By Alasdair Galloway
There is a widely held, and often well-informed view that Scotland retains its sovereignty, and indeed that this is in the control of the people – ie unlike England where the tradition is for the monarch to hold sovereignty, so that often the power of the House of the Commons is described as “the monarch in Parliament”.
This was a matter of historical development, but in England it was formalised as a consequence of ‘the Glorious Revolution’ when James VII (or II) was deposed, as part of the deal that brought William and Mary to the throne in 1688. Crucially of course this preceded the Union so the “Monarch in Parliament” tradition was an established fact before 1707. A particularly significant airing of the differences of opinion was in 1953 when John McCormick claimed that Westminster breached the basic law of the Treaty of Union of 1707 when the Royal Titles Act 1953 was passed allowing the, the new Queen as she was then, to adopt the style of Elizabeth II, even though Scotland had never had an Elizabeth I, only England. McCormick argued that the passage of the Act demonstrated the excessive power of the Parliament. The Court of Session however still dismissed the case based on the jury’s ruling that parliamentary sovereignty was a basic principle of Scottish constitutional law. The case gained considerable attention not only due to its commitment to the Scottish indigeneity, but also due to the controversial dissenting opinion of Lord Cooper, the Lord President of the Court of Session.
In part this read, “The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.”
I would only add that there is an argument that his concluding sentence is quite wrong – it is arguable that all that did happen in practice (particularly in the English mind) was that “Scottish representatives were admitted to the Parliament of England”, albeit this was called something else by that time. Moreover, Cooper goes on to ask, “it is of little avail to ask whether the Parliament of Great Britain “can” do this thing or that, without going on to inquire who can stop them if they do”. The issue is not merely whether a particular court has jurisdiction, or it can be persuaded that they do, but what is to stop them if they decide they do have the jurisdiction claimed, who or what is to stop them if they come to this conclusion. I think, for instance, it could hardly be clearer that the UK Supreme Court is utterly wedded to the proposition that in the UK in law the House of Commons is in practice the sovereign entiry (though not only its ‘executive’, the Cabinet), tradition in our part of the Union being different.
Cooper is making a critical point here, that law is full of uncertainties on which courts/ judges have to rule. Whatever their decision, one side of the dispute will usually be disappointed, disagreeing with the court. But, what, unless their judgement is wholly contrary to existing law, is there to prevent the court from so ruling? Indeed if you adopt a ‘Johnsonian’ view of law as a convenience, even then. Some may feel the court is making an error, but “who can stop them if they do” to quote Cooper again. This is the difference between theories of law, which will be diverse and often conflicting or at least inconsistent, and law in operation. Indeed, the corollary of this is another legal problem – does the court have the capability to enforce their decision(s)?
There is a view in the independence movement to the effect that the sovereignty of the Scottish people was not extinguished in 1707, a view which Cooper has given some comfort to, that our tradition differs from that in England. However, what he says subsequently recognises that in practice we have to accept this, unless there is a way to prevent it. I would argue that there is little doubt, in our present circumstances, however outraged some commentators might be by this that we do not. A fine example of exactly this sort of view was published this morning by Peter Bell in his critique (https://peterabell.scot/2023/10/01/red-highlighter/) of the plan published by Robin McAlpine in the National over the weekend (https://www.thenational.scot/news/23824588.robin-mcalpine-plan-will-win-independence-10-years/).
There is much to criticise about McAlpine’s plan. For instance, he quite cheerfully suggests that all the independence movement needs to do is “assemble a network of around 150,000 activists who will be organised and fed lines and arguments to push the case for independence in tailored ways which relate to local or personal issues for “targets”. Beyond the fact that Bernie Saunders did this with some success when running for President, there is no indication of how these 150,000 will be recruited, particularly given the disputatiousness for which the independence movement is increasingly known. Nor, even if they can be recruited, there is no indication of exactly how their “work” will be done much beyond that they “will be organised and fed lines and arguments to push the case for independence in tailored ways which relate to local or personal issues for “targets. This could be done through “social media, direct messaging – it could be email, it could be fucking carrier pigeon”, or everyday conversations at the school gates, pubs and so on. These agents would be briefed using research informed by behavioural psychology and granular research into the kinds of people the campaign thinks are winnable, informed by something called psychographics, which builds up pictures of voters by rating them on values, desires and ambitions.”
As a retired academic, this all sounds great – fantastically well organised and thought out, but rather like the Courts, while it could be done, can it be done? How will it actually work? So, on that part of McAlpine’s paper I largely agree with a single caveat – that McAlpine points to major aims that the independence movement should be looking to address. For instance, while his suggestion of 150,000 influencers is over-engineered, it is necessary to increase support whether formally as McAlpine suggests or more informally. This happened in 2014 when support increased from 28% to almost 45%, and not because of the incompetence of Better Together alone. Community work by Yes Scotland played a role as the photograph above of Buchanan Street on the Saturday before the vote illustrates.
I also have great sympathy for the second part of his plan, to create a “national commission” of independent experts to work out the answers to what Scotland must do on day one of independence. They will formulate concrete policies on currency, pensions and the other issues over which political parties tie themselves in knots”. In fact, if I have doubts about this, and being acquainted with several “experts” who would be delighted to be so involved, it’s because in the 9 years since the vote, they never have been asked. My doubts centre on the willingness of the SNP to do this and only increases with time. In fact, in my view, one of the major strategic errors made by the SNP was the precipitate way they closed down Yes Scotland, rather than turn it into a low cost think tank/ debating site – but then, just as they lost control of Yes Scotland during the referendum, that situation might well persist.
However, what irks Bell more than anything else is that McAlpine “supposes that Scotland’s independence – or constitutional normality – is something owned or held by the British state and that it is for the British state to grant or bestow our independence on condition that we satisfy conditions determined by the British state.”. This, Bell claims, is “an attitude which puts Westminster front and centre where the people should be”.
It is arguable that in legal theory at least Bell is right, but the argument is much more thoroughly thought out and eloquently presented by such as Salvo which argues “The Union of Scotland and England is built on a lie. The lie is that the UK parliament has sovereignty over Scotland. It doesn’t. It’s a lie. But the lie was necessary for the UK to shackle and subjugate Scotland.”
The attraction of this argument is, I think, clear. Many would be delighted to find that independence lies within the powers of the Scottish people themselves without any external interference. This is supplemented by well researched and considered arguments by Sarah Salyers, for instance in “Scotland’s Kidnapping, Plunder and Forced & Fake Marriage (or Union)” (https://salvo.scot/scotlands-kidnapping-plunder-and-forced-fake-marriage-or-union/) she writes, “My current preoccupation is with the wearyingly regular criticism of Salvo’s focus on ‘hoary/old/archaic, disused, irrelevant, historical Scottish institutions, documents, laws and statutes’, spouted by the so confident but so thoroughly and obliviously duped victims turned perpetrators of the gaslighting. They counter the message of Salvo with the enticingly rational and reassuring dismissal: ‘You see, we need to leave all that pointless – if interesting – ancient history behind us and get our independence through modern, diplomatic strategies and possibly international law.”
I might not be quite so hard on the theoretical argument based on “documents, laws and statutes”, but certainly her argument never considers that, even if it was put into Court which decided in Salvo’s favour (International Court of Justice – ICJ – is one target), at best we cannot be sure about how a judgement would be enforced. In the case of ICJ, it might be that it can make decisions, but can it enforce it? Or put another way, what can it do to make the UK implement the decision, which it hasn’t done in the cases brought by Mauritius and the Chagos Islands.
Salvo’s is an interesting and well-conceived approach, but if it achieves little or nothing to take independence forward in a practical way, should we not be looking elsewhere to carry on moving things forward? It may be that, as a foundation to the case for independence, it can be argued we should assert the sovereignty of the Scottish people. But the problem is that anyone arguing differently from this article of faith, that we need to recognise that a Court judgement may not on its own fulfil our independence aims is beyond the pail. Certainly it should not be responded to, as Bell does, with the claim that such argument “conceives of independence as a prize awarded for jumping through all the hoops the British state might contrive. It betrays the mindset which sees independence as something that would be nice to have if only we could be deserving of it in the eyes of the beneficent ruling elites of England-as-Britain”. This changes a well-researched and considered position to an argument of faith which you disagree with at your risk. Hardly the basis of an effectively unified movement. We may disagree on certain issues, but these are disagreements not divisions.
Scotland’s current situation is as part of the UK, subject to the authority of its Supreme Court which reaffirms to each and every opportunity that the House of Commons is sovereign. We might not agree with this. We may consider it wrong, but we need to recognize its reality. While a successful court case (eg at ICJ) may be useful to make better known Scotland’s claim for independence, it is unlikely to be sufficient. We are where we are. The next task is how we can – in practice, not just legal theory – we can move away from this and toward our independence aim.
Talking-up Scotland 'Albatraz' 
The answer to your final question has been around for some time.
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Really? This well illustrates what I’m on about. Bell sets out a number of steps. The first of these is to “Affirm Scotland’s status as a distinct nation and the sovereignty of Scotland’s people and the right of self-determination that necessarily flows from this”. OK, we could do this. Get someone to make an announcement to this effect but whose listening? Who cares? How much practical effect would this have? We already know that the Supreme Court considers sovereignty to be in the House of Commons. We/ you/ Peter Bell might well not agree, but in the context of government in the UK it’s the HoC. So, while Bell’s argument may be legally justified, the problem is going to be its enforcement to have practical effect.
Moving on to the second stage, which is to “Repudiate the Section 30 process as an unwarranted and unlawful constraint on the right of self-determination vested in the sovereign people of Scotland and a denial of popular sovereignty.” I like the casual way that UK law is simply torn up and thrown away as no more than an irrelevant detail, when the fact is that we either find a means by which the legal argument on which Bell and others depend can be enforced, or we have to accept that we are where we are. Pretending that an inability to enforce doesnt matter – or to argue that enforcement can take the form of an argument of legal theory in a conflict of laws – is a cruel hoax.
In short, I dont see anything in Bell’s argument that would cause me to change my mind. I am happy to concede that their argument in legal theory has legs, but the issue is how to enforce this. It’s not only a matter of a convincing legal argument based on the available evidence, which I concede is necessary. But for sufficiency there must also be a means of putting the argument into effect.
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#ScottishUDI works as a whole. Taking bits out of context is misleading, if not dishonest.
You exhibit all the traits of the very thoroughly colonised mind. A profound inability to conceive of Scotland having a legal and constitutional framework of its own. Even less capacity to conceive of anything that is ‘only Scottish’ taking precedence over the divinely-ordained supremacy of the British ruling elite. Like all of Scotland’s politicians – with no exceptions that I am aware of – you defer to Westminster in all things and at all times.
The attitude you evince is not just horribly cringey, it denies the reality of how power works. You have it until you lose it. You don’t have it unless you take it. The British state – or England-as-Britain – only has the power it does in Scotland because it took that power. It continues to have that power until that power is taken from it in exactly the same way as it acquired that power. Power is not given. Power is only taken. Power is only held so long as it can defend itself against challenges from those who would take it. Or if it goes unchallenged because those who might challenge it have been manipulated into believing it would be wrong and/or futile to mount any challenge.
The new thinking on the constitutional issue is bound to be beyond the grasp of the colonised mind. That mind must be decolonised in a prior or parallel process. It begins with questioning the Union and the political authority which it legitimises. As its basis is interrogated, that authority diminishes, leaving space for the idea that something other is possible after all. If the British state does not have the legitimate authority it asserts, then who does? If the Union is not a sound basis for political authority, what is?
That an alternative and more legitimate basis for political authority in Scotland exists is a matter of established fact. We have our own legal and constitutional framework. It is just a matter of deciding which should be considered legitimate. The tendency is for the colonised mind to reject without reflection the possibility of anything being more legitimate than the British state. There are promising signs that increasing numbers of people are opening their minds to the new thinking. This is a process that can only run in one direction.
As to the means of putting this new thinking into effect, #ScottishUDI is perfectly clear that this must be the Scottish Parliament, or an entity created and authorised by the Scottish Parliament. This a simple matter of democratic legitimacy. If the people of Scotland are sovereign – which we are; and if the parliament is elected in a transparently democratic manner – which it is; then the democratic legitimacy of the Scottish Parliament is beyond question. Also beyond argument is the superior democratic legitimacy of the Scottish Parliament relative to the parliament which has usurped the political authority that stems from democratic legitimacy – Westminster.
Westminster has this authority, not by right, but by assertion. The Scottish Parliament – the only democratically legitimate parliament for Scotland – has a prior and superior claim to that authority on account of the exclusive democratic legitimacy it derives from the sovereign people of Scotland. A claim supported by a Scottish legal and constitutional framework that predates the Union and, crucially, was NOT extinguished or superseded by the Union. On the contrary, it was specifically left intact as a provision of the Treaty of Union.
The question is not how the new thinking can be given political effect, but why this has not happened long since.
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Peter, a million thanks for this. Why? Well, depending on how much you did actually read, you could have come across this – “But the problem is that anyone arguing differently from this article of faith, that we need to recognise that a Court judgement may not on its own fulfil our independence aims is beyond the pail.”. Or this “This changes a well-researched and considered position to an argument of faith which you disagree with at your risk. Hardly the basis of an effectively unified movement. We may disagree on certain issues, but these are disagreements not divisions.”
So, in response, I get the following “reply” (or would “abuse” not be more apt?) – that I have thoroughly colonised mind which is incapable of understanding far less appreciating the “new thinking” which you espouse. (I’ll pass on the claim of “dishonesty” though I consider that worryingly ad hominem, and really does demand more proof than “I dont agree with you”.)
If that were all, I would simply move on, but Peter is the personal abuse and contempt really necessary?
Contrast your style with my own. I make clear – oh I do – my agreement with Salvo’s legal argument. That is not my contention. My problem is with how you enforce this legal argument? Where? What court? Assuming the legal claim is successful, how would it be enforced? Who by? What would the collateral damage be? Or do you really believe that Westminster, faced with a negative judgement – that should actually be another negative judgement – from, say, the ICJ is going to doff its cap and say “off you go lads”? Having eschewed abuse, I’m sorry to say that when I read “The attitude you evince is not just horribly cringey, it denies the reality of how power works. You have it until you lose it. You don’t have it unless you take it.” I did laugh. Peter, we have lost it. In effect that happened in 1707. England may have dissed that agreement several times now, but the fact is that they could. How are we going to take it back?
Let’s explore that one blow by blow. What actions will be taken to take that power back. I stand by my view that there is no legal means with enforcement that is open to us, so what is the alternative? A hundred years ago Ireland became independent after a Civil War. Please tell me you dont want to go down that road? It’s not that there arent alternatives. You might be contemptuous of McAlpine’s paper, and I have my own reservations of parts of it, but he is right that we really dont want to go there, and that the way forward is demonstrating the settled will of the Scottish people is independence- however long that might take!
I have set out my views at some length in the original, and I’m not going to repeat myself, and all your contribution does is to juxtapose itself against that, but at no point engages with it, other than the abusive content you have included (“colonised mind” etc).
You write “That [colonised] mind must be decolonised in a prior or parallel process. It begins with questioning the Union and the political authority which it legitimises”. Please advise how anyone who supports independence can do so without questioning – and indeed rejecting – the Union? To do otherwise would be a very severe cognitive dissonance!
You write “the democratic legitimacy of the Scottish Parliament is beyond question. Also beyond argument is the superior democratic legitimacy of the Scottish Parliament relative to the parliament which has usurped the political authority that stems from democratic legitimacy – Westminster.
Westminster has this authority, not by right, but by assertion”
Much of this is arguably correct in legal theory, but when you say “Westminster has this authority” you “let the cat out of the bag” (to quote my MSP Dame Jackie Baillie) dont you. Westminster may have secured this authority by assertion rather than legal right (I would probably be happier with “custom and practice” because how the Union played out always was much more like a takeover), but they have this authority.
Thus, to conclude, or repeat what are you (we) going to do about it? A well conceived legal argument is a necessary condition, but not sufficient.
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If you understood the concept of the colonised mind, you wouldn’t imagine it to be “abuse”. Or would you? Sometimes the accusation of “abuse” makes a useful shield or smokescreen.
What you fail to grasp is that ALL our minds have been colonised. You are not special in any way. The only difference among us is the degree to which our minds have been colonised and/or the extent to which we have succeeded in decolonising our mind.
Personally, I was fortunate in that the colonisation process never really took with me. Which is not to say that I was unaffected by being immersed in a culture which put Britishness on the highest pedestal which consigning Scottishness to the lowest regard – only marginally above ‘Johnny Foreigner’. Of course I was affected! It’s just that the impact didn’t cut deep. Even now, however, I have moments. I catch myself on the odd occasion in a mode of thought that remains imprinted on my mind and probably always will.
Put the victim card away, sonny. You’ll know when I’m abusing you. Trust me on that.
The second part of your response nicely illustrates the difficulty of explaining the new thinking and #ScottishUDI to someone whose mind is yet too colonised to get to grips with such things – even when they have largely accepted all the facts and legal / constitutional arguments.
I could – I think fairly – paraphrase your position as follows.
Yes! You (and Salvo) are correct in all the relevant ways, but I still don’t accept what you’re saying. Yes! The British state did acquire the authority it wields in Scotland by (effectively) asserting that power, and seeing off any challenges. Yes! England (as it was then) could do this. Obviously, England could do this in Scotland as they have done it in Scotland as well as countless other places around the globe. Yes! Power can (must!) be taken simply by asserting it. But only by England and such as England. NEVER by Scotland or such as Scotland.
Because your mind is colonised, you recoil from the idea that Scotland could do in Scotland precisely what you acknowledge England did in Scotland.
The question is not should Scotland be an independent country? The question is why is Scotland not an independent country? The first step in decolonising your mind is asking better questions of the status quo.
All the things you suppose Scotland cannot do because it wouldn’t be ‘legal and constitutional’ the British state has already done by simply ignoring the fact that it wasn’t ‘legal and constitutional’ until after they’d done it and were in a position to make it ‘legal and constitutional’. I and others contend that we can take back what is rightfully ours by a very similar process. Except that we would have on our side democratic principle and international law.
All the elements are in place. What is lacking is political will. Which is a euphemism for politicians with a bit of backbone. The fact that our politicians are all cowards is the only thing preventing the restoration of Scotland’s independence. It could be done in a matter of months if not weeks. It’s not that we can’t do it. It’s just that we are too timid to do it. Too timid to defy the colonising power.
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No Peter, I dont consider
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sorry about the false start
No Peter, I don’t consider my understanding of the colonized mind to be abuse. I reserve that for – for instance – that my attitude is just horribly cringy, the “new thinking” (OMG you do realise that Fanon, for instance was writing about 50 years ago – new?????) is beyond me, etc. We may disagree, and that disagreement should be expressed, but as Tony Benn used to say “it’s the issues, not the personalities”. Anyhow, this seems to be your style. I can think of worse company than Robin McAlpine so I will wear your abuse as a badge of honour!
To the substance then. First of all, I don’t claim to be “special”, though you make clear your own special status, claiming as you do, special powers of freedom from the constraints of the mind colonized by Westminster and the Union. Physician heal ….. etc. This all sounds to me a wee bit like the Maharishi (the Beatles) in the 1960s. Do you do courses?
One problem with your position is your unwillingness to even consider that it might be possible to accept the proposition of colonization which I do, and in this regard please refer back to my original contribution so as not to make the spurious claim that in some way I might be “running away”. I am so not running away. I am making the point that colonization is relevant, is necessary (it will for instance increase support for independence) but on its own not sufficient to achieve independence. But it seems to me that (and not only you) require adherence to the faith. Anyone questioning it is “cringy”, incapable of understanding etc.
Secondly you set this out yourself when you attempt to paraphrase “my position”, because you are quite wrong. Have you any grasp of how illogical it is to claim that I think “You (and Salvo) are correct in all the relevant ways, but I still don’t accept what you’re saying”. So, put another way, I think Salvo is correct, but I still disagree with them. Really????? Come on!
To save you the bother, I agree with the proposition that Scotland has been conditioned to accept the Union, that Salvo’s legal/ theoretical argument is logical and could be argued, BUT even accepting all this, if, for instance a case was heard and won at the ICJ, how would this be implemented. A case won in court but not implemented is pretty meaningless, so how do you intend to implement it, to actually secure our independence in practice? I cant remember how often I have posed this question in this exchange, so how about addressing it?
One point where we agree concerns the lack of political will, though I do acknowledge problems. For instance, once the UK had voted for Brexit, Westminster would hardly think of anything else. Just to get this out of the way, this is not a colonized mind speaking but one that recognizes that politics is a practical skill, and in the context of the chaos of three PMs in three years, prorogation of Parliament etc, even making an issue of Scottish independence heard above that din would be, at the very least, demanding. However, it does seem to me that the SNP could have done more. We elected 56 SNP MPs, and once more frightened the Westminster establishment half to death, but frankly did little with it.
That though does not justify your claim that “our politicians are all cowards” and this is “the only thing preventing the restoration of Scotland’s independence.” They could have done more. They were fixated on the “gold standard” referendum route rather than exploring other possibilities, but, as with a dialogue with others who value the same outcome but consider implementation is more difficult than asserting it, abuse (“cowards”) really doesn’t take the matter forward one wee bit.
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What we need before we decide these matters is a group made up of all the people who put forward these various matters , only then can we move forward with a majority view , I find it amazing that all the people mentioned here and all the bloggers and various representatives of Scottish independence groups still after ten years , bring themselves together as one group , in my opinion their failure to do so is unforgivable .
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This topic keeps reappearing. To find fact read the Salvo website and all the links within it. Also read a book called Doun Hauden by Alfred Baird. Doun Hauden is Scots for held down or put another way oppressed.
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I am actually familiar with both. As I indicated in the article Sarah Salyer’s work is both logical and well researched. Alf’s book, while I dont agree with every dot and comma, has several interesting ideas. But neither, it seems to me has cracked the issue of how we secure indepenence without engaging the HoC (or England). I dont think their agreement is necessary, but that they will go along with/ concede our independence.
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All that the Union did was allow England to start calling itself something else.
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