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By Jason Michael
THE PURPOSE OF THE LAW in every state is first and foremost to safeguard the state as it is presently constituted. In the United Kingdom this means the most important function of British law is to preserve the integrity of the state – that is to keep the ruling establishment in power and to keep all constituent parts of the United Kingdom subject to the British state. But many, even within the Scottish independence movement, will argue with this point; saying there is no such thing as ‘British law.’ They are, of course, misinformed. British law does exist. Scotland’s 1707 union with England ensured the continuation of Scots law as a separate legal system to that of England and Wales within the United Kingdom, but within the British state the Scottish legal system has always been limited. It does not, for example, have power over the constitution. As of October 2009, the inferior status of Scotland’s legal system was for the first time made legally explicit with the establishment of the Supreme Court – meaning, the highest court in Scotland would be in London.
Scotland does have its own legal system and, for the purposes of public law – criminal law for example, cases tried in Scotland are tried in accordance with Scots law and procedure, but when laws are applicable to all British citizens – such as constitutional and tax law – we are within the domain of British law. In matters relating to the constitution and to Scotland’s subservient position within the union, Scots law is entirely subject to British law. It is this powerlessness of Scots law over the constitution and the unlimited power of British law over and against Scotland and the legality of independence to which I refer when I say there exists absolutely no legal route to independence. In theory, we can use British law as a framework by which to wage a legal campaign for independence – for dissolving the union, but this exists only in theory. In reality, British law is entirely subject to the will of the British parliament; Westminster, the arithmetic of which ensures the absolute numerical domination of Scotland, Wales, and the north of Ireland by a majority of English MPs.
Theoretically, we can imagine a scenario in which, with good legal argument and appeal to the Treaty of Union, Scottish lawyers might be able to construct a case that would give the Scottish parliament grounds to rescind the union – legally. But such assumes the law to be a static or unchanging monolith, something it certainly is not. The United Kingdom has no written constitution, making the British constitution one of the most flexible state constitutions in the world – a flexibility wholly subject to the majority in the House of Commons, and bearing in mind that 82 per cent of Westminster MPs are English – this will always reflect England’s priorities over those of Scotland, Wales, and the occupied counties in the north of Ireland. Westminster can amend – change the goalposts of – British law at any time, and it will do this the closer Scotland gets to securing independence by legal means. The same applies to Wales and the north of Ireland.
In sum, for as long as Scotland and its valuable natural resources are of economic and strategic value to the British state, the law will function to preserve the integrity of the British state – even if that means denying the democratic will of the majority of Scottish people. The familiar argument against this assertion; that we had an independence referendum in September 2014, is a facile one. Scotland was granted an independence referendum in 2012 by David Cameron, a serial gambler, in the assumption – that with about 20 per cent of Scotland in favour of independence – we would lose. We did lose, but the campaign brought support up to 45 per cent for independence. With somewhere between 45 and 50 per cent now supporting the idea of self-determination, we can be sure England will not take such a risk again. As far as England is concerned, 2014 was a mistake – an error in judgement that will not be repeated. That the leader of the Unionist Party in Scotland and every contender for Number 10 in London have said they will refuse Scotland another referendum proves this point. The law will always be used to subjugate Scotland. Enzo Traverso makes this same point of the use of law by colonial powers:
It is in India, Congo, Algeria, and Libya that territorial expansion was practised as a form of general uprooting of indigenous population, conquest identified with a natural process of the annihilation of ‘lower races,’ and imperial power introduced as a juridical and political dispositive based on hierarchical relations between metropolitan citizens and colonial subjects.
Scotland is not India, Congo, Algeria, or Libya, but the same essential mechanism of control remains the same: Imperial power has been introduced as a system of law over which colonial subjects have no power. Unlike the completely dehumanised and racialised colonial subjects of India, Congo, Algeria, and Libya, Scotland has the illusion of power. We have a 9 per cent say in the House of Commons – just enough power to have precisely no say in the shaping of British law. Some will argue that Scotland’s understanding of popular sovereignty protects us and that the Claim of Right – the right of the Scottish people to determine the form of government best suited to their needs – opens up a legal route to independence, but Westminster is bound by neither of these un-English notions. Scotland can claim rights all it likes, but in British law only the Crown in Parliament is sovereign.
Granted, this is a bleak assessment of our condition as a subject nation of the United Kingdom – qua Greater England, but it is realistic. So long as we remain within the United Kingdom and constitutionally subject to British law there is no legal route to independence. Yet, this is not to say that there is no route to independence. There is. We Scots have a peculiar relationship with the law. We are quite obedient. We have a cultural idea of respectability that makes any impression of illegality unacceptable. Growing up in a Scottish working-class housing estate, the greatest crime was “bringing the polis tae the door.” As a national community we have inherited a cultural reluctance to be thought of as lawbreakers, a trait that makes the next step to independence psychologically challenging – we’re going to have to break the law. But we needn’t think of this as breaking the law at all, it’s not our law. What is required is that we assert our law, our idea of national sovereignty, and our claim of right over British law. This is perfectly consistent with Scots law, but it will be illegal as far as London is concerned.
This was how India secured its independence. It was also how Ireland won its independence. Both the campaign for independence in India and the struggle in Ireland grasped the absolute impossibility of independence under the legal framework imposed on them by the British imperial-colonial regime. In Ireland, Michael Collins – the man who negotiated the Anglo-Irish Treaty – was explicit about Ireland’s resistance to British rule: “We defeat the British Empire by ignoring it.” Gandhi’s philosophy of non-violent refusal to coöperate amounted to the same thing – Britain has no power over us when we refuse to acknowledge its power over us. In this sense, by accepting Britain’s claim on us, we have become our own slave masters. British governmentality – the process by which a state forms its citizens – has conditioned us to submit to its power. But this power is merely the illusion of power. At the very moment we refuse to be governed by what is a foreign law and an alien concept of sovereignty, that power has no more control over us. Scots law and our Claim of Right are real, as is the absolute sovereignty of the Scottish people. Independence is only as far from us as our willingness to assert our sovereign rights and our freedom.
Claim of Right Debate – 4th July 2018
26 thoughts on “No Legal Route to Independence”
But Colins didn’t ignore the British state. He confronted it in a particular way. The Irish example is not in fact the one which we should even be thinking of following.
The only extra legal means would be civil disobedience, and I doubt whether at the moment that would be the appetite for that among a sufficient number of people to make it realistic. However I remember many years ago making my self unpopular by saying that Scotland will get her independence when England get fed up with us. Now of course the English politicians have made a big mistake in suggesting that Scotland is a basket case, so post Brexit when things get hard we will see what the English will do.
This could be aided with an insurgenist SNP who assuming there is an election in October have 50+ seats in Westminster, simply refuse to treat with any of the UK parties. (The assumption being that there is no majority) and sit in Edinburgh and occasionally descend on Westminster to wreck what piece of legislation is going through.
I remember (just) a most interesting drinking session I was at in the Silver Swan on the Keys in 1970. The persona dramatica were senior employee of the Irish Press. A Trinity Academic with FF leanings. a PhD student and me. It was explained to me why Jack Lynch would hate a United Ireland as there would be the probability of Unionists sitting in Belfast with enough members to swing the Dail who would descend and wreck havoc in votes. It has been a model which has stayed with me, and just perhaps it could work for Scotland.
I know too much about the history of Ireland 1900 to 1923 to have any illusion that that has any future as a model for Scotland. Now Norway during the same period? That is a different question totally.
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Michael Collins did indeed ignore the British state. He lived as though the Republic established in 1916 was already a reality. In accordance with that conviction he fought to defend it when the British government in 1919 violently attacked the Irish Republic. There is no ‘Irish example,’ rather Irish examples – all of which began with the refusal on the part of the British coloniser to accept Ireland’s demands. Even today international law defends the actions of Ireland. It was subject to foreign rule, genocide, and outright criminality. What you call here the Irish example is in fact the British example. Ireland and Irish people never brought violence to Ireland. They fought tyranny to restore peace and the rule of law. Blaming this on Ireland and Irish people is victim blaming, because it frames the people of Ireland as the violent party – which they never were. When Britain brings physical violence to Scotland, must we sit down and take it for fear of being like the Irish? No, we must fight to defend ourselves – and that is not ‘violence’ by any definition.
Edward – Indeed Norway is the ideal here, but even that most unanimous, constitutional and friendly of breaks, 1906 from Sweden, was preceded by “illegal” activity culminating in a brief war. The Norwegians grasped their chance through unauthorised diplomatic and international business arrangements that provoked the Swedes to military action, almost immediately regretted and stopped. The plebiscite followed, with over 99% favouring independence.
Had Norway been richer (a largely peasant economy with a century of neglect and emigration behind it, and no oil of course), less entrepreneurial (their US trade / merchant marine links were frustrated by Swedish trade strategy preference for the Baltic), and the Swedes less pragmatic and realistic (the Swedes had accepted their empire was finished); had all these things not been ready in 1905 then Norway would probably still be part of a greater Sweden.
Now fast forward to Scotland 2020. We’re not in such a good position as Norway on all these points, except maybe the business enterprise, and yet we expect to achieve independence without the illegal provocations that Norway had to pursue. Jason’s article brings out this likelihood well, and I’m afraid Scotland will meet a crisis of decision on this point of disobedience in the next few months. Norway’s experience shows it needn’t involve (much) bloodshed or falling out, but then again Britain is not Scandinavia.
Jason, your post are so lit at the moment. Don’t stop.
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For a while, I was worried that I was being told to ‘sit down and take it’ , but you have clarified the meaning here.
In whatever way we can, we must make Scotland ungovernable for our oppressors.
And I have no doubt their psychological and economic abuse will become physical.
But that has worked so well for them here in the past…
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You won’t ever get ‘sit down and take it’ from me. But yes, our job is to make Scotland ungovernable.
Edward Andrews states, “Now of course the English politicians have made a big mistake in suggesting that Scotland is a basket case, so post Brexit when things get hard we will see what the English will do.”
It seems to me that we need to encourage the English to continue to believe that they subsidise us while showing the Scots that Scotland actually subsidises England. There needs to be something more trustworthy than GERS to give a detailed account of Scotland’s income and expenditure. The Scottish People need to become accurately informed. Why does the Scottish Government not undertake such an account? This is not a new proposal!
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Jason, in British (English) Law there may be no legal route to independence, but how do you respond to Craig Murray’s claim that the Scottish Parliament does have the right to withdraw from the Act of Union? https://www.craigmurray.org.uk/archives/2018/12/the-scottish-parliament-does-have-the-right-to-withdraw-from-the-act-of-union/?fbclid=IwAR1qusDGh12Jqivd6-GcnVSaOF3iy9loIUepK5da2W5Fl5hHZ4k82pwyJdI
It can’t possibly, not if Westminster sees itself as the only source of sovereign power.
Jason you reply, “It can’t possibly, not if Westminster sees itself as the only source of sovereign power.” Craig argues that under International Law the Scottish Parliament has the right to withdraw from the Act of Union. So, no matter what claims to unlimited sovereignty the English parliament of the UK makes for itself, is it not the case that International Law supersedes it?
No oppressing state ever makes it legal for the subordinate one to become independent.
That is the reality we have to deal with, and should be dealing with.
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There isno such thing as British law. That is simple fact. You cannot study it for it does not exist. The English Supreme court sits in violation of the terms of the 1707 trade agreement which were drawn up by the Queen’s commissioners and merely ratified by parliament, as it states that no law passed in England can be imposed on Scotland and vice versa including by Whitehall. The mistake folk make and compound upon is in the assumption that it was a political union which gave dominion to the English establishment thus incorporating the English constitution and method of governance. This mistake is further compounded by the English party political system which was set up in the state parliament when it was usurped by the English establishment but the terms are quite specific and state that both countries are equal partners with equal authority. For anyone to conclude that Scotland is inferior to the English establishment is to commit a most heinous error. In addition, all rights prior to and after the signing were to be fully upheld which included the independence and sovereignty of both countries. It was only the statehood of both countries that was ceded. This is why the English establishment exercise both on a daily basis.
In addition, there is no constitution of Great Britain, no state government, no party political system, no Great British law and no Great British army. These do not exist within the terms of the 1707 Agreements as it was only ever a trade Agreement. In order to prevent the errors frpm further being compounded upon one should first stop treating Scotland as a colony of England and start from the correct position of independent countries in a trade partnership with equal authority.
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If only it worked that way in practice.
If Westminster hasn’t got the message after their debacle with the EU and it’s negotiators over Brexit then must be fools. Surely by now they must begin to realise that they are not the powerful nation they once were. If Westminster tries to shut down a “democraticaly elected” parliament at Holyrood then that proves they have lost all moral right to govern. Whatever happens the Scottish parliament must continue to sit whether at Holyrood or elsewhere. Democracy must be preserved at all costs.
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Reblogged this on Ramblings of a 50+ Female.
I have said long and hard that we should claim u.d. I. Can we? Also can we refuse to send any monies to Westminster
If this was the American Colonies and the Westminster Parliament stuck two fingers up to it then a War of Independence would happen! Wait a minute the American Colonies Did Declare War against the Westminster Parliament in 1776 And Won! Even though they were Outnumbered!
If the next PM refuses to grant Scotland a Section 30 then I seriously Advocate that We copy Oor American Cousins of 1776!
wemust claim our right as a sovereign nation for the sake of our children and their future
When I was reading this information my heart was sinking to my toes but as I read on and got to the part of Gandhi speaking I b fan to feel hope and as I read on again my spirits lifted and getting to the end of your very informed letter I was smiling there is still hope for us to gain our Independence for and on b half Scotland and her people I hope and pray we will have our wishes granted
Let’s get on with it then and the sooner the better.
This is a helpful framework for the better growth of understanding the status quo. I would wish to know the extent of the reach of its message, and to learn how it sits at independence campaign management level. Glad to have come across it.
So what exactly are you suggesting we do??
Break the law!
This is where I have thought that the Scotgov should be challenging reserved powers. For example broadcasting and media. The single biggest barrier to our success.
There is no reason why the Scotgov should play ball on this. Indeed they do not even have to break “their” laws to do so. Technology, online, app based allows for broadcasting to be delivered using other means. indeed tv in the traditional sense is on the decline. The thibg is the SNP gov sees being a nice responsible governement will impress the sytem into trusting them to run a country. It hasn’t and it wont.
Everyone is talking about the law. They may be mixed up thinking that statutes are law. They are not. We are a common law country.
We are policed by consent. The statutes or acts of parliament are the rules of a corporation. The government is registered as a corporation at companies house, Theresa May is the CEO. You wouldn’t obey the statutes of a supermarket or your local ironmonger so why obey the governments rules?
The common law is in us all. We naturally know the difference between right and wrong so just a tiny handful of rules keeps us from annihilating each other.
If some burly copper says ignorance of the law is no excuse he means statutes. There are nearly 3 million of them and you could be forgiven if you cant remember them all. But ignorance of the common law is no excuse at all as there is only a few rules to remember.
The supreme court needs your consent to work. The court is never above a sovereign human being.