Tweet Follow @RPJblog
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.
When we learn that British law - which is English law over Scotland - has no power over us, the road to independenc… twitter.com/i/web/status/1…—
Jason Michael (@Jeggit) June 23, 2019
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.
A lesson from Gandhi and Indian independence: The country that refuses to be governed will never be ruled. https://t.co/9fUhprg4Km—
Jason Michael (@Jeggit) June 23, 2019
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