“A referendum that has a clear legal basis, agreed to between governments, that is regulated by law and consistent with democratic and rule of law values, is the surest – perhaps the only – way to deliver a result that is fair, decisive, and accepted as legitimate at home and abroad.” Chris McCorkindale, Senior Lecturer in Public Law, University of Strathclyde. Aileen McHarg, Professor of Public Law and Human Rights, University of Durham.
That statement could have been written by any unionist zealot, so blind is it in assuming movements for independence must work to legal principles set by the colonial authority under which they labour. Indeed, I am as sure as I can be, the paragraph is the facile ‘gold standard’ that Nicola Sturgeon sticks to in ludicrous certainty that no nation has achieved autonomy unless it followed rules set by its oppressors.
In fact, it might be the reason various SNP politicians have suggested Scotland sits tight until a sustained 60% of its population is for self-governance, (not the electorate, readers will note), a harebrained goal impossible to attain in a thoroughly colonised country. The only legal document worth respecting is the one laying out the Act of Liberation that sees the back of the aggressor nation and returns land and all rights to the people.
I am tempted to dismiss outright Messrs McCorkingdale and McHarg’s paper as the work of two people in a jumped up college calling itself a university. They come to their conclusion from the comfortable position of thinking Scotland is on equal terms with England; not much wrong with how we are governed.
For one thing, Scotland does not enjoy the wonderful “democratic rule of law values” that the two academics mention. The entire reason for Scotland’s rebellion is because no matter how we exercise democracy as formulated by Westminster, Scotland ends up the loser, economically, culturally, and politically. That has not changed in over 300 years.
McCorkingdale and McHarg do not see an enemy. They betray a colonial mentality in the defeatist phrase, ‘perhaps the only way’. Perhaps? Where did they get that idea?
The Rhodesian example
Alex Salmond is probably the most experienced parliamentarian in Britain, one of the few who served in both parliaments. When he says, as he did, “There are many ways to achieve independence”, he knows what he is talking about. A unilateral declaration of independence – UDI, is not one of them. Declaring self-determination might well be. I will explain the difference shortly.
At one extreme there is the current SNP policy of inertia, letting Westminster’s brazen corruption – millions paid to crony companies, a white supremacist outlook, a shift to a neo-fascist administration. The hope is, enough people will be convinced autonomy is a good thing; at the other extreme, a few people advocate we should announce UDI. This is assumed to be of the type declared by Ian Smith, prime minister of Rhodesia from 1964 to 1979, a man who managed to isolate Rhodesia internationally for 15 years, and in the face of harsh economic sanctions. Significantly, the UK then prime minister, Harold Wilson, refused to send in British troops, resisting all calls to retake the country by force.
Similarities Rhodesia with Scotland are ludicrous. Smith led an almost all-white, apartheid, rebel, minority government, unrecognised almost as soon as it was formed. The SNP has governed Scotland elected by popular appeal and, despite a few badly thought through policies, achieved a great deal of respect, even from its opponents. Nevertheless, the Rhodesian experiment is what British nationalists have in the back of their mind whenever they accuse the SNP of being ‘ugly separatists’.
The British Tory Party, free of Europe and ‘Johnny Foreigner’, are the ugly separatists in the UK’s case. Salmon offered independence-lite, keep the pound for a time, the EU, trade, no borders, NATO, and the Royal Family. Keep what we earn and have our own foreign policy was about as radical as it got – no room for republicanism there.
A Rhodesian-style UDI is the route no one wants to take in case it inflames the Tories to cut off Scotland from civilisation, sends in troops, and has the rest of the world so outraged nations refuse our whisky and deport Scots back to Caledonia. Alarmists are everywhere, but there is a kind of UDI that is legal.
The Royal Prerogative
For the purpose of this ramble in the thorny brambles of constitutional matters, I want to discuss the Royal Prerogative, a device to end the Union.
There was no end of threats by Tories to use this mechanism to invoke Article 50 as a method of ridding England of Johnny Foreigner – the European Union. (In the event, less than half of England voted Leave.) Westminster did not use it, and it is my contention they did not for fear it set the precedent for Scotland to use it to dissolve the Union.
I shall try to make my point as uncomplicated as possible, mainly so I can understand it! But it requires a degree of study on Articles and Acts.
Once you delve into the 1706 Articles of Union and the following year’s Acts of Union, you will perceive a similarity between those mechanisms and the Treaty of Accession to the EC and the European Communities Act. Okay, deep breath…..
Dissolving Unions: International Treaties and Acts of Parliament
All treaties are co-signed pacts open to renegotiation or withdrawal at any time. If they work well for both sides, fine, they will endure, if they do not, time to sit around a parley table and solve errors and grievances.
That treaties tend to exist for many years is because the parties involved do not wish to be seen reneging on an agreement. In Scotland’s case no Labour or Tory party would do that, keen to keep the Union alive. Small differences, conditions frayed at the edges or altered by unforeseen circumstances, can be solved by discussion. Scotland is that odd thing in the western world, a colonised country told the lie it is too poor to function without its neighbour, we cannot exist without help, hence the Union is God.
In Scotland’s case, the sovereign people never agreed to a union. A few earls, lawyers and clergy signed away our birthright. It stands as one of the great betrayals in our history. We are, by all reasonable analysis, ruled by a belligerent, and often brutal neighbour, now as racist and corrupt as a yogurt pot invaded by slugs. Our Westminster parliamentarians outnumber us 12 to 1. We are unable to alter things for the better for Scotland, only for England. In effect, we endure taxation without representation.
Of Articles and Acts
I doubt few Englishmen and fewer Scots have bothered to study the Articles of the Treaty of Union or the Acts of Union, and the non-experts who have done a quick study usually think they are one and the same. The texts read similarly but in legal terms they are quite different.
The Articles of Union signed on 2 July 1706 is an international treaty agreed between the two sovereign and tetchy kingdoms of England and Scotland. They were negotiated by ‘experts’ working under the Royal Prerogative, but the Union was not created from this document.
The same can be asserted of the accession treaty on 22 January 1972 between UK, Ireland and Denmark when Edward Heath made the UK a member of the Common Market. The UK only became a member of the EC after the European Communities Act 1972 had been passed in October of that year. It came into effect on 1 January 1973.
And here I have to add the obvious, a treaty means a degree of sovereignty is ceded by both parties on the basis both parties benefit. The derision we received at the hands of bully boy colonials when we suggested using the pound sterling for a short time shows their ignorance of how countries are voluntarily interdependent.
This small but highly significant element, that both Scotland and England will benefit equally has been the basis of all disputes between us since 1707, from Scotland being over-taxed, suppression of the clan system, banning the wearing of tartan and speaking in the Scots tongue, to the modern day equivalents of a poll tax imposed, Scotland exploited as a guinea pig, the destruction of our steel and ship building industries, and of course, dragged out of the EU against the will of the people.
There is a myriad of abuses perpetrated by England in the interests of England that have broken the Acts and Treaty. Those who argue free trade has been honored and a great thing, forget where the taxes go from the sale of whisky, to name one theft.
By the same token, like joining the Common Market, Scotland and England were not legally binding trading partners until the passing of both the Scots and English Acts of Union which ratified the Articles of Union of 1706. This distinction between Treaty and Act is made very clear in the preamble to the 1707 (Scots) statute. (Readers who have a mind to can study the wording in NOTES at the end of the essay.)
Ergo, ipso facto and blimey
With the Prerogative precedent established to join the Common Market, almost used a second time to revoke and repeal the European Communities Act 1972 using Article 50, it is invalid to argue the opposite, that it cannot be used for Scotland to leave the UK and negotiate a new, better accord fit for the rest of this century.
What is fit for England, is fit for Scotland. Indeed, with climate change upon us, it become imperative that Scotland can make its own laws to handle the crisis.
There is no impediment to use of the Royal Prerogative to leave the UK. Our Treaty and the one we had with the EU are international agreements. The same process can be used by the Scots government to revoke the Scots Act of Union of 1707. Granted, if we did that, someone will challenge it in court. The British state is liable to challenge anything we do in that regard, as we did, and won, when Boris Johnson tried to prorogue Westminster.
We must take account of the pre-1707 Scots monarch enjoying the Prerogative and the Articles of Union made under the Prerogative. The post-devolution Scots monarch (it might not be Elizabeth II, the first of Scotland) – is bound by the advice they receive from the Scottish Government. If the Scottish Parliament, after a referendum vote for independence, passed an Act instructing the First Minister to revoke the Articles of Union, or if the First Minister were simply to use her right to advise the Crown, the Sovereign would be obliged to comply.
Nothing of what I have written here is revolutionary. It is legal and civilised. This idea has been discussed at length in past years but rarely explained. Perhaps we need a statesman or woman to drum it home: revoking the Articles automatically revokes the Act of Union. Scotland could leave the Union without pleading to Tory Westminster.
So, no one need call UDI. By the method I’ve explained, we dissolve the Union to begin talks for a better relationship. Yes, our colonial masters will belittle whatever path we take; England has isolated itself and needs our wealth more than ever, but that is no reason to be nervous about moving Scotland’s constitutional rights into the modern age.
Using the Prerogative allows Scotland to leave the UK without the permission of the British Government and the UK Parliament. They would be made to understand, finally, that in Scotland the people are sovereign.
For readers wishing to do a little more study, here is the distinction between Treaty and Act caught in the preamble to the 1707 (Scots) statute:
Whereas Articles of Union were agreed on the Twenty Second day of July in the Fifth year of Your Majesties reign by the Commissioners nominated on behalf of the Kingdom of England under Your Majesties Great Seal of England bearing date at Westminster the Tenth day of April then last past in pursuance of an Act of Parliament made in England in the Third year of Your Majesties reign and the Commissioners nominated on the behalf of the Kingdom of Scotland under Your Majesties Great Seal of Scotland bearing date the Twenty Seventh day of February in the Fourth year of Your Majesties Reign in pursuance of the Fourth Act of the Third Session of the present Parliament of Scotland to treat of and concerning an Union of the said Kingdoms
And Whereas an Act hath passed in the Parliament of Scotland at Edinburgh the Sixteenth day of January in the Fifth year of Your Majesties reign wherein ’tis mentioned that the Estates of Parliament considering the said Articles of Union of the two Kingdoms had agreed to and approved of the said Articles of Union with some Additions and Explanations And that Your Majesty with Advice and Consent of the Estates of Parliament for establishing the Protestant Religion and Presbyterian Church Government within the Kingdom of Scotland had passed in the same Session of Parliament an Act intituled Act for securing of the Protestant Religion and Presbyterian Church Government which by the Tenor thereof was appointed to be inserted in any Act ratifying the Treaty and expressly declared to be a fundamental and essential Condition of the said Treaty or Union in all times coming the Tenor of which Articles as ratified and approved of with Additions and Explanations by the said Act of Parliament of Scotland follows