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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