A great follow up article from Yours for Scotland regular columnist Mia.
“The constant arguments for achieving independence either without a referendum or through a non section 30 approval referendum are getting somewhat repetitive”
Far more repetitive and tiresome are the continuous goalpost moving and the inane arguments used to block Scotland from dissolving this union despite sending consistently absolute majorities of anti-union MPs for the best part of 8 years.
“There isn’t a non Section 30 route”
Yes, there is.
The Section 30 route only applies to the devolution settlement, that is, when you are trying to follow a route out of the UK utilising a devolution tool. Holyrood is the devolution tool. But using this tool means Scotland accepting to demote itself to the status of a region of Greater England. I don’t recall ever having been asked consent for that demotion.
The first question we should be asking ourselves regarding that route is if the devolution settlement is actually still intact. Because if it is not intact, then the “need” for a S30 becomes academic.
Does the devolution settlement remain intact? You tell me. Personally I think not, as I think that by butchering the Scotland Act, as collateral they also destroyed the status quo that legitimised their beloved No vote from 2014.
England MPs blinded by their greed, their rush to put their paws on Scotland’s assets and for unlawfully transferring power from our parliament onto themselves, butchered the Scotland Act. They did this unilaterally, that is, without Scotland, the rightful owner of those assets and powers, giving consent for them to do so.
Forcing someone to have sex without their consent is rape. Taking somebody’s belongings without their consent is theft. Knowingly mis-selling a product under the wrong specification is fraud. The three of them are crimes. So how do you call to the act of sabotaging devolution by savaging the mutual agreement that supported that settlement so England MPs could put their hands on Scotland’s powers and assets without Scotland’s consent, claiming it was “for our own good”? What kind of feeble constitutional law we have that does not consider such action as a crime against Scotland?
That Act was a contract between Scotland and Westminster, and what Westminster violated were some of the fundamental conditions stated in the contract. Considering that the butchering was not consented by Scotland, until what point such unilateral act of unconsented vandalism has not rendered already such mutually agreed contract null and void?
If you are thinking in the English convention mantra that Westminster is sovereign and can do as it pleases, then let me tell you it is not for many reasons. But the relevant one here is that the status quo which was presented to us during the 2014 referendum was one that had the Scotland Act intact, therefore butchering that act is an effing big change in material circumstances that changes the status quo which legitimised our 2014 vote. You destroy the status quo without both parties consent and you de-legitimise the result that rests on it.
Forcing absolute rule over Scotland is unlawful under the Claim of Right. Butchering that Act and forcing over Scotland a new status quo without Scotland’s consent is forcing absolute rule over Scotland. Had Nicola Sturgeon been a proper pro-independence leader instead of another Westminster puppet without a backbone, and she would have told Westminster to shove their butchered Act and their S30 where the sun does not shine.
After the butchering of the Act, asking for a S30 is legitimising the vandalism made by England MPs to that Act and legitimising the theft of our powers. Nicola Sturgeon hasn’t earned my respect by humiliating Scotland with such capitulation, when what she should have done is to fight for Scotland’s rights and declaring that Act void.
There is of course another dimension of devolution relevant here, which is until what point devolution was ever lawful in the context of the union in the first place. In 1707 Scotland signed a treaty with THE KINGDOM OF ENGLAND, not with Westminster or the “United Kingdom of Great Britain”. The Scotland Act is a contract between Scotland and the United Kingdom of Great Britain. In the context of the Union where Scotland is an equal partner and not a region of Greater England, such contract should have been between Scotland and the Kingdom of England, not with an entity whose legitimacy to act on behalf of Scotland relies on Scotland’s continuous consent for it to do so. So, how lawful is such devolution settlement when a parallel one was never designed for England? Until what point is lawful for England MPs in the context of a bipartite union of two equally sovereign nations to claim they “own” more of Scotland’s powers than Scotland itself?
The more you look into devolution in the context of the union, the more absurd and unlawful it looks and the more it looks like a strategy designed to transfer power from Scotland into England MP’s hands.
But I digress. Moving away from the devolution dimension, one cannot forget that since 1707 Scotland is an equal partner in a bipartite political union that stands over an international treaty. Scotland can and should exercise its legitimate right AS AN EQUAL SIGNATORY of that treaty, and not as a devolved region or a pretend region of Greater England, to terminate that treaty. It does not need any S30 for that. The only thing it needs is a majority of pro indy MPs with a backbone, with principles, with conviction and with loyalty to Scotland.
Terminating the treaty means removing the legitimacy of Westminster to continue acting on behalf of Scotland. As a matter of fact, and arguably, issuing a mandate for an independence referendum since 2016 has already removed that legitimacy from Westminster, so one wonders until what point Westminster can lawfully deny Scotland anything under such circumstances.
I am of the opinion that the situation where we find ourselves in, being first demanded to hold an S30, then denied one, then being told “now is not the time” while England MPs force absolute rule over us to take control of our assets, despite 3 absolute majorities of SNP MPs and despite mandates for indyref since 2016, is because we do not have a real pro-independence leader in charge of Bute House.
“Sturgeon clearly intends to test this in the Supreme Court knowing she will most probably lose”
Sturgeon has no intention in delivering independence, that bit is clear. 8 years of wasting our time, the best opportunities any pro-indy leader could dream of and investing all her energy in blocking the main route for Scotland to end this union while enabling brexit, prove as much. Her announcement on Tuesday was no different.
“Then everyone will wait for a meaningless plebiscite election”
It will be only meaningless if Nicola Sturgeon is allowed to get away with blocking the route again. What we need to stop this serial timewaster is another pro-indy party willing to run on a mandate where a majority of pro indy MPs is a mandate to terminate the union. I wonder if Alba would step up to the plate and help us bypass Sturgeon’s uncommitted SNP.
“which will enable the SNP to avoid scrutiny of their actual performance in Gov”
This is nothing about the abysmal performance of Westminster’s satellite government in Holyrood. This is all about the survival of the union and ensuring England can keep its hands in our resources to survive its brexit at our expense.
” Then whatever the result nothing will happen because – wait for it – it requires a Section 30 approval”
If nothing happens it will not be because of a stupid S30 whose need has always been dubious at best. It will be because we don’t have a serious pro-independence leader leading our majority of pro indy MPs to terminate the union.
MY COMMENTS
Mia has the rights of this. Yes it highlights London’s duplicity and bullying behaviour but equally worrying it also highlights the supine behaviour of the Scottish Government who instead of standing up for Scotland makes a few ”brave” statements then leaves the field open for whatever Westminster has decided to do. Can you imagine the difference if it was Mia they were having to deal with? I can and hope one day soon it will be a whole team of Mia’s on the field. That is what we need.
I am, as always
Yours for Scotland.
BEAT THE CENSORS
Sadly some websites that claim to be pro Indy have turned out to be only Pro SNP sites and have sought to ban any websites that dare to question SNP Policy or tactics. They seek to avoid the public being aware that alternatives to waiting for Westminster to “grant” Scotland a Section 30 to hold a referendum exist. Issues like the flawed franchise, the Claim of Right route, the work of the SSRG and Salvo fill them with dread. As this blog promotes all routes, including alternatives I am banned from these sites and am therefore very grateful to my readers, who knowing about these efforts to ban and suppress go out of their way to subscribe and to share my articles far and wide. It is a good thing that attempts to restrict free speech and censor are defeated in this way.
FREE SUBSCRIPTIONS
Free subscriptions are available on this site from both the Home and Blog pages. This will ensure you will be notified every time a new article is posted. Each article already gets posted to many thousands of people, I hope you will come and join us. You will be most welcome.
YOURS FOR SCOTLAND 
“Can you imagine the difference if it was Mia they were having to deal with?”
Perhaps “Mama Mia! Not her/him/them!!” is a likely Westminster response?
(No Wokeism implied).
LikeLiked by 5 people
Between Ian, Wings, & even Peter Bell, today we have seen more of the truth as to just what the SNP are today, Those who remain tied to that party either as MSPs MPs or members or voters are selling Scotland out..And the media in Scotland are of course making sure that the only VOICE in Politics we hear is STURGEONS & her LIES..
LikeLiked by 9 people
I agree, Mia. We have reached the point of no return. This can go only one of two ways now: either we abandon independence forever or until someone in the future picks it up and runs with it; or we descend into REALPOLITIK and do everything we must do to face down the British State. To do that, we must go back to the beginning of the British State, and, to do that, we must use the Scottish constitutional tools to show that we have been conned for over 300 years, that we, as the Scottish people, did not consent to the Union and we, as the Scottish people do not consent to the Union. There is no other way. Everything else is in the hands of Westminster, and we simply do not have the time to hang around waiting for the NuSNP to get it. They are neocon, neoliberal, militarists who have such contempt for their own people that they come up with mad idea after mad idea: a S30 indyref is not feasible because we might win – might; an advisory one is worse than useless and tells us that we want independence – whoopie; and a plebiscitary election that involves only the SNP is a con of the highest order. Elect us and we’ll offer you another mandate that can be stretched out for all eternity.
The SNP will never face down the British State, not when you can con women and hand over all their rights to men. So much less effort and a virtue-signalling coup, to boot. Ms ‘feminist to my fingertips’ Sturgeon has no intention of creating a broad alliance of all the independence groups and parties unless she is backed into a corner and forced to do so – which means, of course, that will be backed into a corner on immediate independence thereafter. Be warned, folks. No amount of evidence was enough to change her mind on the GRA reform (self-ID by the back door) and she is still willing to con her own sex in favour of men, so why would she not con the independence-seeking Scots in favour of the British State? Two questions: why is she so desperate to push through GRA reform and alienate hundreds of thousands of women; and why is she deliberately alienating hundreds of thousands of independence supporters to do it? These questions need to be answered. Not in speculative form, but in hard fact.
LikeLiked by 8 people
I am a man and this GRA spells disaster for men and women. There are plenty men, the vast majority, who support woman’s rights. Be careful not to alienate men who are supporters. This is a sense and respect versus nonsense and biology denying, including perversion argument. Nothing else.
LikeLiked by 8 people
Since you seem to have quoted my response and found it necessary to respond in detail let me just say that the courts are going to decide this. They will decide Scotland cannot become independent without a Sec 30. I won’t reply further because time will resolve this. As I said these arguements are becoming repetitive.
LikeLike
“the courts are going to decide this”
Do you think? I am not so sure to be honest. I don’t think this is going to be decided until the people of Scotland decides the matter has been decided. If the courts do not resolve the issue to the satisfaction of the people of Scotland, the matter will not be put to rest. It will continue until it is.
May I ask which court do you have in mind? Would it be the English court that calls itself “Supreme Court”?
I wonder what will this court decide this time, perhaps how to efficiently breach the Treaty of Union and Claim of Right 1689 while still pretending it represents as much Scotland’s interests as England’s. Or perhaps how to act as an effective instrument to gag Scotland in constitutional matters when England’s interests are at stake while still pretending it is objective. None of its previous actions in the last few years gives me confidence on a better oucome.
In the last 7 years we have several examples where that court used English judges to rule on matters related exclusively to Scotland. This does not fill me with trust because I see absolutely no place for English law or English convention in matters related to Scotland, Scotland’s parliament, Scotland’s bills, Scotland’s constitution or Scotland’s body of law.
For example, that English court pushed aside and ignored Scotland’s Claim of Right in its rush to let England’s gov to butcher the Sewel convention and the Scotland Act and re-write law to be applied retrospectively so England MPs could steal our powers and control of our assets.
That English court also ignored Scotland’s rights as an equal partner in this union by denying us a veto on Brexit, despite the act of forcing brexit on us being at all practical effects forcing absolute rule on Scotland which is unlawful under the Claim of Right.
That English court used English judges to decide on Scotland’s continuity bill, a matter which is exclusive to Scotland, to Scotland’s parliament and to Scots law, therefore where English law and English judges had not business sticking their oar in.
As you can see, by saying “the courts are going to decide this” you are not giving me any peace of mind or reason to trust the outcome. Let me tell you that it does the complete opposite. It actually makes me even more convinced that they will attempt again to gag Scotland. I have as much trust in that English court as I have in Nicola Sturgeon ever delivering independence: zero.
In line with article 19 of the Treaty of Union, no sentences in Scotland’s courts are to be interfered with or stopped by the English courts. So perhaps you could enlighten us as to why the FM of Scotland submitted that draft for approval directly to an English court rather than doing what she was expected to do which is to send it to a Scottish court.
The draft is for a Scottish bill, to be passed in Scotland’s parliament and to be included in the body of Scots law. It has nothing to do with English law. Scotland’s constitutional law is different to England’s, so what was the real reason for such a strange move? Wouldn’t the logical and obvious thing to do have been to have that draft tested in a Scottish court, rather than an English one? I am sure I am not the only one that feels this FM is sending the entire wrong message by seemingly overriding and undermining Scotland’s constitutional law and courts and rushing to send a Scottish bill to an English court instead.
But given article 19 of the Treaty of Union, one is also justified on wondering if it was sent directly to an English court because if the draft was approved by a Scottish court it could not be trashed by an English court unless that English court breached the Treaty of Union. Again, perhaps you could offer a bit of clarity on this.
I don’t think you need to have the intellect of Einstein to guess that this English court is going to rule against the bill.
If it doesn’t then something really dodgy is going on. If what the Telegraph published yesterday is correct, what Sturgeon submitted apparently was not a real bill but rather a draft. In Mr Keatings’ case, Sturgeon’s member of the cabinet (the former Lord Advocate) acting against Scotland’s interests and for the interests of the British state instead, successfully stopped Mr Keatings and his backers finding out if Scotland’s parliament already had the power to pass that bill or not. If I am not mistaken, the ruling of that case was that we could not be told if Scotland’s parliament had the power to hold the referendum or not because a bill had not been passed and therefore “the action was hypothetical and premature”. Well, isn’t a draft with no date to be presented in parliament or when it is going to be debated in parliament or when it is going to be amended in parliament and if or when it is going to be approved in parliament, also an action that is hypothetical and premature?
One has to wonder what kind of political game is this. Sending a draft bill instead of an actual bill, and sending it to an English court rather than a Scottish one appear like setting the bill to completely fail. The only perspective from which this makes any sense to me is that where this move has been just another one in the mile-long catalogue of moves from Nicola Sturgeon since November 2014 to undermine Scotland, to stall the referendum and to stop Scotland ending this union. In other words, it appears designed to fool us by pretending something is being done when in reality nothing other than stalling the process and wasting time is being done. At the same time, it appears designed to move the accountability for not doing anything directly from Nicola Sturgeon to the Supreme Court. I am not fond of that court at all, but this doesn’t seem very fair.
If its not that English court what you have in mind and instead is a Scottish one, well, we have seen how perjurers were given anonymity so they could abuse this concession to suppress evidence during Mr Salmond’s court case and during the parliamentary inquiry. We have seen how these individuals were never dragged back to a court of law and prosecuted for their lies, while instead we watched how they abused the anonimity to continue trashing the reputation of an innocent man. We have seen how Mr Murray was sent to prison after a judge made a complete fool of themselves and stained the reputation of their profession by using the most ridiculous verbal acrobatics to justify sending a blogger to prison while letting off the hook unionist mainstream reporters, who seemingly did the same thing,
As you can see, I don’t know what the word “courts” means anymore. Do they actually mean something or have they demoted themselves to the status of a political arm (COPFS being the other) to effect government’s interests? In their rush to protect governments’ political interests, the courts and the COPFS have recently discredited themselves in the eyes of the public in such way that you have to wonder if their rulings are seen as meaningful anymore or just as the tool of last resource within a corrupt government’s echo chamber.
“As I said these arguements are becoming repetitive”
And as I said: “Far more repetitive and tiresome are the continuous goalpost-moving and the inane arguments used to block Scotland from dissolving this union despite sending consistently absolute majorities of anti-union MPs for the best part of 8 years”
I wish you a lovely Saturday afternoon.
LikeLiked by 7 people
Thank you Mia. We actually hold all the cards unfortunately.
When corrupt people come together they will create the laws that justify their corruption.
LikeLiked by 3 people
Mia is right insofar as the s30 route is the one available under the Scotland Act.
I think she is wrong about Nicola as Nicola had to go along with general feelings of the populations.
Declarations of Independence would not work as most Scots are practical and comfortable.
I believe we are reaching a stage where life is going to become a lot more unco for table for people. They will look at other countries and wonder why they are still comfortable.
There lies the opportunity to test the legality of the Union before the U.K. Supreme Court. The tests would be the right of the SNP leadership to claim to represent Scotland. As the party has majorities in both Holyrood and Westminster by any interpretation they represent Scotland.
The next test is can they move to dissolve the Union unilaterally. I think they can on the basis of UN law and the fact that Westminster has on several occasions breached the Articles of Union so can’t bring it to the Unionist’s aid.
I hope that the Both the s30 route and the dissolution of the Union route are both presented to the Supreme Court
LikeLiked by 2 people
“Declarations of Independence would not work as most Scots are practical and comfortable”
A Declaration of Independence will have to be made one way or another.
Scots may be practically minded and rightly seeking the comfort and wellbeing of their families, but no Scot likes to be lied to, to be cheated or to be taken for a fool.
Nicola Sturgeon and the SNP were not voted in to pander to No voters, settlers or an English court. They were voted in to reassert Scotland’s rights under the Treaty of Union and to deliver independence.
“There lies the opportunity to test the legality of the Union before the U.K. Supreme Court.”
Can you see why that statement may be seen as an impossibility?
The “UK” supreme court is a product of Westminster. Westminster is a product of the Union. Neither the Supreme Court nor Westminster are entities independent from the union, their authority and legitimacy comes from the union’s existence and continuity. This means they are in no position of credibility to rule objectively on such matter. If the union has no legal standing anymore because the fundamental conditions in the Treaty have been breached, or because it was achieved under duress or in a fraudulent way (with bribes), or because the principle of pacta sun servanda has been breached, or because Scotland claims changes in circumstances that warrant its termination of the treaty, then the legitimacy of Westminster and the legitimacy of the Supreme Court as the Union’s parliament and the Union’s Supreme Court disappears. The same applies to whatever is left standing of a devolution settlement established by Westminster and that is tying our parliament to Westminster via the Scotland Act. If you contest the legitimacy of the union, then you are also contesting the legitimacy of Westminster and that court itself so it can no longer rule objectively.
The only courts that can rule objectively on this matter are those whose existence and permanence do not depend on the continuity of the union. I am referring to Scotland’s Supreme Court, England’s Supreme Court or an International Court. I include the latter because the Treaty of Union is an international treaty after all. To be honest, if the legality of the Union is tested in the so called “UK” Supreme Court I would not trust a single word of any ruling made on the matter by those judges, because I do not see how they can ever demonstrate that court is sufficiently independent from the Union and even Westminster to be able to rule objectively on the matter.
“The next test is can they move to dissolve the Union unilaterally”
I think so. Scotland and England are in a bipartite international treaty. Even if the treaty does not have an explicit exit clause, there are at least four routes to terminate the treaty:
1. by declaring it void after our partner breached the fundamental conditions of that treaty
2. by mutual agreement of both parties
3. by proving our partner has not followed the principle “pacta sun servanda” (it has not followed the principle of good faith).
4. When a material change of circumstances takes place
It is generally admitted that the fundamental conditions of the treaty have been breached many times during the last 300 years. Forcing brexit on us, stealing our powers without our consent, re-writing our laws without consent are examples of breaches of the Claim of Right, which is the main pillar of the Treaty of union.
Imposing on Scotland England’s interpretation of the treaty that it was an act of annexation instead of a mutually agreed union, that Scotland was absorbed by England and that Westminster is the old English parliament and therefore inherited the English convention of parliamentary sovereignty could be interpreted as bad faith.
A majority of pro-indy MPs on a mandate to terminate the union is a material change in circumstances. It is a material change in circumstances because it proves Scotland does no longer wish to continue tied on that treaty. It is a material change of circumstances because the Claim of Right is a fundamental pillar of the Treaty of Union and the Claim of Right 1689 clearly states that absolute rule over Scotland is unlawful under Scotland’s constitutional law. This means that the minute a mandate to terminate the union has been issued from Scotland, forcing Scotland to remain in the union is unlawful under that Claim of Right.
Article 56 of the Vienna Convention states that a treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless it is established that the parties intended to admit the possibility of denunciation or withdrawal, or a right of denunciation or withdrawal may be implied by the nature of the treaty.
The treaty of union does not have an obvious exit clause and the first article claims the union is forever. However, the mere fact that fundamental conditions that had to be observed at all times were included in the treaty, implies that when the Treaty was redacted, the parties, at least the Scottish Parliament, admitted the possibility of denunciation or Withdrawal. Further proof of this is the attempt to terminate the treaty in 1713 after Westminster breached the article regarding the Malt tax.
The treaty was signed in the 18th century and its principal aim was to ensure the succession of Scotland’s crown was to the same monarch as England. Under the claim of right Scotland could decide to remove the crown from the present monarch, therefore you could argue that the nature of the treaty and the fundamental role of the Claim of Right validating that treaty, would imply a right to withdrawal.
Personally I have been wondering since 2016 if Sturgeon has been stabbing us in the back. Article 45
of the Vienna Convention (Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty) says:
“A State may no longer invoke a ground for invalidating, terminating, withdrawing from or
suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware
of the facts:
(a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation,
as the case may be; or
(b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or
in its maintenance in force or in operation, as the case may be”
Article 62 of the Vienna convention refers to “Fundamental Change in Circumstances”. It says:
” A fundamental change of circumstances which has occurred with regard to those existing at the
time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a
ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of the parties to
be bound by the treaty”
The union is consensual. We have been told repeatedly that the union ends whenever Scotland or England want it to end. In other words, consent from Scotland is fundamental to remain tied by the treaty. A majority of SNP MPs in 2015 was a fundamental change in circumstances because it was the first time in 300 years that Scotland sent a majority of anti-union MPs to Westminster. This was accompanied with over 50% of the vote for pro indy parties. Negotiations to start withdrawing from the union should have started at that point.
In 2016 we gave the SNP a mandate to hold an independence referendum if there was a material change of circumstances. Sturgeon already wasted the material change of circumstances of the GE 2015, but Brexit was a huge material change of circumstances, as it was rewriting our laws and butchering the Scotland Act, for example, or the blatant attempt to impose on Scotland the “Henry VIII’s laws” when this pre-dated the treaty and therefore was in breach of yet another of the articles of the treaty.
But, just as she did with GE2015, she let those changes in circumstances pass us by. Today we may have a new mandate for indyref, but Brexit is no longer a change in circumstances. A majority of SNP MPs has been the status quo since 2015 and brexit has been the status quo since 31 January 2020. Can they still be used? Has she been letting those material changes in circumstances become part of the status quo on purpose to activate clause b of Article 45 of the Vienna Convention?
Also, what about the potential recent breach of article 46 of the Vienna Convention (Provisions of internal law regarding competence to conclude treaties) with the EU Withdrawal Bill?
Article 46 says
“A State may not invoke the fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to conclude treaties as invalidating its
consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”.
The Claim of Right is a rule of internal law in Scotland of fundamental importance. The EU Withdrawal Bill claims Westminster has parliamentary sovereignty, which clashes directly with Scotland’s popular sovereignty. The Withdrawal Agreement with the EU could only respect the Claim of Right if Scotland had explicitly given its consent to enter that treaty, even as part of the UK. So, did Scotland give its consent for this? Or the EU entered this treaty under the assumption of Scotland’s consent because that EU withdrawal bill claimed parliamentary sovereignty for Westminster?
That treaty falls directly under the Vienna Convention because is very recent. So why wasn’t it challenged? Was it because Sturgeon gave consent on Scotland’s behalf to enter this treaty but without even bothering to ask us to find out if a majority of us wanted to enter that treaty? If Sturgeon gave consent on Scotland’s behalf to enter that treaty, then demanding over 50% of the vote either in a referendum or in a GE as a mandate for independence has to be the biggest expression of hypocrisy and double standards one has ever seen.
Scotland’s MPs should have terminated the union in May 2015, 2017 or 2019. The question as to why Sturgeon removed the wheels of the SNP in 2015 and 17, claiming a vote for the SNP was not a vote for independence and why she has acquiesced in the validity of the treaty despite those huge changes in fundamental circumstances instead of seeking to terminate it, still need to be answered in a convincing manner.
In the same fashion, why the parliamentary sovereignty included in the EU withdrawal bill clashing with Scotland’s constitutional tradition of popular sovereignty and the treaty with the EU done without Scotland’s consent but assuming Westminster parliamentary sovereignty, were never challenged by Sturgeon or her SNP remains to be responded in a convincing manner.
LikeLiked by 5 people
The trouble is Nicola didn’t win the job to become leader of the SNP we gave it to her, why because there wasn’t anyone else good enough, what I know now I wished there was. I believe if we can all work together we can reach that target of 51% at the next Westminster election.
LikeLiked by 1 person
“I believe if we can all work together we can reach that target of 51% at the next Westminster election.”
I would love to be able to believe you, but sadly I cannot. 2015 was the only recent election where Scotland voted more than a 50% for pro indy parties.
On that election the combined vote SNP + Greens was 1,493,641
The combined vote Labour + Tory + LibDems was 1,360,919.
For that election the UK establishment was safe because the serial time waster in control of the SNP had already removed the wheels of the SNP so it was not going to go anywhere. If needs must, they would have only needed 134,000 people living in England or even out of the UK with holiday houses or family in Scotland, new civil servants and military personnel to temporarily relocate their voting address to Scotland and then cast a postal vote. And voila! job done. Majority pro indy vote no more.
When you think of it, how many people from down south has relocated to Scotland since 2015? How many Scottish people has moved away? How many new civil servants we have now? How convenient it is that, because we had a delay on the census (that England and Wales did not have), we cannot know how the proportion of non-natives ihas changed in Scotland in the last 10 years?
We will never reach over the 50% threshold unless England plays clean. Do you think we trust its government and establishment apparatus to play clean when their own economic survival is at stake?
LikeLiked by 4 people
Mia, I agreed with what you were saying entirely, but the reality is there is no mechanism in which we can get rid of Nicola Sturgeon other than at Holyrood election. Remember in 2015 people were voting for a manifesto from a political party not on the constitutional question, which will be, if Scotland should be Independent. We have supporters for Independence in the Labour party, I believe it’s around 60% of Labour supporter, there’re also people in the Lib-Dems and Tory Party who would also vote for Independence but wouldn’t vote in a general election for the SNP. We in the Yes movement with the help of AUOB should be marching on Bute House and demanding more detail of Sturgeon plan B and asking her directly if she’s setting Scotland up to fail. We should also ask the question, does England need a Section 30 order and if not, then why does the FM believe Scotland needs one, when the Welsh Labour leader doesn’t believe Wales needs a Section 30. We need to stop allow Sturgeon to deny the Scots their say and start doing something about it. So it’s going to take the Yes movement, Alex Salmond, ISP and everyone else including Wings supporters to march on Bute house and demand exactly what it is we do want, because unless we stop marching round the streets to get rid of Boris who is still in power and has been for a year since the march took place we’re not going to be Independent. It’s our right as stated in the claim of right to determine who and how we are ruled, this is the way in which we can start to claim back our rights, by telling the UKG and SG what we want and to stop being silent on the Issues that matter. I’m just as fed up of Sturgeon and her government as every one else, but I’m also fed up with the Alba party and its stupid attitude to the monarchy. If we want to be Independent its Independence from the Union nations, Monarchy and the commonwealth its time to chart our own destination.
LikeLiked by 3 people
Let’s hypothesise that Scotland manages to find a route to independence and forces it through against the will of UK gov. Exactly what negotiating programme the occurs? An IScot would be highly dependent on cooperation from rUK gov.
LikeLike
“Let’s hypothesise that Scotland manages to find a route to independence”
The route to independence is already here and has been since 1707: a majority of anti-union MPs sent on a mandate for independence. The hypothesis that should be tested is how on earth the majorities of SNP MPs sent in 2015, 2017 and 2019 can be seen as non mandates for independence when the party retained its first constitution article all the way through. What makes the words of the party leader more important than the constitution of the party?
“and forces it through”
“forces” it through? This union is voluntary. Thatcher was the first one to acknowledge it. Theresa May repeated it no long ago. A majority of anti-union MPs sent on a mandate for independence is the proof Scotland does no longer give consent for this union to continue. Forcing Scotland to remain in the union under those circumstances equals to forcing on Scotland absolute rule, which breaches the Claim of Right and by default the Treaty of Union that rests on that legal document. I argue this has been happening at least since 8th May 2015.
After achieving that majority, Scotland has to notify its partner (the kingdom of England) of its decision to terminate the treaty. In line with the Vienna Convention, this should be done a minimum of 3 months before declaring independence. But it would be sensible to extend that period as transition to allow for negotiations. During that time, if both parties agree, then the separation proceeds. If not, they must have to seek a solution under Article 33 of the UN. This is the point where the real negotiation starts.
I suspect the Kingdom of England will reject the outright termination of the treaty because this may wipe out its aspirations to remain as the continuator state and retain all the current international organisations seats, treaties and trade deals the Uk has. But that will be the starting point of the negotiation.
“against the will of UK gov”
That Scotland will become independent “against the will of the UK gov” is a given. Scotland holds some of the biggest natural assets the UK has, England as the UK is not going to want to lose control of those, particularly at a time when its own brexit folly is starting to bite hard, it is trying to repair the economic damage of the pandemic and when Russia my cut the gas supply.
But if Scotland unilaterally terminates the treaty, it should not be the “UK gov” who has to respond, it should be the Kingdom of England, which is our partner. The UK gov and the UK parliament are by-products of the union, they are not our partner. Because the Kingdom of England does not have a government per se, it will be most interesting to find out who will represent it. It probably will be the UK gov acting as the Kingdom of England’s gov because at the end of the day, the UK gov are all England MPs any way.
There is a huge difference between seeking independence via the devolution route, which leaves Scotland completely at the mercy of England as the UK, or seeking independence by terminating the treaty. In the latter, Scotland and England start the negotiation from the same point: nothing (in terms of treaties and trade agreements).
No matter if Scotland, chooses the devolution route Sturgeon is so desperately keen on, or if it leaves through the termination of the treaty, the outcome is similar in the sense that it leaves with no treaties and trade deals. The difference is the number of assets and potential compensation it walks away with.
For England as the UK, the devolution route means automatically remaining as continuator state and all the goods, trade deals and current treaties, plus having control over Scotland’s government structures, policies and markets. And of course the timeframe.
I suspect the Kingdom of England will fight to retain control of our assets, access to our market and the status of continuator state, but what we want is to bring the Kingdom of England to the negotiating table. What will determine how much Scotland walks away with is how much England values remaining as the continuator state.
When the Scotland Act was passed and Holyrood approved, there were concerns about the high level of support for independence in Scotland. One wonders if one of the reasons why devolution was never started in England, and why everything was overcentralised in England leaving Scotland bare, has been to ensure it would be in the best position to remain as the continuator state and, by retaining most infrastructure, government and parliamentary apparatus, would be able to be a fully functioning state from day one in the event Scotland’s independence. By contrast, Scotland is missing quite a few things compared with what it had when it entered the union as a sovereign state. If there is any truth in this, it would be additional proof that the Kingdom of England has been preparing for Scotland’s independence for a very long time and it also proves over-centralisation in England has nothing to do with UK interests and all with England’s.
LikeLiked by 5 people
I grew up on a diet of mince and tatties and Rugby Union, back in the glory days of amateur Rugby when the Scotland used to narrowly lose to everybody. They might narrowly lose to the All Blacks, or narrowly lose to some provincial squad from the middle of nowhere. Good, bad or indifferent, we didn’t discriminate and could narrowly lose to anybody. We seemed to have a knack for it. In fact, as narrow losses go, Scotland had some of the very best narrow loses on record.
The point is, Scotland could match the opposition and hold its own against anybody, but was dogged with a lack of capacity for turning all the pressure into points. Was it luck or a lack of killer instinct? Or just a lack of belief? Whatever it was, I fear Scotland’s politicians have the same affliction.
I’m fairly sure most folks will be familiar with the Electronic Scotland website, and the various articles detailing the work of the Scottish UN Committee back in the 80’s, and their efforts to secure more democratic accountability for Scotland, which of course led to the establishment of Holyrood. It’s good stuff.
https://www.electricscotland.com/independence/scotlandun.htm
You learn quite a lot reading the articles, but you also see a lot of the same things that are concerning us in 2022 were concerning people back in 1979. It’s sometimes difficult to tell whether things have improved or stagnated. We’re not good at turning pressure into points.
All these unconstitutional abuses Scotland suffers, the improprieties, the breaches of trust, the lies, the abuse and the injustices… where is there any retribution or recompense that’s been made to stick? The outrageous McCrone Report kept secret for decades… What actually changed after it’s public release? Was any less of our oil plundered? Did anybody get fired or prosecuted? Or did we all just shrug our shoulders?
Scottish Sovereignty violated by Brexit. Where is the complaint? Where is the protest? Where is the fallout?
The Claim of Right ratified by Westminster! Aye. Fine. So what good came of it?
2014, sitting MP’s broke Purdah and lied to Scotland with the Vow. Name me one MP even reprimanded breaching a Ministerial code.
The Vow itself broke the law because it was a new phenomenon introduced inside the last two weeks of campaigning. The consequences? None. Void result for cheating? Behave.
Scotland needs to start landing some of these body shots and making them count. We need more from the Claim of Right than merely acknowledged existence. We need to see Westminster bound into respecting the Constitutional Sovereignty of Scotland or paying the Constitutional penalty if they refuse.
Throughout all the campaigning from 2012 onward, and throughout all the encouraging disclosures from the SSRG and SALVO, the ONLY time Scotland has physically laid a Constitutional glove on Westminster was when Joanna Cherry KO’d Boris Johnson’s prorogation of Parliament, because it broke the uniquely Scottish Constitutional doctrine that Parliament served the sovereign people and thus could not remove itself from their scrutiny.
To some, that’s just a minor distinction, a lonely fact established in a wild meadow of unwritten conventions. But it’s so much more important than that, because Joanna Cherry’s victory put a principle extracted from a uniquely Scottish Constitutional doctrine higher up the pecking order than the determined will of a UK Prime Minister not to be overruled… Westminster’s Parliamentary Sovereignty is a myth. It is a lie.
Certainly in the last 30 years, I struggle to recall a single other instance where Scotland’s Constitutional rights were converted into points. All too often, we Scots back off when we think we’ve made our point. Aha! We’ve made Westminster acknowledge we are right! They been forced to write it in Hansard! … It’s not enough. A moral victory is no good to us. It’s the actual victory we need brought home.
Every time Westminster violates Scottish Sovereignty or the Claim of Right, there MUST be draconian consequences. Scottish Constitutional doctrines and principles must be defended with dogged tenacity, and no exceptions. If it needs taken to court, we take it to court. If Westminster won’t respect Scotland then we we make Westminster ungovernable until it does.
It’s time to stop playing nice. I heartily encourage you to listen to Sara Salyers once again, and remind all about the SALVO launch tomorrow.
https://salvo.scot/
LikeLiked by 6 people
“detailing the work of the Scottish UN Committee back in the 80’s, and their efforts to secure more democratic accountability for Scotland, which of course led to the establishment of Holyrood. It’s good stuff.”
Breeks
I think it would be more accurate to say that the people who wrote that website were on some “good stuff” at the time.
You believe that the limp-wristed Council of Europe “forced” the UK to introduce devolution – which had been a Labour manifesto commitment since the 70s – and not one of the thousands of politicians, civil servants, journalists involved has ever leaked it?
Oh, I believe these Scotland-UK jokers toddled over to Strasbourg and made a presentation. I think their own phrase was that they were “complimented on the clarity of their presentation”.
That’s like a teacher saying “good use of underlining”.
LikeLike
“In 1707 Scotland signed a treaty with THE KINGDOM OF ENGLAND”
Really? In 1706 a copy of the Articles was presented to Queen Anne, signed by the Commissioners from both Parliaments, but that had no legal force.
At no point did Queen Anne sit down and sign a treaty with herself. The only documents which ever got Royal Assent were the two Acts of Union. (And I think the Scottish one was never actually signed, just touched with a sceptre or something). So the position is that for a few months – between the agreement of the Articles and the passing of the Acts – there was a “draft treaty”, but there was never an actual signed one. Therefore nothing to withdraw from.
“since 1707 Scotland is an equal partner in a bipartite political union that stands over an international treaty”
I just showed you that no international treaty exists.
As for the “equal” bit, I think you have completely misunderstood what was going on at the time.
There were people in Scotland calling for a “federative” union but that was totally unacceptable to the English government, which would only accept an “incorporating” one. “Equality” would be at the level of individual citizens, Scotland and England would both become “Parts” (the term appears in the Acts) of Great Britain.
But clearly not equal “Parts”. The numbers speak for themselves: 45 Scots MPs joining 513 English and Welsh ones. The disparity being exacerbated because the allocations were based on tax revenue rather than population.
You might want to try this article:
https://www.oxforddnb.com/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-9780198614128-e-96282
LikeLike
You say: “In 1706 a copy of the Articles was presented to Queen Anne, signed by the Commissioners from both Parliaments, but that had no legal force”
-Of course not. It was an international treaty that had to be ratified before entering into force by the parliaments of both Kingdoms.
You say: “At no point did Queen Anne sit down and sign a treaty with herself”
-?? And why exactly would she do such thing? What value would that have had? She nominated the commissioners, though. The Claim of Rights 1689 and the Bill of Rights 1689 limited the power of the monarchy. She could not legally impose anything on any of the two parliaments. She could only presented the treaty to them for approval and presenting it to them she did:
quote
“Her majesties’ letter to the parliament
Sic suprascribitur, Anne R[egina]
(records of Scotland’s Parliament, 11 October 1706)
My lords and gentlemen,
Since your last meeting we did nominat commissioners to treat of an union betwixt our two kingdoms of Scotland and England and, by their great care and diligence, a TREATY is happily concluded and laid before us.
We have calld you together as soon as our affairs could permit that the TREATY may be under your consideration in pursuance of the act made in the last session of our parliament there, and we hope the terms will be acceptable to you….”
There you go. Queen Anne herself called it “TREATY (my capitals)”. Are you suggesting the Queen did not know what she was talking about?
You say: “The only documents which ever got Royal Assent were the two Acts of Union”
-Because those are the only elements of domestic legislation. The treaty of union is an international treaty, not domestic legislation. As you can see above, the Queen herself introduced the TREATY to the Parliament of Scotland in the form of a letter.
By the way, the Treaty of Union was not the only treaty between the kingdoms of Scotland and England as you can see from here (Records of Scotland’s Parliament, 15 October 1706):
quote:
“Moved that the articles of union agreed on by the commissioners nominated on the kingdoms of Scotland and England be again read, and also moved that the minuts of proceedings of the said commissioners be likeways read and, after some reasoning, it was agreed that the said articles of union should be read, AND ORDERED THAT ALL RECORDS RELATING TO FORMER TREATIES BETWIXT THE TWO KINGDOMS BE LAID ON THE TABLE (my capitals) and, in the intervalls of parliament, they be to be seen in the laigh parliament house where some of my lord register’s servants are to attend.”
You say: ” the position is that for a few months – between the agreement of the Articles and the passing of the Acts – there was a “draft treaty”, ”
-A “draft treaty”? The treaty ceased to be a draft the minute the parliament of Scotland included its amendments and approved the articles WITH THOSE AMENDMENTS. The act of union with England (domestic legislation) could not be passed unless the treaty was agreed by the Parliament of Scotland first.
You say: “Therefore nothing to withdraw from”
-Are you claiming then that the union never existed and Scotland has always been a sovereign state?
I think that now you are just being ridiculous.
You say: “I just showed you that no international treaty exists”
-No you have not done anything of the sort. As you can see from above, Queen Anne herself introduced the TREATY by letter.
You say: “As per the equal bit, I think you have completely misunderstood what was going on at the time”
-Nope, I haven’t. This is quoted directly from the Old Parliament of Scotland (4 November 1706):
quote:
“Procedure: debate, resolutions concerning putting the first article of union to a vote
Thereafter the first article of union was again read, as also the motion mentioned in the last minute relating thereto, viz. that it be agreed to in the first place to proceed to take the first article of union to consideration, with this provision: that if the other articles of union be not adjusted by the parliament, then the agreeing to and approving of the first shall be of no effect, and that immediatly after the said first article the parliament will proceed to an act for security of the doctrine, discipline, worship and government of the church as now by law established within this kingdom. And, after some further debate upon the said article, a resolve was offered in thir terms, viz. Whereas it evidently appears, since the printing, publishing and considering of the articles of treaty now before this house, this nation seems generally averse to this incorporating union in the terms now before us as subversive of the sovereignty, fundamental constitution and Claim of Right of this kingdom, and as threatning ruin to this church as by law established; and since it is plain that if an union were agreed to in these terms by this parliament, and accepted of by the parliament of England, it would in no sort answer the peaceable and friendly ends proposed by an union, but would, on the contrare, creat such dismall distractions and animosities amongst ourselves and such jealousies and mistakes betwixt us and our neighbours as would involve these nations into fatal breaches and confusions, THEREFORE, RESOLVED THAT WE ARE WILLING TO ENTER INO SUCH AN UNION WITH OUR NEIGHBOURS OF ENGLAND AS SHALL UNITE US INTIRELY, AND AFTER THE MOST STRICT MANNER IN ALL THEIR AND OUR INTERESTS OF SUCCESSION, WARRS, ALLIANCES AND TRADE, RESERVING TO US THE SOVEREIGNTY AND INDEPENDENCE OF OUR CROWN AND MONARCHIE, AND IMMUNITIES OF THE KINGDOM AND THE CONSTITUTION AND FRAME OF THE GOVERNMENT BOTH OF THE CHURCH AND STATE, AS THEY STAND NOW ESTABLISHED BY OUR FUNDAMENTAL CONSTITUTION, OUR CLAIM OF RIGHT AND BY OUR LAWS FOLLOWING THEREUPON (my capitals). Or, resolved that we will proceed to settle the same succession with England upon such conditions and regulations of government within ourselves as shall effectually secure the sovereignity and independency of this crown and kingdom and the indissolvable society of the same, with the fundamental rights and constitution of the government both of church and state as the same stands established by the Claim of Right and other laws and statutes of this kingdom”
You say: ““Equality” would be at the level of individual citizens”
-Nope. Read again the quote from the Scottish Parliament above. It refers to the isovereignty and independence of the Kingdom, the constitution and frames of government both church and state.
“Scotland and England would both become “Parts” (the term appears in the Acts) of Great Britain”
-As much as the EU countries are “parts” of the European Union.
“But clearly not equal “Parts”. The numbers speak for themselves”
-Equal parts as much as Germany and Portugal are equal parts in the European Union.
“You might want to try this article”
-No, thank you. I much prefer to read the actual records of the Parliament of Scotland. That article is an England-centric interpretation of history, like most of what is out there. The records of Parliament are the real deal and that is what I wish to read. But thank you for your consideration, though.
LikeLiked by 5 people
“This is quoted directly from the Old Parliament of Scotland (4 November 1706):”
Irrelevant. Completely over-ridden by the actual passing of the Act on 16 Jan 1707.
LikeLike
@Sparks
You say: “Irrelevant. Completely over-ridden by the actual passing of the Act on 16 Jan 1707”
You cannot “override” international law with domestic law. The ratification of a Treaty between two independent, sovereign states falls within the umbrella of international law. An Act to incorporate an international treaty into domestic law is just that, domestic law. The first Article of the union was approved by the Parliament of Scotland on the 4th November 1706, not 16 January 1707.
That quote you so much dislike is very relevant because it demonstrates the frame of mind of the MPs at the time the Treaty of Union was presented to them. That quote demonstrates very clearly that the opposition to the union, even among the MPs themselves, was such, that in order to be able to move forward with the process of debating and the articles of the treaty of union, the supporters of the union had no other choice but to compromise. The article was approved on that motion that quote refers to, otherwise that first article and in consequence all the rest, because the first article was the first one approved, would have never been approved. So any anglo-centric made up story that Scotland’s MPs were so corrupt that rushed to pass the treaty is absolute bollocks.
That domestic piece of legislation called “Act of Union with England” would have never even see the light of day if the Treaty had not been ratified by the Parliament of Scotland. That quote, indicates that the Treaty of Union was ratified on the assumption that the sovereignty and independence of the Scottish crown and monarchy was reserved to Scotland together with the rights of the kingdom, constitution and frame of government both of church and state as they stood in 1706 established by the Claim of Right 1689 and the laws which followed from it.
What that quote shows is that the claim by England MPs that they hold the sovereignty of Scotland in any way or form is absolute bollocks of the highest order and nothing but an attempt to re-write history.
There is nothing irrelevant on that quote. There is nothing relevant in ANY paragraph from the records of the old Parliament of Scotland because they show exactly the frame of mind of those debating in parliament and not the anglo-centric version the union supporters are so desperate for us to believe it was.
There are plenty of signs the MPs were under duress to pass the articles of the Treaty of Union and under threat of military intervention if they did not. Many were also bribed. If you take a look at the Vienna Convention of the Law of Treaties, those two are reasons why a treaty under international law can be immediately declared void. Why is this important? Because we are expected now to believe that we can only exit that treaty if we meet the highest standards of democracy, yet, by today’s standards, that treaty would have been declared unlawful and void the minute it was ratified so dodgy were the conditions under which it was ratified.
Let me remind you of your own words:
“I think you have completely misunderstood what was going on at the time” .
That quote from the old parliament above shows I have not misunderstood anything, you have. I am going directly to the source that tells us exactly what was going on at the time and in which circumstances that Treaty was ratified. Clearly you don’t like the records of the Old Parliament of Scotland to be quoted back at you because they completely trash the anglo-centric version that fits your narrative and that basically is that Scotland’s MPs sold Scotland because they were corrupt and spineless therefore we simply have to accept it.
The opposition to an incorporating union was such that the MPs themselves were fearing for their lives. You can see that from the records of the parliament too, as you can see the continuous addresses against the union, not only from MPs but from members of the public as well. The addresses against the union were coming thick and fast. And this is why now demanding a majority of the vote as the only route to exit this union is so incredibly hypocritical and unfair.
LikeLiked by 5 people
Apologies for the mis-typing.
When I say in my comment above “there is nothing relevant in ANY paragraph from the records of the old Parliament of Scotland because they show…”, Clearly, what I meant to write is “here is nothing IRRELEVANT in ANY paragraph from the records of the old Parliament of Scotland because they show…”
LikeLiked by 3 people
The People decide a Nations future. It is not Courts or Politicians.
We simply need a leader who believes that the Scottish People are Sovereign.
“Were the hand of Locke to hold from heaven a scheme of government most perfectly adapted to the nature and capabilities of the Irish nation, it would drop to the ground a mere sounding scroll were there no other means of giving it effect than its intrinsic excellence. All true Irishmen agree in what ought to be done, but how to get it done is the question.”
– Secret Manifesto (Ireland), 1793.
How to get it done
That will not be by the SNP.
LikeLiked by 6 people