There’s a very interesting, thoughtful, and well-considered blog article doing the rounds on social media, which posits the view that it’s possible that Scotland could become independent if the Scottish Government develops its own written constitution, without any need for a referendum or plebiscite election.
It’s a nice idea, but here’s the thing. There is no cheat mode in the constitutional game. There are no short cuts. There are no back doors. There is no magic bullet. The only way that Scotland can achieve independence – and crucially have that independence recognised by the international community – is following a popular vote in which a majority of the Scottish electorate explicitly opt for independence and provide a cast iron popular mandate for the creation of an independent Scottish state. That’s it. That’s the only way. No other options are available. No other routes are open to us.
These legalistic schemes based upon the Treaty of Union, the Claim of Right, or assertions of Scottish sovereignty crop up regularly amongst independence supporters. Sadly they are the independence supporter’s equivalent of dreaming of a lottery win in order to solve your credit card debt and to go off on a luxury holiday in exotic climes. It might be a comforting daydream, but it’s not going to happen. It’s a distraction from the real hard work that we need to do as a movement. That’s the work of organisation, of persuasion, of ensuring that a majority of the people in this country explicitly support independence in a recognised vote.
Think of it this way. As supporters of Scottish independence we believe in the sovereignty of the Scottish people. So how can we establish that principle by what would in effect be a legalistic fiat, imposed upon a population which had not explicitly given its consent? It’s a contradiction in terms. You cannot establish the principle of popular sovereignty by denying the need for a vote. It’s like shagging for virginity.
It’s all very well claiming that the people of Scotland are already sovereign. But the harsh reality is that claim means diddly squat unless it is recognised. It needs to be recognised by the people of Scotland. It needs to be recognised by the British state. It needs to be recognised by the international community. All three of those bodies must recognise Scottish sovereignty for it to become real, for it to have effect.
Those people in Scotland who do not support independence would feel no obligation or need to support the new state, as they would not have been consulted in its foundation. They would claim that there was no evidence that a majority of people wanted independence. They would demand that the British state did not recognise this breach of their rights and they would be joined in this chorus by Scotland’s overwhelmingly anti-independence media. They would insist on intervention. They would call on the British state to take legal action to ban, prohibit, and close down pro-independence groups and organisations, claiming that they were anti-democratic.
Worse, the new state would be viscerally, and potentially violently, opposed by that section of the Scottish population which would never under any circumstances vote for independence in a referendum or a plebiscite election. That is in no-one’s interests. One of the most positive aspects of the Scottish independence debate has been that it is rigorous in its respect for democracy and its rejection of violence. It does no one any favours to risk provoking opponents of independence into violent action against a newly declared Scottish state. The only way in which that section of the Scottish population can be peacefully reconciled to Scottish independence is following a vote in which a majority has voted for independence. If independence is declared via legalistic means, without a vote, that atavistic section of the Scottish population may very well resort to violence in an attempt to overthrow the new Scottish state. They may very well receive the tacit, if not the explicit, support of elements in the British state in order to do so.
Do you honestly believe that the British Government, presented with a legal argument based upon the Treaty of Union claiming that Scotland is already independent without a referendum or popular vote, is going to say, “Oh that’s OK then. Off you go.” It’s not going to happen. The UK Supreme Court with its majority of judges schooled in English common law and steeped in British constitutionalism will strike it down. Legal arguments based upon alleged breaches of the Treaty of Union by the British government are doomed to failure, in part because the British government holds the position that an independent sovereign Scotland was extinguished in 1707, and the UK Supreme Court will back them up on that. As far as they are concerned, the Scottish Parliament holds what powers it does on the sufferance of Westminster. A power devolved is a power retained. Westminster still believes it holds all the powers. It just chooses to allow Holyrood to exercise some of them. That’s what devolution means. That’s what gives a lie to the claim that Scotland is really part of a Union and not a subsidiary part of a unitary state.
Without a popular vote or referendum explicitly backing independence, the international community would not support a new Scottish state. If the British state ruled that the new Scottish state was illegal, the international community would not recognise it either, and would look the other way as the British state cracked down, saying that it was an internal matter for the UK. The legitimacy of sovereignty flows from a ballot.
Fundamentally however, the question of Scottish independence is not about law. It’s about politics. Political realities trump legal arguments every time. The political reality is that the British state will never consent to Scottish independence without a majority supporting independence in a popular vote. That part of the Scottish population which is implaccably opposed to independence will never reconcile itself to independence without a popular vote. The international community will never recognise Scottish independence without a popular vote. Trying to establish Scottish independence without a popular vote is like designing and printing your own banknotes. They might look pretty, they might look real, but you still need to get the shops to accept them.
The best that these legalistic arguments can achieve is to help give the Scottish Government legal ammunition to use against Westminster in order to ensure that a referendum comes about. They do not and cannot supersede the need for that popular vote. So let’s keep ourselves focused on the real job that we have here. That’s getting organised, that’s building the case for a better Scotland, building the case for a Scotland where governments respond to the needs and desires of the Scottish electorate, building the case for self-determination, and above all, building a winning case for that referendum when it happens.
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Wee Ginger Dug 
A good post and I appreciate the time you have taken to write it in relation to my blog post. Of note is where you state that there must be a popular vote. I agree with that but are you categorically stating that the popular vote must be a Yes No binary choice?
Why could it not be part of the 2021 election pledge that a majority of SNP MSPs elected would be the democratic will of the people to enact any codified constitution?
Other countries have done it this way. Thatcher herself admitted this possibility.
I’m not saying it’s the way to gain independence, what I am saying in the blog is that surely it is or has been looked at and the points in the blog should open people’s minds to the possibility that the SG and Cabinet are in a constant state of endeavour in accomplishing independence because we all know that WM is constantly trying to preserve the Union.
If there’s an explicit manifesto commitment in 2021 that a vote for a pro-independence party is a vote for independence, then that means that the election would be a plebiscite election. That’s still a popular vote. We can only achieve independence with a popular vote, explicitly backing independence. We can do that either via a referendum, or via a plebiscite election, but both require us to win a majority of the popular vote at the ballot box.
Agreed and I would love to see a codified Scottish Constitution as part of that manifesto which enshrined the rights of us all moving forward whether pro independence or not.
Again thanks for taking the time to respond. Your work is fantastic and so is your effort in achieving independence.
Thank you for your interesting and thought provoking blog post.
It would therefore, in theory, be possible, to have a “referendum” every 2 or 3 years, if it was stated in a manifesto, that a vote for an Independence party, would be counted as a vote for Independence in a General Election, or a Scottish Election. So much for, once in a generation.
What about the unique ultra-open voter franchise on our very nationhood? Getting on for half the No vote is not even Scottish, and we invite them all to thwart our nationhood just by having an address here?. And if we are lucky, after any indyref2 Yes vote do you really think Westminster would readily give its consent to that, and if it did what do you think Westminster’s ‘Independent Scotland Act’ would make Scotland look like, asset wise? Like an ex French west African colony I would jalouse. You are kidding yersel oan WGD. We must take the constitutional route, via a majority of MP’s as the union was brought about, and assert our own sovereignty to dissolve the charade, preferably prior to Brexit. Anything else is pure hope!
I wish you’d both stop playing into union hands talking about voting for or winning our independence, we are bound to England by nothing other than a ‘legal’ arrangement, end that arrangement and you end that bond, there is no independence to win only a legal arrangement to dissolve. Start painting it in those terms and it looses much of the gravity unionists pile upon it with words like independence and separation.
I would claim none of the legal understandings of either of you, however it seems an obvious and logical fact that Scotland had to be sovereign in order to form a union with another sovereign nation…in which case in the absence of that treaty of union or ‘legal arrangement’ we are by default sovereign again. If this were not the case surely then the treaty itself would be bogus.
I can see your point as regards sovereignty, but we also need to demonstrate that independence/ uncoupling from the union is the will of the people. Hence the need for one or other of the plebiscite.
Reblogged this on Ramblings of a 50+ Female and commented:
An accurate account of the only two ways Scotland can gain her independence.
Both blogs are very interesting. Thank you Paul and MacAlba.
There’s something I say often:
“If the law is perfect, why do politicians have the power to change it?”
We need proof that the majority of the population of Scotland is in favour of independence (and the only way to do that is a popular vote), but once we have that, options like this are useful as sticks to beat Westminster over the head with. Because, honestly, even after winning the vote we’re going to have a hell of a time dealing with them.
But putting too much effort into them at the moment is putting the cart before the horse – we need to hold and win that vote before it’s particularly useful.
Agree with everything you say. But I’m far from convinced the British state would agree to negotiate independence, supposing every single Scottish seat was taken by a pro-independence party with an explicit pro-independence manifesto.
And how many of the Looney Yoons would continue to work to undermine the country no matter what majority was achieved? And will there be violence? These are things we may face no matter how independence is achieved.
[…] Wee Ginger Dug There is no cheat mode There’s a very interesting, thoughtful, and well-considered blog article doing the […]
supersede, by the way.
One day you’ll comment on something other than a spelling mistake.
Great article as usual Paul, I agree with your explanation.
My main concern is that “Perfidious Albion” (again imo) go into “super charged cheat mode” to ensure the results of any referendum or plebiscite go their way to prevent Scottish Independence.
I do not trust the British State… retaining Scotland and its resources are top priority for them.
This of course is absolutely the main issue. Can we trust the machine with our votes! How do we guarantee that every yes vote is counted? What energy are we putting into making sure the system is honest?
Reblogged this on mikeinkwazi and commented:
The wee dog is spot on as usual
Scotland missed her opportunity when she had +50 MPs. Then was the time to call for a negotiation with Westminster for independence and accommodation with England over issues of common interest.
Look where we are now. We now have a number of absolute Conservative numpties as MPs and MSPs. how did that happen? Well Dark money seems to have been a factor in providing resources well beyond the membership of the Unionist parties. The machinations of Cambridge Analytica a factor? And of course the press and the BBC.Why else could have so people have voted for these numpties? Interference in the voting returns?
Keep it simple, a show of hands, meaning no postal voting, ID must be shown at the polling station. Counting is done at the polling station.And as for electronic voting – never never never. Writing in a selective voting trend programme would be easy, and I’m decades out of the programming industry.
This conversation does the rounds because no one believes we will get a second referendum and we need options. As has been said even then there won’t be a level playing field and we are all expecting London to go full Madrid mode. Ideal world we would have a free vote with full disclosure of facts and respect but never going to happen. We can’t keep bringing pea shooters against cannons, that is not a shout for violence but I’m pig sick of fighting on the back foot all the time. We need to be mindful of our behaviour and how we put arguments across but we are trying to free our country not win a uni debating club challenge. The fear of violence can not be used to put us off because the elements of our society that would commit such acts done it when they won chances are they’ll do it no matter what cause that’s the scum they are. I’m trying not to lose my patience with the SNP but we really need a rallying call to get behind pronto. Use the mandate now please, do something!!!!
Couldn’t agree more Paul.
There is no quick fix. Would that there were. Oh GOD! Would that there were.
A point worth making, is that even if there were? Even IF Holyrood could take Westminster to court on Monday, make a winning argument on fine constitutional points and historic breaches of the treaty of union by Wednesday and simply declare independence by Friday. It WON’T work.
The ONLY way independence works is when the majority of the population want it to happen. It takes people. It takes people who care. It takes people who want the same things you do, to be the overwhelming body politic. THAT way, you ensure that your government reflects your population’s needs and aspirations.
You force people into doing something without a majority? Without, as stated above, consultation? You’re making a rod to break your back. Independence, self government, is over before it’s even begun.
Nor can the Scottish Government deliver independence for you. That’s not their job. Their job is to reflect those needs and aspirations. Their job is to provide you with the opportunity to choose. Once the choice is made, their job is to enact those choices and pass legislation in support.
Only the population. Only YOU can choose self government and empower your parliament to act on your behalf.
We CAN do this. The case is becoming more overwhelming, more unquestionable by the day. It’s even entirely possible that we’re over that magic halfway point already.
The power rests with the people.
Worth a thought. 🙂
Oil and Trident those are the British States priorities… The culture and society of Scotland is of no interest…but the financial and defence status of oil and Trident is of deep interest to the State.
The mother of democracy it has become clear, is a total illusion. We have the experience of 2014 to organise a relevant realistic campaign with several thousand experienced activists.
The threat of violence is real and possible but we do have a police force which hopefully is preparing for such eventualities.
One thing that is certain is change ….the British State may find as is very possible, that ‘the best laid plans o mice and men gang aft aglae’
Onwards and Forwards nothing else for it.
I’ve given this a like and I’d really like to believe you’re right.
But with my more realistic hat on, what makes you think that even with a vote for Indy (what would be the required percentage? Who would get to vote? In the light of the Brexit vote, could it ever be fair? …) that WM would accept it? As you explain clearly, to WM Holyrood is simply a glorified county council. Scotland has valuable assets. Look at the lengths UK governments of every complexion have gone to to hang on to Ireland, and later Northern Ireland, which is a drain on the British economy. Just to please a few violent ‘Loyalist’ nutters. Could they ever stomach the possibility of losing a large and valuable chunk of their ‘mainland’? Just the military bases alone …
They’re on the way out, Marconatrix, and will simply have to accept the inevitable.
Scottish Independence is now the norm.
That’s as good a blog post as you have ever done.
Spot on. FIRST a majority. All else follows.
Excellent article, we absolutely need a mandate, it’s time to put all other constitutional musings to bed. We cannot just ignore nearly 50% of Scots, we need to persuade them to proceed.
We also need to pay great attention to detail to make the case for international recognition….A section 30 order will be our first port of call. It’s amazingly short sighted that some are now saying an a section 30 order is not needed, in fact a section 30 order is a hindrance to the cause….We might not get one of course but we need to try that first.
I agree with WGDs comments but it would be interesting to take a look at the relative merits of referendum versus a plebiscite election. I’ve often wondered why the SNP did not capitalise on their dramatic electoral successes in the past and whether or not this would be a more effective approach now. Do folk think it all comes down to the same thing or is one strategically better than the other? Would the SNP leadership contemplate the election option?
Canada 1982 Act :: Australia Act 1986 :: New Zealand Constitution Act 1986………..implemention
Until these acts were negotiated these dominion territories had limited self governing powers. Parliamentary control primarily managed domestic policy & implemention , with Westminster mainly controlling foreign affairs & external relations for these Countries which were then classed as dominion territories.
All though each of the dominions had more inclusive powers thanScotland currently enjoys they only achieved full independence by negotiation with the U.K. government of the day resulting in full independence.
Full independence and international recognition for the above countries did not require a plebiscite but only to face jaw jaw with HMG.
We are recognised as a separate Commonwealth country , we have a fully functional Parliament & Civil Service , we carry out an ever increasing devolved agenda, we are highly educated & ambitious with an ever increasing distaste of Westminster Government. We are in fact in generally the same position as these Dominion territories before the start of their negotiations which concluded with full independence being achieved and agreed by each party
My point to Paul it is quite legitimate for a country to peacefully & in good faith negotiate independence & does not require a plebiscite as the examples above illustrate but it does require an act of good faith by each side.
Perhaps it’s time to attempt to approach Scotland’s Independence based on our historic treaties & Acts with England plus case law & 20th Century Dominions ?