Understanding Scottish Independence

'Understanding Scottish Independence' was originally written, in March 2009, as a guest post for the blog 'New England Tartan Day Initiative' which is now no longer available.

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After over 300 years it is no surprise that the idea of an independent Scotland should be considered, by many Scots, as a matter of wishful thinking or fantasy. However, that opinion has to be viewed against the background of the neglect of Scottish history to the extent that most Scots, including the most vociferous advocates of the British Union, are now unaware of the history of their own country -

'Equally, the study of English history and the comparative neglect of Scottish history led to the acceptance of the false idea that the two countries share the same historic background. How far this can go was illustrated in 1965, when it was proposed that the seven hundredth anniversary of Simon de Montfort's parliament and the seven hundred and fiftieth anniversary of Magna Carta - both events which took place in what was at the time a foreign country - should be commemorated in Scotland...Scotland's past tends to be viewed through the eyes of English historians, who regard anything not English as quaint, backward or even downright barbarous.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.117,

the blow to the national self-confidence of the Scots resulted from the rigged referendum in 1979 -

'Labour MP George Cunningham succeeded in amending the bill to ensure that a referendum required the support of 40 per cent of the electorate (not those voting), for devolution to become law.' - p.149

'...but the 40 per cent rule was to have a decisive impact on the outcome of the referendum. Whilst 51.6 [per cent] of the votes cast supported the establishment of a Scottish Assembly, they represented only 32.9 per cent of the [electorate]: well short of the requirement for 40 per cent of the electorate to vote 'YES' before devolution could be instituted.' - p.152

SOURCE: 'SNP - The History of the Scottish National Party' by Peter Lynch,

and the way in which one particular political party, the Labour Party, has exploited the support of voters in Scotland for its own political self-interest -

'However, while the Labour party paid lip-service to Home Rule while out of office, its promises were forgotten when it was in office. Many of the Labour men were not only internationalists in principle, but had so fallen under the spell of England as to have little sympathy with Scotland.' - p.127,

'It was even harder to believe that the Labour party could decide to further Home Rule - even apart from the practical advantages to it of Scottish support at Westminster. The party's philosophy is based on the division of men into social classes rather than into nations, and the whole structure of organized 'Labour' stands for the negation of nationalism.' - p.130

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson.

Fortunately there is a political party in Scotland, the Scottish National Party, which has as its aim the restoration of an independent Scotland in today's modern world and has, since May 2007, formed the elected government of Scotland in the devolved Scottish Parliament.

In any debate about the Treaty of Union in 1707 there are certain inconvenient truths that British Unionists prefer to omit -

• that in the three months that the Articles of Union were being debated by the Scottish parliament there were riots throughout Scotland,

• that, during the same period, English troops had been moved to the Scotland/England border,

• that the majority of the Scottish commissioners appointed to negotiate the Articles of the proposed Treaty of Union were chosen because they were in favour of an incorporating union,

• that the Equivalent (the financial recompense for Scotland's contribution to payment of the English national debt (Article XV of the Treaty of Union in 1707) was grossly underestimated.

A 1954 legal finding by Lord Cooper in the Scottish Court of Session contained the following -

'...The principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law...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...'

- MacCormick v Lord Advocate 1954 (1953 SC 396)

The late Professor Gordon Donaldson wrote in his book 'Scotland: The Shaping of a Nation', pp. 58-59 -

'Yet the Scots made a grave miscalculation. They thought of the treaty as a written constitution, and, even with all the concessions they had obtained, they would not have accepted that an omni-competent parliament had power to abrogate provisions which they fondly imagined to be 'fundamental and essential'...But the theories of English constitutional lawyers prevailed, and the union has proved to have no more sanctity than any other statute...The list of violations of the treaty is already a long one and always growing longer...The fact is that, contrary to the beliefs and hopes of those who framed it, the treaty of union has proved to be a scrap of paper, to be torn up at the whim of any British government.'

The following is an extract from the book 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.296 -

'In his White Paper on Scotland John Major declared that 'no nation can be can be kept in a union against its will', implying the right of self-determination, but then refused to accept broad consensus on favour of home rule as a condition for remaining within the Union (Major 1992). Labour has been equally inconsistent, signing the Claim of Right asserting that the sovereignty rested with the Scottish people (Campaign for a Scottish Assembly 1988), but then insisting in its devolution legislation that the sovereignty of Westminster remained unabridged. Yet whatever the protestations of Westminster and the wording of the Scotland Act, almost nobody in Scotland believes that the Parliament is a mere subordinate legislature, a creature of Westminster statute. Its claims to original authority are twofold: its basis in the referendum of 1997 as an act of self-determination: and the residual traditions of Scottish constitutional law and practice which never accorded untrammelled sovereignty to Westminster.

The Scotland Act 1998 contains the following sub-section in section 28 which concerns Acts of the Scottish Parliament -

'(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.'

In other words the United Kingdom Parliament can still make laws for Scotland EVEN on devolved matters.

The benefits of independence

Independence for Scotland would allow the people of Scotland to determine their own future by being able to elect a government which would put the national interests of Scotland foremost, limited only by such international agreements as are freely entered into by it. Scotland would be able to participate at an international level as a sovereign nation with other nations at European Union and United Nations level as well as in any other international organisations of which it chose to be a member. Decisions affecting Scotland could no longer be made without direct representation. An example of how this is currently done without any Scottish representation exists in the meetings of the Council of Ministers of the European Union. Representation in the Council of Ministers is restricted to the official delegations from member states, which as far as Scotland is currently concerned is the United Kingdom. Tiny land locked Luxembourg is a member state, has a population less than the city of Edinburgh, has no fishing fleet but has the power to influence decisions that could have a significant impact on the fishing industry in Scotland. Independence would place Scotland among the other independent nations throughout the world - in other words NORMALITY. What independent country, anywhere in the world, would seek a return to a union from which it had previously gained independence? After her victory for the Scottish National Party at the Hamilton by-election in 1967 Winnie Ewing - later a Member of the European Parliament (in which she was known as Madame Ecosse) and then Member of the Scottish Parliament (now retired) said:

"Stop the world, Scotland wants to get on."

Clarification and explanations

In order to assist the understanding of the case for Scottish independence and to avoid misunderstanding and confusion some clarification of certain matters and an explanation of the arguments, most frequently used against the case for independence to create confusion, is required.

Scottish independence is NOT secession

It is incorrect to use the word 'secession' with regard to Scottish independence. The 'Concise Oxford Dictionary' defines 'secession' as -

'the act of seceding from a federation or organization'.

The United Kingdom is neither a federation nor is it an organization. For a secession to occur the parent state, which with regard to the current constitutional status of Scotland is Great Britain, would have to continue, albeit in a modified form - that would not be the case. The country of Great Britain was created by the joining of Scotland and England through the Treaty of Union in 1707. When Scotland regains its independence that treaty will effectively be DISSOLVED and Great Britain will CEASE to exist.

There is NO such thing as 'British law' or a 'British legal system'

It is possible to get confused when reference is made to either 'British law' or the 'British legal system'. The simple fact is that there is no one thing that can be called British law or the British legal system. The phrases 'British law' and 'British legal system' are generally understood to encompass both Scots law and English law and their respective legal systems. Although there is also Welsh and Northern Irish law and corresponding legal systems they are essentially variants of English law. The following extracts from the 'Kilbrandon Report' should help clarify the status of Scots law -

'74. ...By the time of the Union a well-defined and independent system of Scottish law had been established. This was recognised in the Union settlement, which provided for the preservation of the separate code of Scots law and the Scottish judiciary and legal system. Under Article XIX the two highest Scottish courts - the Court of Session and the High Court of Justiciary - were to continue, and were not to be subject to the jurisdiction of the English courts. These bodies have remained respectively the supreme civil and criminal courts in Scotland, while beneath them there is a completely separate Scottish system of jurisdiction and law courts, with a justiciary, advocates and solicitors,none of whom are interchangeable with their English counterparts...

76. ...Nevertheless the two systems remain separate, and - a unique constitutional phenomenon within a unitary state - stand to this day in the same juridical relationship to one another as they do individually to the system of any foreign country.'

SOURCE: 'Royal Commission on the Constitution, 1969-1973', Volume I, Cmnd. 5460.

"Don't break-up the United Kingdom"

This argument exposes the misunderstanding that exists about what the United Kingdom actually is. The United Kingdom is NOT and NEVER has been a country. This misunderstanding has its origins in the Union of the Crowns in 1603, a misnomer which the following extract will clarify -

'on 25 March 1603, James VI of Scotland became James I of England. It was a purely personal union. There were still two kingdoms, each with its own parliament, administration, church and legal system.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.46.

It was James who first used the term 'Great Britain' to describe his combined kingdoms of Scotland and England. What unites the 'United Kingdom' is the fact that the same person is the monarch of three kingdoms - Scotland, England and Ireland. In relation to Scotland the term 'United Kingdom' first occurred in the Treaty of Union in 1707 which established the 'United Kingdom of Great Britain' (Article I). In 1801 it was expanded to include Ireland in the 'United Kingdom of Great Britain and Ireland'. Following the creation of the 'Irish Free State' in 1922 it became the 'United Kingdom of Great Britain and Northern Ireland' in 1927. As well as being a descriptive term of the territory of which it is comprised, 'United Kingdom' is also an abbreviation of the formal name. When Scotland regains its independence the 'United Kingdom' will continue, as it did between 1603 and 1707, until the people of Scotland decide otherwise in a referendum in an independent Scotland.

"Scotland is too small and too poor to be independent"

This particular argument is an offshoot of a view that was prevalent in the 1960's and early 1970's that 'bigger is better'. However, the argument is puzzling - how can 'too small and too poor' be put forward as a justification when no basis for the argument is given? How is 'too small' or 'too poor' to be defined? - both are relative terms. Using population size as a measure there are a number of countries throughout the world with a comparable population to Scotland that are independent nations. The population of a country is often referred to as its best resource. The suggestion that population size should determine whether or not a country should be independent insults the people of Scotland as well as the peoples of those countries with a similar size of population to Scotland.

Compared to some countries Scotland would be considered to be affluent. In comparison to other parts of the United Kingdom there are parts of Scotland where relative poverty exists (it is also the case that there are parts of the United Kingdom outwith Scotland that are also affected by this relative poverty). The reason for this can be found in the large support that the Labour Party had in Scotland. As long as the Labour Party could rely on that support then it had no reason to do anything to alleviate that poverty - anything it did do was an illusion. As far as it was concerned it's own political self-interest took precedence.

The Scotland Act 1998 which led to the creation of the Scottish Parliament reserved economic powers to the UK Parliament. Despite this fact the British Unionist political parties in the Scottish Parliament persist in their malicious accusations that the Scottish Government is failing to address the economic problems affecting Scotland. After the Scotland Act had been passed, but before the establishment of the Scottish Parliament, the Scottish Adjacent Waters Boundaries Order 1999 was approved. It removed a substantial area of the North Sea from Scottish waters and included them in English waters. This meant that Scottish fishing boats which had previously landed their catch from that area at a Scottish port had to land it at an English port thereby removing part of the economic contribution of the fishing industry from Scotland.

"Scotland cannot be independent in the European Union"

For some peculiar reason proponents of this argument appear to forget or dismiss the point that the same criteria they apply to an independent Scotland could equally and logically be applied to what is termed 'remainder of the United Kingdom' (rUK). Basically what is being suggested is that an independent Scotland would have to apply for membership of the EU but that 'rUK' would not. The following is an extract regarding 'The European Union and Succession' from the book 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, pp. 115-116 -

'French Advocate Maitre Xavier de Roux summarises the argument in the following terms:

'Scotland is part of the Common Market territory by virtue of the United Kingdom's accession to the Treaty of Rome and by application of the Treaty of Union 1707. If the Treaty of Union was revoked and if Scotland recovered its international sovereignty, it would be accepted within the Common Market without any formality.'

...

As the EU includes Scotland within its remit and because Community law directly affects the Scots, de Roux concludes that Scotland is not a third party to the Treaty. On independence it could not be regarded as a new applicant state as the United Kingdom acted on behalf of Scotland when it joined the European Communities in 1973. According to de Roux's argument, a change in Scotland's political status would have no bearing on the legal status of Scotland in Europe.

Professor Emile Noel, former Secretary General of the European Commission and Lord Mackenzie Stuart argued that Scottish independence would result in the creation of two Member States of equal status. The rUK would not be more powerful than Scotland...

Former Director General of the European Commission and former EC Ambassador to the United Nations Eamonn Gallagher sees 'no sustainable legal or political objection, to separate Scottish membership of the European Community...'.

"We need the Trident nuclear weapons system"

Nuclear weapons are the cause and subject of protest and great fear. No one, irrespective of their opinion about nuclear weapons, can be in any doubt as to the disaster their use would precipitate. In Scotland there have been protests and demonstrations since nuclear submarines arrived and were based on the River Clyde, initially by the US Navy in March 1961 (from June 1968 on the Holy Loch) until 1992 and by the Royal Navy at the Faslane/Coulport base on the Gare Loch and Loch Long from 1969. That base is approximately 30 miles north-west of Glasgow. Within a radius of 100 miles from the base the vast majority of the population of Scotland live and work. There is an important distinction to be made between opposition to these weapons and the crews of the submarines. Think of it this way - the missiles are the message and the crews are the messenger. Opposition and protest is directed specifically at the nuclear weapons.

"Scotland will be a target for retaliation if the Trident missile should ever be used. The people of Scotland will be the sufferers...the safety of the population of Scotland is the concern of Scotland. The health of the population of Scotland is the concern of Scotland. The welfare of future generations of its population is the concern of Scotland. The purity of the seas and ocean life around Scotland are the concerns of Scotland...gross violations of international obligations are not excluded from the purview of the Scottish Parliament. The absence of power in the former area cannot cancel out its responsibilities in the latter."

- Judge Christopher Weeramantry, former vice-president of the International Court of Justice.

Schedule 5 of the Scotland Act 1998, concerning 'RESERVED MATTERS', in Part I reads as follows -

'7 - (1) International relations, including relations with territories outside the United Kingdom, the European Communities (and their institutions) and other international organizations, regulation of international trade, and international development assistance and co-operation are reserved matters.

(2) Sub-paragraph (1) does not reserve -

(a) observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law,

(b) assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies.'.

"You won't be able to visit relations in England"

This is probably the most ridiculous argument against Scottish independence - it also clearly shows the sort of scaremongering that British Unionists will resort to and the depths to which they will sink. The argument uses the existence of the Schengen Agreement as justification. The Schengen Agreement provides for a borderless zone comprising of the countries which are signed up to it, mostly member states of the European Union and a few countries outside it. Currently the United Kingdom and the Republic of Ireland are the only EU member states which do NOT fully participate in the Schengen Agreement. Border control arrangements still exist between countries that are part of the Schengen Agreement and those that are not. The suggestion that an independent Scotland would be isolated from the rest of the world is not only insulting to the people of Scotland but also reveals the complete lack of vision for Scotland's future which exists among British Unionists.

An independence referendum

An important feature of Scottish democracy is the fact that sovereignty rests with the people and not parliament. This fact was recognised by the Select Committee on Scottish Affairs (a committee of the UK Parliament) -

'greater power can only be granted to Scotland by the UK Parliament and here there is potential for conflict. To take the extreme example, constitutional matters are reserved but it is hard to see how the Scottish Parliament could be prevented from holding a referendum on independence should it be determined to do so. If the Scottish people expressed a desire for independence the stage would be set for a direct clash between what is the English doctrine of sovereignty and the Scottish doctrine of the sovereignty of the people.'

SOURCE: 'The Operation of Multi-Layer Democracy', Scottish Affairs Committee Second Report of Session 1997-1998, HC 460-I, 2 December1998, paragraph 27.

The Scottish Government has launched a consultation document titled 'Choosing Scotland's Future: A National Conversation - Independence and responsibility in the modern world' which includes a suggested Bill for an independence referendum. The following quotation is to be found on the inside front cover of that document -

'No man has a right to fix the boundary of the march of a nation: no man has a right to say to his country, "Thus far shalt thou go and no further ".

- Charles Stewart Parnell (1846-1891)'

The Unionist parties in the Scottish Parliament have clearly indicated that they will not vote for such a Bill when it is introduced in 2010 denying the people of Scotland the opportunity of a say in their own future. Since 1973 the status of the referendum in the United Kingdom has been the subject of much debate -

'In the last resort, all arguments against the referendum are also arguments against democracy, while acceptance of the referendum is but the logical consequence of accepting the democratic form of government.'

- Professor Vernon Bogdanor, English constitutionalist.

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'Those who would deny freedom to others, deserve it not for themselves'

- Abraham Lincoln, April 6, 1859

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