of “Pure Take Scotland Independent” is the only one that actually matters.

          • Heilan Coo says:

            There are what? 73 constituencies in Scotland, thus 73 constituency MSPs, and 56 list MPs – how does that break down at the moment? (rhetorical question, I’ll google it in a min) do we say it’s based on constituency MPs only or as you suggest, bums on seats. The latter worries me (as we’ll end up having a massive stooshie about what constitutes a win)…

      • *Every* election thereafter should become a referendum.

  4. Big Jock says:

    You might be right. Although it’s never actually been tested!

    However lets say that we have a consultative referendum, which is ignored by WM. What then do we do if yes wins? Do we end up like Catalonia? Or do we look to dissolve the union, or do we declare UDI.

    I think if we do nothing but complain, then nothing changes and Scotland will disappear along with it’s parliament. You are correct we will ask the people first, but it won’t be an Edinburgh agreement. We are heading for UDI or breaking the union after the consultative referendum. We can’t shy away from that so we must look at the mechanisms of union and or possible UDI following a Catalonia style victory.

    I think you will find that the SNP are already investigating this with their legal experts, as they know that May won’t agree to a binding referendum. There is no velvet divorce when it comes to the Brits. They don’t allow grown up civilised negotiations. There is going to be a physical struggle at some stage. This is not going to be as easy as just asking the people.

    • weegingerdug says:

      A declaration of independence after a referendum in which a majority have voted for independence is an entirely different matter from a declaration of independence without a referendum.

      • The referendum should be on rescinding the Treaty of Union of the two Parliaments.

        • Marconatrix says:

          But, and I must ask again, is the present Scottish Parliament truly the original pre-Union Scottish P. re-established, as was IIRC declared when it first sat, or OTOH is it simply the creature of, and subordinate to, WM?

          What is the legal opinion on this? Is it possible to have an independent legal opinion even??

        • I agree William, I believe that we must approach this as equal partners and so we must change the terminology used. In asking people if they want to be independent we are telling them that at present they are dependent. In doing this we make it more difficult to convince people that Scotland is not too wee, too poor, too stupid to stand among other nations as an equal.

    • Andy Anderson says:

      I feel that there may indeed be a struggle which will depend on the intransigence of London. I also feel that if we get a high turnout in our referendum with say 60% for YES then in international law we can ignore London. They will talk to us eventually. As a positive net contributor to the UK’s bottom line a struggle it may be as they will loose much.

      However I hope level heads would prevail and we, Scotland and England can be friends. That we can negotiate our divorce peacefully. Fingers crossed.

    • Cubby says:

      I don’t think we should equate Scotlands position with Catalonia. I think Catalonia is more like Wales. They do not have a treaty of Union. The law and the vote are both tools we use for independence. I certainly do not agree with a UDI based on breaking of the Treaty but the Treaty is a legal ace if we need it after a vote.

    • Cubby says:

      They broke the Edinburgh agreement with the vow and then broke the vow as well. We would be daft to let them anywhere near any future referendum they cannot be trusted. They have proven that they do not play fair. They are not English gentlemen. That is a myth.

      We get a majority vote then back it up with the law and that includes the treaty of Union. In my opinion that should be before we leave the EU not for the purposes of staying in the EU but to get the EU citizen vote and also the protection of the EU as all living in Scotland are still EU citizens. We are not Catalonia. The law can be our friend.

  5. […] Wee Ginger Dug Accept no substitutes In recent days there’s been a suggestion on social media that there’s some wizzard […]

  6. Big Jock says:

    Ricky – I agree the Union was authorised without the peoples consent. So there is justification in ending it with a consultative referendum, whether the Yoons boycott it or not!

  7. what constitutes a majority?

  8. Big Jock says:

    Wee Ginger 1.55-I agree, however what if yes wins by say 70% but only 65% of people actually vote?

    • weegingerdug says:

      Then that’s a mandate for independence. Not voting doesn’t count. It doesn’t count as a vote for independence, and it doesn’t count as a vote against.

      • Robert Harrison says:

        Don’t forget the britnats put none voters as instant nos in the 79 devolution referendum they probably did the same trick in 2014 for all we know.

  9. I rather suspect, Paul, that no matter what size the majority is in favour of independence, the George Square loyalist neanderthals will never accept its legitimacy because they are BritNat fundamentalists, a quasi-military cult that believes that we should accept their way or the highway.

    Why? Because they are exceptional. Because they arapeepul. The only democracy they believe in is the one where their da’s bigger than your da. They’ll never accept indy Scotland.

  10. how about 99% yes on 45% turnout ?

    • semplemac says:

      I would suggest that 51% of the people who vote is a majority – if you didnae vote then you don’t mind the result and cannae be complaining if it isnae what you wanted 🙂

  11. Alan says:

    Fastest route to independence might be allowing English Brexiters the vote given how many would choose keeping Brexit over keeping the UK together. How could the resist the opportunity of getting rid of the whinging Jocks, stupid Paddies, in addition to the oppressive Eurocrats? I joke but seriously, Scottish independence will be won by English nationalism.

  12. Big Jock says:

    2.00pm – The argument in Catalonia was that 50% of the eligible voters didn’t vote yes due to low turnout. So the result was ignored! We are back to looking at legal ways to dissolve the Union or UDI. WM will ignore the result in a consultative referendum.

    • weegingerdug says:

      This isn’t an article about what happens after a consultative referendum though is it. It’s an article about why we can’t achieve independence without a referendum and by relying on legalistic arguments.

      • Cubby says:

        I agree with the article but that does not mean the law cannot subsequently be an important positive factor for independence. The exact opposite of Catalonia.

    • Reid says:

      This has happened before. The last referendum had a 40% turnout and voted for independence. Westminster said the turnout wasn’t high enough so therefore wasn’t valid.
      The English parliament will always change the rules to favour themselves.

  13. Tend to agree with big jock sadly

  14. TSD says:

    After the Supreme Court session in July, I think we might have a Holyrood election which will be based on a majority of votes for the SNP will be a vote for independence, rather than a referendum per se.

  15. Agree wee ginger dug, referendum must come first but I’m not convinced campaigning will, in the end, have any impact on the result. The referendum will be denied, we’ll have a consultative referendum and perhaps half of the population will not vote.

    • weegingerdug says:

      That’s why I’ve always tended to prefer a plebiscite election for Holyrood. The anti-independence parties can’t boycot it and it doesn’t require Westminster’s consent.

      • Andy Anderson says:

        Agreed. If we have the referendum and we win with a good majority (say 51.9% just like Brexit, only joking) and the Brit Nats say Pee Off then the Scottish Government must go straight to a Scottish General Election as you suggest.

        • Illy says:

          That’s not what’s being suggested.

          If we have a referendum, then we win that, we tell Westminster to piss off.

          If we can’t get a referendum, for whatever reason, we force a Holyrood election, and the SNP stand on a platform of “voting for us *is* voting for independence”.

          No need to do both, either one of those alone is a mandate.

      • Iain Bruce says:

        So how’s about a legal and political pincer movement. Scottish Government gives Notice of Intent to dissolve the Union, withdraws it’s MPs from Westminster to form the core of a new National Convention in Edinburgh with MSPs, MEPs, Civic Scotland including reps from the Yes Campaign.
        This Convention develops a draft Constitution which is then put to the vote. This side steps the issue of the No More Referendum Party and its death eaters in the MSM from engineering a low turnout impacting on credibility. On the approval of the draft Constitution, the Scottish people have expressed their will and the Treaty of Union falls.

  16. Big Jock says:

    TSD – That might be a solution. If the SNP called an election on a ticket of independence, and the Greens stood down ,then we might just get 51%. Bear in mind that winning by any less than 51% of the popular vote could be challenged or ignored though!

    • Illy says:

      Meh. We get 50%+1 seats on the SNP standing on a platform of “just independence for Scotland, nothing else”, we have a mandate. The unionists set up the rules, they can live with the results.

  17. Liz g says:

    Have seen this Theory doing the rounds too Paul and was hoping that you or Wings would post something to clear it up…
    Can I also just add that because, the Scottish people are, Sovereign then there is NO Court and No Parliament anywhere that has the right to make that decision for them.
    Much as I want the 1707 Treaty struck down, my Sovereignty comes first so…. How Dare any Court or Parliament act without their Sovereigns explicit instructions,and THAT’S the real legal position…..
    Sovereignty is for the Sovereigns and thats the people and only the people!

  18. Big Jock says:

    I think the consensus on hear is for the SNP to stand down following the Supreme Court ruling in favour of WM, regards the continuity bill. I am not sure that they have this in mind though. Or are they going to keep requesting a section 30 until October, and then call the election based on independence?

    • Liz g says:

      I don’t want the SNP to step down,and I don’t think they are minded to ….Yet..
      The point of turning a Holyrood and/or a Westminster election into a vote to dissolve the 1707 Treaty is that it is a means of getting the instruction to do so from the Scottish people, that Westminster cannot prevent ,try to boycott or introduce a super majority for!
      Therefore by hook or by crook we WILL have our vote on the subject…
      The ball is really in Westminsters court on this, do they want it to happen in a referendum or an election?
      But that it is going to happen is not theirs to choose.

  19. 100%YES says:

    I don’t remember ever given my consent to join the Union or the Scottish people who are supposed to be sovereign given it in 1707. And a big thanks Paul for Signing my map in Edinburgh it looks great.

    • Liz g says:

      The people who were charged with the care of our Sovereignty in 1707 signed us up.
      And in 2014 the Sovereign People of Scotland approved,that the Treaty be kept.
      So we are where we are!

      But that doesn’t mean we have to keep on approving..

  20. John Thomson says:

    Spoil sport we can but dream as the long road lies in front

  21. With a heavy heart, I suppose I must agree with you, Paul. It seems it doesn’t matter that WM drives a coach & horses through the Treaty of Union, the Sewel Convention, the Devolution Agreement (any or all of the above) we are just stuck with it, there’s nothing we can do except keep slogging away as we do every day. It’s depressing and disheartening that our righteous anger can achieve so little and that WM can break its own laws at will and no-one can do a damned thing about it. I just hope that the Scottish Government has something up its sleeve of which we wot not – the alternative doesn’t bear thinking about.

    • Liz g says:

      Well I wouldn’t say there’s nothing we can do
      That might have been true before we could all communicate and were mibbi wondering if we were the only ones who saw this Union as a bad arrangement for Scotland.
      But I think what Paul is trying to point out is a bit like……
      That although you need the law to get married and the law is how you end a marriage.
      The Law itself doesn’t come along and point out that the grounds for divorcing have clearly been met therefore the Court is now ending the marriage.
      The decision to put up with the breaking of the marriage vows or not, is for the people in the marriage…. It is them who instruct a lawyer to ask the Court to end the legal arrangements.
      Just as it is for us to ask our representatives to have the Union ended

    • Illy says:

      Well, when you’re fighting the folks who control your armed forces, there’s never much you can do that’s productive.

      And we aren’t as violent as the Irish, or Westminster would be in flames, not GSoA.

  22. Robert Louis says:

    A parliamentary vote is won or lost on number of seats, not on percentage vote share.

  23. Macart says:

    As I said last thread, it’s an appealing thought and just for the reasons you state. Had a look at the most recent myself for five minutes and thought… oh let it be. After years of taking what’s been dished out by Westminster’s parties and system, I’d say an understandable and all too human reaction.

    But there is only one way to win this debate and one way Scotland will move forward as a population. The majority of the electorate agrees with the principle that the population of a nation has the right to govern itself.

    Again, that’s not to say the upcoming case won’t prove pivotal in the debate this summer. It will. As I’ve also said on last thread, I believe legal technicality isn’t why this case is important and why its very enactment was an epic fail by Westminster government. Win, lose or draw, UKgov really lost the argument the very second they took Scotland’s parliament and people to court. And by argument, I mean the idea of union/unity or partnership. They are using their governmental and legal system to force a partner into doing a thing against their popular and mandated will.

    It’s yet another example of the democratic deficit in action. Something we’ve seen quite a bit of in the past week or so.

    You can’t force a population, a people, a person and win their trust, their loyalty or their partnership. If you impose your will on others, you will however ensure the complete opposite of that becomes your reward.

  24. Luigi says:

    Here’s the rub. The bottom line, as WGD implies, is that we need the majority of the population behind us.

    When more than 50% of the electorate support independence, anything can happen.

    To try and grab independence without the people behind us would be suicide.

    No majority no independence. Bottom line.

  25. Big Jock says:

    I think getting 51% of the vote in an election is far easier than trying to get 51% of the actual electorate to vote Yes in a consultative referendum. If I was a strategist I would call a Scottish election on the principal that WM had challenged the authority of Holyrood

  26. fynesider2 says:

    At a recent public meeting in Lochgilphead I put the SC case & commensurate Act of Union ‘fall-out’ to Mike Russell.

    His response appeared to indicate that the SG might indeed prefer that the SC rule in favour of WM….(!)

  27. Anne Martin says:

    May will never grant another Section 30 and WM will never accept the result of an advisory referendum (regardless of the fact that the EU ref was advisory), so we are left with only one option then; a Scottish Election on an independence ticket.

  28. fynesider2 says:

    I think I’ll go with Mike’s option… I trust him implicitly… In addition he has a “brain the size of a planet” (without being asked to open/close doors)

    • Ealasaid says:

      I think his position would be that that if the Supreme court, a mainly english court, over-ruled the Scottish Parliament, the source of Scottish law, on Scottish law issue that this would breach the Treaty of Union.

      The Treaty of Union enshrines Scottish Law ‘in perpetuity’ (= forever). It cannot be over-ruled by English law. I noted that when the Supreme Court came to Scotland in recent years that it was forbidden by our legal establishment from sitting in any Scottish court and had to sit in a town hall.

      I imagine if this breach happened it would lead to an international court.

  29. Douglas says:

    I (sadly) agree with Paul.

    Attempting a legal trick as a short cut a referendum would be a huge mistake.

    However, I do think it could make a little bit of a difference to attitudes if the constitution is clearly broken and the situation is reframed.

    If it can be shown that the treaty of union has been broken and no is longer valid then the grown up approach is to say something like:

    ‘The treaty of union is broken.
    To maintain stability, we will continue to operate within the previous arrangements as a temporary measure until the will of the Scottish people is determined by plebiscite’.

    Then simply ask the big question

    ‘Should Scotland be an independent country?’

    Probably wouldn’t be fair to have the preamble on the ballot paper (too many would cry foul) but if some of the background music made it clear that the union was already broken it might help a bit.

    Polls have shown that part of our problem is inertia. If Scotland were already an independent country, few would be rushing to shackle ourselves in the U.K.

    I certainly would not have this as the centre piece (there are far too many other good reasons to be independent!) but it might help overcome the inertia of some if they realise that there really is no status quo. A No vote (God forbid) would mean renegotiating a treaty of union as equal parties rather than supplicants; the treaty would need to be ratified by a vote when the details were known.

    Just a thought.

    Certainly no magic UDI but there may be some ammunition in this yet.

    • Illy says:

      “No vote would mean renegotiating a treaty of union as equal parties”

      OOF!

      That’s nowhere near as bad as you make out. If that’s the case, then suddenly Hollyrood holds all the cards, as the parliament of Scotland, and suddenly has actual teeth.

      Just imagine the conversation: “So, the Treaty of Union is gone, but we’ve been asked to negotiate a new one. To start with, we want… Take it or leave it.”

      • Kangaroo says:

        Thats exactly correct. Once the Treaty is broken, legally or otherwise, any vote would have to be reframed as “Do you want to enter a Treaty with the Kingdom of England?”

        and then a whole lot of supplementary questions such as…
        Should it include Defence, tax, health services etc

        Not simple once Humpty falls off the wall…too late IMHO.

        Whilst politically it would be nice to end it with the same question as 2014, I would consider the above method as just as legitimate.

  30. ANY referendum in Scotland (including the Brexit one btw) is binding, as the people are sovereign.

  31. Cubby says:

    Not sure the British Nationalists will respect any subsequent referendum result. They don’t respect the devolution referendum of 1997 74% yes on. 60% turnout.

    We need to use politics, votes and the law.

    The British Nationalists do not play fair. They will not play fair again. We should not expect them to be gentlemen after a yes vote.

  32. What Paul and Others say…
    There is no other way.

  33. donald6 says:

    I can’t be bothered listing all the articles on the so called Treaty that have been broken and signed by only one percent of the Scottish electorate against their wishes. Remember who you are dealing with. It was a takeover, not a “Union”.

  34. Craig P says:

    >> seeking a majority for independence in a national ballot.

    And after winning that… that’s when things will get *really* interesting.

  35. Sandy Wito says:

    Its a shame there’s no legal magic bullet but you’re absolutely right Paul. However, just imagine if we did find ourselves independent overnight and it was the Unionists that had to demand a referendum and make a positive case to re-join the United Kingdom…

    • Illy says:

      Actually…

      That’s probably the best argument for pushing the legal case that the Treaty of Union has been broken by Westminster.

      • My fear is that even if we claim the Treaty of Union is broken by westminster, it would only be we YESSERS that would even know about it. The general public whose support we need would still be kept entirely in the dark, and we would still be left without majority agreement, therfore WM would continue to just ignore us and continue to bind us ever tighter in this blasted union.

  36. So this leads to us needing a ‘legal’ referendum. As the UKGov won’t grant another one, what are the options? An advisory one? Risk the slim pro-indy majority in the ScotParl and go for a Holyrood election? Wait until the next GE where we’ve only once (I think) got more than half the seat? It’s a dim picture with no one in authority telling us how to make it happen. Hence the dream of wizards.

    • Ealasaid says:

      There are plenty of good lawyers in the SNP. I believe they are playing their cards close to their chests. But the Supreme Court ruling will be very important.

    • SNP won more than half the seats in GE 2015 & GE 2017. Twice. I see no reason why we can’t make it a hat-trick standing on an independence ticket. It can be done at any future GE or SE.

  37. Cubby says:

    I see no reason why the SNP cannot formally put down markers at Westminster stating where the Treaty has been violated. This does not mean declaring UDI. Just leave it hanging. See what response if any there is from Westminster. Nothing to lose from this but potentially useful in the future. Both during a referendum and after.

  38. Iona says:

    Agreed! I don’t just want Scotland to be independent. I want it to be successfully independent. To do that, I believe, it must carry a sizable percentage of the population.

  39. Big Jock says:

    Supreme Court ruling needs to be given before the SNP make their next move.

    I like the idea of a Scottish GE. The SNP machine is pretty good at winning elections. We would be asking Labour and Lib supporters to lend their vote to get us over 51%. I reckon there are only 30% hard line yoons in Scotland

  40. Cubby says:

    We live in a country where people who don’t believe Scotland is a country get a vote on whether it should be an independent country. All the people living In Scotland should get the vote. Easy to agree with. But these people don’t believe they live in Scotland anyway. They believe they live in North Britain or greater England. I get asked this question. Looking for thoughts other than they are wrong Scotland is a country.

    We live in one messed up UK.

  41. I read every article that the Dug writes and I think they’re fantastic. I’m not much given to writing comments about how an article is great because that would get very boring for everyone involved.

    This piece chimes with what I’ve been seeing and responding to on Twitter recently. I’m 66 and have been following the Independence/Home Rule debate for at least 50 years and over the course of that I’ve seen several attempts to bring legal cases in terms of breaches of the Treaty of Union. These were breaches which had actually occurred, for example the Poll Tax which breached the condition about differential taxation.

    In every case the courts have thrown the cases out without listening to the arguments as they simply aren’t prepared to countenance them.

    I can’t see any reason to suppose that they’ll change their view.

  42. Movy says:

    Very interesting article and a very interesting discussion. I do think we must wait for the SC ruling and take it from there. Having seen the SNP in action recently I have confidence that they know what they’re doing. I find what Ealasaid posted at 4.52 (and elsewhere) particularly encouraging (and you, too, WGD as always!).

  43. Big Jock says:

    Remember Salmond after losing the referendum in 2014:” A referendum is not the only way to achieve independence”. What could he have meant. Well I think he hinted at a Scottish election based on independence.

    He described 2014 as a dry run . He never actually thought they could get 45%. It’s a pity we have to wait until July for the SP court ruling. It loses us another month.

    At the moment most of us are pretty worried about how we beat these zombies. The cards always seem to be with WM. But perhaps the Tories have underestimated the regard Scots have for their parliament. We will not stand by and let them do this and neither will the SNP.

  44. Sorry Paul I hate saying it but I disagree with you. I think it’s is only logical to have a look at the treaty and see if there is a breach. Yes in an ideal situation we would have a legit referendum with a polite campaign from both sides but I think most of us are coming to the conclusion it ain’t gonna happen. We will ask for a section 30 and will be refused. We can hold a Holyrood sanctioned referendum it will be boycotted then ignored. We then force a Holyrood election these are the 3 scenarios. 1, we win a majority but under 50+1 of total electorate so are ignored. 2, we win a majority with 50+% of votes cast but most unionists stay away so are ignored.3, we smash both the majority of parliament and votes cast in a high turn out and then we are ignored because Holyrood doesn’t have the competence is what the argument will be then it’s in the courts. I personally don’t want UDI but we are gony need an ejector button ready if we need to press it. The defenders of the union are now union denier’s there is not a low they won’t go to. I actually think it’s good that people are now asking these questions and looking through the articles because I think we are going to need it

    • Liz g says:

      Well Kennysmith
      Don’t forget that we have a wee wumin who is ment to be the protector of the Sovereignty of the Scots
      Mibbi we should ask her to do her bloody job and defend our vote and remind her if she doesn’t she is fired???
      Involving auld lizzy Windsor will soon make the establishment pay attention…..
      Remember we are no prepared to be ignored anymore…
      You will probably find that even only the suggestion that she will be pulled in to the debate, will put a fire under the UK establishment

      And there’s always that other Lady…
      Who is the keeper of the Great Seal of Scotland..
      If Nicola withholds that… then no Scottish laws can be given royal assent.
      We are not powerless in all of this we just need representatives prepared to use our power and to get behind them when they do

      • Macart says:

        She’s oan it. 🙂

      • When I said all of that before I don’t mean just UDI straight off the bat. Yes we have to exhaust other options but that should not stop us looking for loopholes in the articles. Someone can put me right but as far as I know there is no equivalent of an article 50 so a breach would probably be have to be proved to have it withdrawn. I like Paul’s optimisim about boycotted votes won’t count but London will feel bold after Madrid’s antics, yes I know Scotland isn’t in the same position as Catalonia but with Mundell and Davidson running about the media will push it’s a coup against a silent majority

        • Liz g says:

          Kennysmith I totally agree,there is no harm in exploring all aspects of the Treaty and Acts that we were all born under…
          It’s online…. But I warn you its a bit dry,and talks a lot about salt.
          Anyhoo its often referred to as being like a Marriage…
          So with that in mind.
          …. When a Lawful / Legal spouse breaks the terms and Conditions of the Legal/Lawful Union the other partner has Legal/Lawful grounds to end the Union that was entered into…..
          But they are not compelled by law to do so…
          Also remember that when the Marriage ends, said spouse doesn’t then become an Illegal/Unlawful spouse…
          If you do read the Treaty try thinking of it in that way….

          Then add the Sovereignty stuff in…
          Which, the best way I can think of to describing is…

          Like a Trinity, There is Legal Sovereignty,Political Sovereignty and Popular Sovereignty each needs to be present to have “Actual” Sovereignty …. But Political and Legal Sovereignty can and will try to trundle along as if Popular Sovereignty is taken care of,when it’s really being manipulated….
          But Popular Sovereignty is the most important and most powerful one..
          And the difference now between Scotland and England is that we “almost” know this,and,we have the Legal documents,and the Politicians to demonstrate its truth… All we need is the Popular bit…. and we are good to go..
          But it Must be a Popular decision..
          Hope that helps..

          • Liz g says:

            Oh and don’t forget that “PURE” Popular Sovereignty… Is mob rule…
            The People need the Legal and Political parts, otherwise there is no Popular Sovereignty… Just might means right…

  45. markrussell20085017 says:

    Westminster cannot and will not tolerate the idea of an independent Scotland, especially one with EU membership, as Brexit (shambles as it is) becomes completely unviable without Scotland remaining in the Union. High stakes in a game of extreme risk – particularly for those who have expectations for their investments in the process. Yes, it would be good to have a peaceful transition, but regrettably, that will not happen. Blood, sweat and tears more like.

    As Akela says “be prepared.

  46. colin mccartney says:

    For once Paul, I disagree.
    When I was young ( we are talking the early 70’s here ) the perceived thought was that a majority of Scots MP’s at Westminster was the trigger for independence, even Thatcher agreed, no referendum as a follow up, just a majority under the awful first past the post system.
    Of course that was because they never thought that would happen, but it did, and strangely wasn’t challenged.
    Whats the point of a treaty when if the terms are broken they aren’t challenged? We deride Trump on pulling out of Paris Climate change or the Iranian Nuclear treaty but sit meekly back when the treaty of Union is trashed time and time again through the centuries. Other treaties from centuries past are still respected and adhered too all around Europe, so for once, age doesn’t matter. Perhaps, if you would consider putting it up on your blog for folk to examine, then we would have a clearer idea of what the legal challenges could, or could not be?

    • weegingerdug says:

      Read the article again. I don’t say that breaches of the Treaty of Union should not be challenged. I don’t say that we shouldn’t shout about them from the rooftops. They are all powerful arguments to be deployed during a future independence referendum. The point however is that we cannot declare independence without a clear democratic mandate to do so – and the only way we get that is through the ballot box and by achieving an independence vote.

      • Nobody is arguing your wrong mate, ballot box is best of course. Yes I know we can’t keep comparing us to Catalonia but any referendum without a section 30 will be boycotted and ignored as illegal. Then if we do secure a defacto yes result at Holyrood which is still a big ask because of the way it’s set up do you think it’s beyond Westminster to either shut it down or order fresh elections? Nobody is looking for an argument this isn’t infighting it’s about being prepared because there is no way on god’s green earth they are ever gony let us just walk off with a friendly wave and a friend request on facetube!! No matter how we get a result it will be put through the courts unless we have a section 30.

      • colin mccartney says:

        All well and good, but you might have noticed there is a small problem with the ballot box !!!!
        Win 56 of 59 of the seats under their rules at a general election ( first past the post ) and suddenly you need a 50% of the vote + 1 majority.
        Win in a referendum with 62% and every council area ( EU in this case ) and your only a part of the UK,
        Win in a referendum with 51.6% (1979 ) and you need a percentage of the entire voting population.
        Will the next indyref exclude the votes of anyone who is a member of the SNP or worse still has a wee ginger dug?
        Thats why people are now looking at the other options.
        Any number of countries have become independent by electing their own local parliament under their own rules, and simply walking away.
        The ballot box approach isn’t as perfect as many make out, as there is always that 30% to 40% who never vote, and, depending on what side you are on, either didn’t vote because they were for/against what the winner/loser stood for.

  47. emegra says:

    There is one possible technicality, maybe if we piss them off enough our friends south of the border will do it for us

    https://campaignforenglishindependence.blogspot.com/

    Graeme

  48. If it’s a GE we use to get the mandate, EU citizens can’t vote…

  49. mogabee says:

    Why are folk getting all uptight about things that haven’t happened yet? Save all your fighting talk for when it’s needed, persuading the undecided. It won’t be like last time, we have to make folk aware of the dangers if we stay!

    Everyone’s a lawyer it seems. 😀 😀 😀

  50. chicmac says:

    You are absolutely correct Paul. An absolute mandate must be demonstrated by majority of the electorate. Either by a civilized independence referendum, or if London will not ‘allow’ that or its legitimacy, by a general election proxy referendum for independence negotiations with the rUK as the only manifesto pledge of pro indy parties.

    Hopefully it will not come to the latter, it all depends how desperate the rUK elite are to hold on to our resources and indeed whether they judge that their own electorate would accept such behaviour.

    It is also the case that extending national ‘Supreme’ court remits to adjudicate on matters of self determination, even if that right to self determination of a ‘people’ has been ostensibly transferred to an external body by agreement, has, as yet, not been tested in the only court which has the purview to do so, the UN’s judicial body, the ICJ.

    Canada, Spain and the UK (by dint of the 1998 Scotland Act small print which no one who voted in the devo. ref. read) can make such a claim but the very notion that self determination of a people can be determined by other peoples is, of course, itself an absurdity.

    The nearest we have come to a formal adjudication is in the case of Kosovo, which ironically the Serbs themselves took to the UN/ICJ. In that instance there was no referendum, just a UDI, but still the ICJ ruled that Kosovans had done nothing illegal in declaring UDI.

    Kosovo is now, with the aid of thousands of EU civil servants, at the preparatory stage of applying for EU membership and has de facto agreements already with many EU institutions including the ECB.

    Incidentally, the UK was one of the very first to recognise Kosovo, long before the ICJ adjudication.

    The UK would not only need to leave the EU and the ECHR but also leave the UN’s treaty the ICCPR which would effectively leave them as becoming the proud member of a small handful of rogue states in the World.

    However, they may yet come to the conclusion that pariah state status is still better than allowing Scotland its freedom.

    My expectation is that that is an insanity too far for the rUK and that they will let Scotland go in the end.

  51. Andy Anderson says:

    Today’s National newspaper highlights a UK wide survey of opinion which shows that most of the Leavers would rather accept a break up of the UK than stop Brexit. As we know from recent events in ‘the House’ most MP’s are not at all linked into the wishes and desires of the people that voted them there (our Scottish Unionist MP’s are on the whole a disgrace, but not all). Perhaps this predominant English mood will assist us a little in our cause when the critical time of the divorce process gets underway,

    I have an English friend who has for years believed we ‘Jocks should just piss off and get independence’. This is his humour, he is in no way anti Scottish he just wants English independence. So there seems to be an undercurrent of feeling about divorce, hidden though it is.

    Reading Pauls article and all of your comments I think that we all agree this:
    That any breach of the 1707 and 1746 treaties should be highlighted to the media and to the MP’s in Westminster and MSP’s at Holyrood. This would be background fodder for the campaign.
    That we will have a referendum whether London recognises it or not. If we win and a stushie takes place with those down the road then we hold a Scottish GE and make Indepence the only issue. We could go straight for the Scottish GE but I feel we need the referendum first and then see what happens.

    Thanks everyone for a great on line conversation.

  52. Craig P says:

    We must remember when it comes to legal arguments the unionists have a pretty powerful one – in 2014 the people of Scotland already exercised their right to self determination, and voluntarily chose to surrender it.

    That doesn’t mean we’ve done so for ever – but it does mean that for now, the ball is in Westminster’s court. I’m not sure what amnesiac elderly No voters took to forget the lessons of the 1980s, but No explicitly gave the UK government permission to do what they like with us.

    They could have come up with a programme to strengthen the union but instead, through hubris and condescension they have fulfilled the role almost perfectly as far as a supporter of independence is concerned.

    And there is more disrespect to come. That is why Sturgeon holds off. The worst is yet to come – and soft Nos need to experience the worst before they get woke.

    • Andy Anderson says:

      I agree Craig. If Westminster had via the Smith Commission given us a good whack of devolution, as promised before the 2014 vote then the NO voters would have got what they wanted and the fight for full independence would be so much harder than it is now. It would be a totally different landscape than it is now.

    • Andy Anderson says:

      I don’t know if you have picked up from the better print media but the business pundits think we are in for a hard Brexit or a crash out. Lots of examples already of negative effects on business.

      • Macart says:

        It doesn’t look good tbs Andy. Right now there’s a fag paper between a bad brexit and a calamitous one in terms of the government approach.

    • Even the Independent is saying that a deal on EU citizens has been agreed. I must have missed that one.
      The UK is kicking EU citizens out of the UK as I type, even if married to UK citizens, worked here for decades, and have UK born kids.
      Am I missing something? don’t think so.
      The fate of our Brit migrant Silver Surfers in Europe, their Health Care, residency, ownership of property, and so on, are still to be decided.
      No idea what future arrangements on work travel and retirement in Europe are.
      And then there is Gibraltar, and Scotland voting remain.
      England is in total denial.
      No deal now looks the most likely; there is simply no time to negotiate even the Baddest Deal.
      The City will make a killing.

  53. Scotland04 says:

    Macart – Nothing has been achieved so far and that is the bare truth. What concerns me is us allowing WM to dictate the timetable on independence. First we wait for this then we wait for that. I think once we get the SC ruling in July then the SNP should dissolve the parliament and call an election in September. There is a danger that the Tories call an election in September before we do anything and we are forced to shelve our plans again. With the caveat being that we could use the GE as an independence referendum in Scotland!

  54. Toxidrome says:

    No, UDI will never be a good idea, despite Thatcher herself having set a majority of Scottish MPs as the benchmark. That doesn’t prevent it from being infuriating that Scots Law (entirely separate from English law of course) is likely to be overruled by a UK ‘Supreme’ court.

  55. Craig P says:

    There’s no reasoning with Tom Gallagher. He is ‘afflicted’.

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