A guest essay by Ewan Kennedy, a resident in Argyll, a former Glasgow solicitor, part-time academic and a tribunal chair. 

The initial impetus for this paper was a call from the late Iain Lawson, asking me to prepare some arguments that might be presented to a conference that was due to take place in February 2023. Iain had first approached me a couple of years earlier and asked for permission to publish a couple of pieces that I had written on legal aspects of the struggles for Independence. I was delighted to have my work read by a wider readership and we went on to become good friends and develop a good working relationship, with him describing me embarrassingly as his Legal Eagle. I continue to feel the loss of his company and humour, as well as his platform for my ramblings.

For his conference, Iain asked me to prepare a paper that might be presented by a hypothetical lawyer opposed to some of the points being developed by Sara Salyers within the Salvo movement. What follows is a much expanded and re-edited version of what I duly delivered at Iain’s event.

My original effort was based on what Sara had published at that time, in response to the Referendum case in the UK Supreme Court and similar matters. I later reviewed what she has published since, and have decided rather than taking on any particular article, to tackle in my own way a number of distinct topics that appear relevant.

I have to stress that I am personally committed to Scottish Independence, having been persuaded after the disastrous surrender of the LibDems to the Tories in 2010. Until then I had harboured hopes that we might at last see some effective form of proportional representation and perhaps even the adoption of a written constitution to entrench it. Since then I have done what I could to further the cause, and my resolve has only hardened as we have all watched our treatment at the hands of the bunch of spivs and fraudsters down south, seeing countless opportunities missed in the process by some of those in whom we placed our trust. There have been times, such as over Brexit, when a challenge to the sovereignty of the Westminster Parliament might just have succeeded. As will be developed in this paper, I believe that there are still viable routes to Independence, but we must avoid waiting for Plan Bs and avoid going down dead ends. The headings that follow represent where I disagree with Salvo, in reality rather than hypothetically.

What was the effect of the Treaty of Union, in legal terms?

I’ll start with something unarguable, that prior to 1707 England and Scotland were two separate adjoining kingdoms, even though the same monarch, Queen Anne, wore both crowns. Both of those kingdoms were also independent countries and nation states in international law, occupying their own territories, the boundaries of which, as we all know, had been settled after being subject to “adjustment” during the preceding centuries. These basic legal facts are quite separate from the process whereby the monarch is appointed or removed, which is determined internally by the national system.

I suggest that in 1707 the state as a legal concept was not defined in the same way as we would today. Ideas such as republics had featured in ancient Greece, but in the Europe of the time we are looking at countries that had rulers, whether kings, queens or emperors, who were nominally in charge, with laws made by trusted aristocrats. Mainland Europe was a mass of similar small states.

It’s now known that Louis XIV didn’t actually say “l’etat c’est moi” and had he done so he would not have expressed the constitutional theory of the time, because the state was universally recognised as distinct from the physical person of the monarch. In England the legal theory ran that the king effectively had two bodies, his own personal one that would naturally end, plus another official one. In an interesting article by Professor Martin Loughlin of London School of Economics entitled “Evolution and Gestalt of the State” he refers to an English theorist, J Southcote from 1559:

“The King has two Capacities, for he has two Bodies, the one whereof is a Body natural, consisting of natural Members as every other Man has, and in this he is subject to Passions and Death as other Men are; the other is a Body politic, and the Members thereof are his Subjects, and he and his Subjects together compose the Corporation … and he is incorporated with them, and they with him, and he is the Head, and they are the Members, and he has the sole Government of them; and this Body is not subject to the Passions as the other is, nor to Death, for as to this Body the King never dies”

Although he was writing with reference to England, I’m not convinced that the concept was viewed any differently in Scotland.

Looking at the history of events in the years leading up to 1707, we see that commissioners acting not on behalf of the respective parliaments but on behalf of the two “bodies politic” of Scotland and England came together and eventually agreed on the terms of twenty five articles, which were then signed in duplicate by almost all of them. Then both copies were presented to Queen Anne, metaphorically representing both “bodies politic”, and accepted by her in both capacities. Plainly this fictional activity was intended to create a Treaty in international law. It was made clear in several articles that the arrangements were intended to be perpetual. Both parliaments then passed Acts agreeing to the Treaty.

Sara Salyers argues that despite what Queen Anne did, the two “bodies politic” remained distinct. I quote

“If, at the Treaty of Union, Queen Anne had possessed the authority to alter the character of the crown she had inherited, ultimately, from Kenneth McAlpine, she would doubtless have done so. Self-evidently, however, she did not; she had no such power.”

At this point I fundamentally disagree. This curious transaction was almost certainly unprecedented at the time. Indeed, since 1707 there have been many more instances of states breaking up and parts seceding than coming together. The problem we all face is trying to work out what it meant in legal terms, viewed through the lens of the very different world in which it was made.

We have to look at documents such as Treaties, Acts of Parliament, Declarations and Claims within their times and try to understand their meanings as they were then understood. Of course they exist as pieces of text on paper or parchment and thus are part of history, but how do we interpret their legal effects? Are they still valid in our modern world?

My opinion is simply that in the absence of any evidence to the contrary, what those commissioners and others did in 1706/7 was intended to unite those two fictional “bodies politic” and replace them with just one, still fictional, entity.

Had it been intended that the two kingdoms would remain separate, a lesser sort of treaty would have sufficed. For example Scotland and France long enjoyed the alliance ancienne, an agreement for mutual support and cooperation against England, without anyone suggesting that they had become a unified state.

Further support for unification is surely found in the fact that the Scottish Commissioners did take great care to preserve the few distinctly Scottish institutions that they considered important, essentially the Protestant Church and the legal and court system, plus the then recent Claim of Right. How those important things were to be protected is, I suggest, a separate issue from the legal effect of the Union.

In a paper that she wrote shortly after the Referendum case in the UK Supreme Court, Sara Salyers described the Lord Advocate’s submission about what happened in 1707 as a “retrospective assassination”. She also maintains that what happened did not amount to a “territorial union” and that somehow the territory remained outside. Adopting the same idiom, my own view is that it was rather a mutual suicide pact, after which the two bodies politic were reincarnated as just one, incorporating the territory and people of both states. This means that I reluctantly accept that the Lord Advocate was correct when she declared that “The Kingdoms of Scotland and England ceased to exist following the Union and were replaced by the Kingdom of Great Britain.”

If Sara is right, the result is that post 1707 there must have been three legal entities, two kingdoms or “bodies politic”, plus a third one, the new State of the United Kingdom. I simply cannot get my brain around that idea.

Various professors of Scots law have offered views on the matter, but I haven’t found one who would disagree that those two states came together and were united as one.

David Maxwell Walker, professor of Scots law at Glasgow University when I was a student there, was what I’d describe as a juridical Scottish nationalist, although also a hard line Tory and Unionist. In an essay in the Journal of the Scottish Law Society in 2007, he referred to “the Union of Scotland and England and the creation of the new state of Great Britain, or the United Kingdom of Great Britain”.

In his essay Walker reflected on the fact that Parliament had often made laws and allowed practices that conflicted with the Treaty. An obvious example was the sending of civil court decisions on appeal to the House of Lords, on the fiction that it was a legislative chamber and not a court. One of the first, known as the Auchterarder case, was done with enthusiasm by the leading lawyers of the time, including the ancestor of Lord David Hope, who gets a mention below. The case concerned the issue of patronage in the Church of Scotland, so it can be said that two Scottish birds were killed with one stone. Less obvious was the tacit acceptance of the customs and methods of the former English Parliament. Old Scottish doctrines such as the desuetude of obsolete statutes were ignored.

As his students, we learned that Walker was infuriated by Westminster’s intrusions into Scottish common law, on issues such as illegitimacy, he declared that such actings by Parliament were “illegal”, but had no suggestion about what could be done.

Thomas Broun Smith, Walker’s counterpart in Edinburgh, was reputed to be up for Independence and might have been expected to do his best to see some life in the Treaty. But he also stopped short of saying that two separate states remained afterwards, and had an even lower opinion of the validity of the Treaty than had Walker. Because both original parties no longer existed, he felt that it no longer had any status in national law; he also saw it as starkly obvious that it had none in international law either.

Nor did Lord President Thomas Cooper in his famous judgement in MacCormick. He refers to separate traditions but accepts that a union took place in legal terms.

I’ll add that in an opinion commissioned by the UK Government pre 2014 on the consequences of a successful yes vote, two more law professors, James Crawford and Alan Boyle, stated categorically that the pre Union Scotland had gone forever:

“First of all, the status of Scotland before the union of 1707 would be of little or no relevance. In particular, the Treaty of Union, considered with or without the Acts of Union, does not currently sound as a treaty in international law.”

I regret that I find these views convincing. This is not to deny the history of events that led up to 1707, the exploitation of our national bankruptcy that resulted from the Darien Scheme and the Seachd Bliadhna Gorta, and the parcel of rogues. Nor, indeed, to deny the huge significance of the historical documents as part of our former existence as an independent state, something that will be vital in the context discussed at the end of this paper.

Before moving on to look at our post-Union history, I’ll quote an important thread posted on Twitter the late and much missed Alex Salmond on the occasion of the accession of King Charles III:

“Attending Accession Council this morning, where a slimmed down Privy Council of 200 meets to proclaim King Charles III. The longest serving PCs now are the mid 70s intake of Roy Hattersley & Bill Rodgers, but they joined more than 20 years after the last Accession Council.

Thus no one alive has ever attended an Accession Council and Queen Elizabeth was the last survivor of the meeting of 8th February 1952. Today’s agenda doesn’t allow for discussion or questions for the job applicant so we can safely assume that Charles will be so proclaimed.

However, the meeting is not entirely free from principles of contractual government or monarchy. In Part II of the Council, the new King is required to swear an oath to uphold the separation of church and state in Scotland, in accordance with the Claim of Right.

The Claim of Right of 1689 is not the bee’s knees in many quarters because of its 17th century anti-Catholicism, and very understandably so. But the idea of a contractual monarchy was first introduced into Scottish thought in the 14th century appeals to the Avignon Papacy.

And the high principles of equality in the American Declaration of Independence, co-existed with the evil of slavery for the best part of a century – but these principles of equality were still well worth saying.

The Claim of Right is properly seen as part of a golden thread of Scottish constitutional thought stretching from the Arbroath Declaration to the present day, that government is contractual and the people, or Community of the Realm, are ultimately sovereign.

In any event, it can hardly be argued that the Claim of Right is merely a historical curiosity, when one of the first acts of the new King is to be required to swear an oath to uphold it! This is the sort of history which can shape the future.”

Please note that at no point does Alex claim that the principles and claims referenced would be accepted by a court as having actual legal validity.

Events following the Union

I’ve already said that we must try to view events and interpret writings through the lens of the time they were negotiated. An historian who had a strong view on this was Sir Herbert Butterfield, who in 1931 wrote an important essay entitled “The Whig Interpretation of History”. He argued that historians tend to like the Whigs, because they were seen as on the side of progress, just as Protestants tended to be seen more favourably because, he argued, they were more open to new ideas than Catholics. He warned that we shouldn’t credit them with too much foresight and use their efforts to address issues they could never have contemplated. Dare I say that this is precisely what supporters of Salvo are doing, crediting the Whigs with more foresight than they could possibly have had and using that to promote ideas to which they would have been totally opposed.

As noted above, violations of the terms and intentions of the Treaty started very soon after it had been signed. But this caused no storms of protest in Scotland; on the contrary they were largely encouraged by what then passed for Scotland’s Establishment. I suspect that having got the Protestant religion secured they were content to let the rest go and stand on the side of what they saw as progress.

Of course, the first half of that first Century was taken up with the Jacobite Risings, led by the very people those now in charge in both Scotland and England had disposed of. The new State was being driven forward by the Whigs who had reduced the power of the King, the very parties who had promoted the Claim of Right.

As we all know, after 1746 the Whig Hanoverians went ahead with the wholesale dismantling of Scotland’s clan system. The clan chieftains soon saw that there were benefits for them in this, and dropped the idea that they held land in trust for the clan in favour of the English concept of absolute ownership. The costs of life down south and sending their sons to Eton soon bankrupted them, clearing the way for the later Clearances. We can add the harvesting of a new crop, young Highland men for use as soldiers. All of this was done in the name of a London based regime, but largely by Scots on Scottish soil, which rather negates the idea that Scotland and its sons had somehow remained geographically separate, running against the idea of a territorial union.

Recounting Hanoverian brutality simply does not tell the entire story. Whether we like it or not, after the Jacobite period things largely settled down. Most of the principal landowners who had been on the wrong side, the Gordons, the Dalrymples, the Stewarts, negotiated the return of their holdings. Scots enthusiastically became involved in the development of the new Empire. Our education system that produced many times the doctors, the navigators, the engineers than were required domestically, fed naturally into the new system.

As time went on we were soon into the Enlightenment, with leading Scottish thinkers developing ideas that would shape the future of scientific, medical, economic and religious thought for the next few centuries. They did so against the background of a unified British state, and I suggest that writers such as Adam Smith and David Hume found comfort and protection in this. Scottish memories were as long then as they are today, and these modern free thinkers would have been aware that the views which they were openly expressing would have traditionally been seen as blasphemy. Events such as the witchcraft trials and the public hanging of the young student Thomas Aikenhead in 1697 had shown how easily a small country can be captured by an ideology. Perhaps a warning for today, too!

This point is developed in relation to Adam Smith in the recent essay collection entitled “The Kirkcaldy Papers”, edited by Roger Mullin, Craig Smith and Robbie Mochrie, which helps to recover Smith’s reputation from its recent capture by neo-liberals. The essays show that Smith and his contemporaries assumed the common good of the people to be the principal aim of government.

To summarise, it would take a massive rewriting of history to suggest that, as seen at the time, the Treaty was anything other than a total, all encompassing one that created a single unitary state, politically, economically and territorially. After the Jacobite years it was welcomed by our leading thinkers, and largely accepted by everyone else. Nobody was to foresee the merciless developments that we have seen in the succeeding centuries, with the Thatcherite denial of society and the arrival of neoliberalism as a creed. It all happened long before Professor A V Dicey came along with his theory of the absolute sovereignty of the Crown in Parliament, which largely enabled such things, and which we should now take a look at.

Sovereignty and Professor A V Dicey

The classic version of statehood as a system headed by an absolute despot, surrounded by a circle of sycophantic aristocrats, took a severe shock in 1688, after which the power of the Crown was severely curtailed. Further shocks occurred down to the aftermath of American Independence, followed by the French Revolution and the ensuing Napoleonic war. In Scotland, Enlightenment thinking, the efforts of Thomas Muir and others, plus our Scottish enthusiasm for learning to read, produced a population unwilling to tolerate the status quo. By 1832 matters had reached the point where the first limited suffrage was granted to males occupying houses over a certain value. As ever, the Establishment was prepared to yield as little as possible, and this first concession to democracy held back the deluge for a considerable time.

It’s notable that in the period of almost two hundred years since then, the way that politicians and judges view the relationships between parliament, the courts and the people has remained essentially unchanged, while virtually all other advanced states have moved on and now have formal constitutions.

Lord David Hope is something of a hero of mine, and I’ll leave it to him to tell us about Professor Dicey. At the start of my career, and of his, I instructed him on behalf of clients whenever he was available; also I have read a lot of his opinions and watched him on several occasions as a judge. He’s undoubtedly one of the finest lawyers of our age. He gave a brilliant explanation of the development of the idea of sovereignty in his speech to the Hart Workshop in 2011, which can be accessed here:

https://www.supremecourt.uk/docs/speech_110628.pdf

As Hope points out, the doctrine of sovereignty did not arise from the enactment of any piece of legislation by a parliament, nor from the ruling of any court, nor from some expression of popular assent. It is accepted as valid law simply because it has always been so accepted. When Professor A V Dicey came along in the later Victorian period, he simply described the situation as he saw it. His writings then gained a certain authoritative status that has prevailed. The essence of Dicey can be found in two quotations cited by Hope as follows:

“The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” And:

“Parliamentary sovereignty is therefore an undoubted legal fact. It is complete both on its positive and on its negative side. Parliament can legally legislate on any topic whatever which, in the judgment of Parliament, is a fit subject for legislation. There is no power which, under the English constitution, can come into rivalry with the legislative sovereignty of Parliament.”

Hope mentions the two major challenges to the sovereignty of the UK Parliament in the Twentieth Century, from adherence to the European Convention on Human Rights and the country joining the European Community. I was involved in the fringes of legal academia during the latter, and we had endless discussions about whether accepting an element of control from outside would trigger a serious look at the question of sovereignty. In the event we saw a classic English fudge, the matter never being resolved or even discussed to any great extent. In practice, rulings such as in the Factortame case on fisheries were quietly accepted and adhered to, annoying the people directly involved, but not disturbing those at the top.

Hope points out Dicey’s fondness for referring to England, rather than to the UK or Great Britain, and stresses that he is looking at things from a Scottish perspective. In an important paragraph he states:

“But I do not think that we can ignore the fact that times have changed since Dicey. It seems to me that there is a very real question as to whether we can continue to rely on Parliament to control an abuse of its legislative authority by the executive. It is an uncomfortable fact that Parliamentary sovereignty and the rule of law are not entirely in harmony with each other. So long as Parliament respects the rule of law there is no problem. But to assert that Parliament can enact whatever laws it pleases runs the risk that the rule of law will be subordinated to the will of the government.”

In his speech, Hope speculates that if Westminster were to do something horrendously offensive to Scots, such as abolishing our court system and subsuming it to that of England, sovereignty might just blow up. He also records that his views have moved on from 2000, and it would be fascinating to learn if they have moved on further in the last thirteen years. It would be great if someone as authoritative as he is were to make a powerful declaration that the time was up for the Victorian model. He would not need to go as far as coming out for Independence.

I should also mention that in the famous case of MacCormick we find similar sentiments in the judgement of Lord Thomas Cooper, in a section that hasn’t been quoted as often as it should. He refers to :

“To put the matter in another way, 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. Any person “can” repudiate his solemn engagement but he cannot normally do so with impunity. Only two answers have been suggested to this corollary to the main question. The first is the exceedingly cynical answer implied by Dicey (Law of the Constitution, (9th ed.) p. 82) in the statement that “it would be rash of the Imperial Parliament to abolish the Scotch law courts, and assimilate the law of Scotland to that of England. But no one can feel sure at what point Scottish resistance to such a change would become serious.”

We will look at Lord Cooper’s second answer below!

“Scottish resistance” means that the restraint on power would depend on some extra-legal steps taken by the people. I suppose that the Poll Tax agitation is an example, as would, for example, a future move by Westminster to take ownership of our water, or perhaps to abolish Holyrood itself. We’ve already seen some pretty disastrous events, starting with the oil, moving on to our hydro-electric, our seabed, our renewables; right now we seem to be supinely tolerating things that would have had the ancestors taking up arms.

In researching this piece of work I came across the following comment I posted on social media following the Supreme Court Brexit case in 2017, regarding the status of Holyrood:

“The irony is that the Supreme Court judges have in fact delivered a highly political judgement, probably without realising it. There was an opportunity here to declare that in the changed circumstances within the UK following the devolution settlement we had moved on and to consign the ghost of A V Dicey to the history books where he belongs. Had they done so and accepted that Scotland now had “the closest thing to federalism” (which we were promised by Gordon Brown and others if we voted no) what could Mrs May possibly have done? Send in troops to lock up the judges?”

That was written in a bit of a hurry, but on re-reading it I wouldn’t change anything.

Instead we saw that steely cold QC Lord Keen, solemnly declaring that the provisions that the Westminster government had enacted only months earlier “entrenching” the Scottish Parliament were complete rubbish, his words then being upheld as sound constitutional law.

Imagine if their Lordships had responded along the lines of:

“Dicey, of course, the great Victorian, belongs to the age of Imperialism, when women had no votes and neither did many men, before the two World Wars and nuclear bombs. His theory is the only thing disabling our Parliament from bringing our wonderful country into the modern age; nobody ever voted for it; were he around today he’d surely agree that it’s time to move on!”

Ultimately, while we can argue all we like about these things, the definitive answer within the legal system of the unified state will always be what the UK Supreme Court decides. Given the present composition of the court and the way it views its functions there was never the slightest chance of anything else in the recent cases.

The International Route

Let’s start this section with Lord President Cooper’s second answer in the MacCormick case:

“The other answer was that nowadays there may be room for the invocation of an “advisory opinion” from the International Court of Justice. On these matters I express no view. This at least is plain, that there is neither precedent nor authority of any kind for the view that the domestic Courts of either Scotland or England have jurisdiction to determine whether a governmental act of the type here in controversy is or is not conform to the provisions of a Treaty, least of all when that Treaty is one under which both Scotland and England ceased to be independent states and merged their identity in an incorporating union. From the standpoint both of constitutional law and of international law the position appears to me to be unique, and I am constrained to hold that the action as laid is incompetent in respect that it has not been shown that the Court of Session has authority to entertain the issue sought to be raised.”

I’ve started with this to remind us all that this route, which is now recognised by everyone paying attention, has been available for at least seventy years. The wonder is that in the decade since the Referendum I’ve never seen any reference to it as a possibility. It certainly didn’t feature in Mike Russell’s amazing eleven point plan, which we were sold as a magic solution before it equally magically vanished.

I’ll start with a caveat that should be clear from what I’ve written above about Scottish resistance. Only an idiot would suggest that independence could be achieved by a purely legal process without a concurrence of massive efforts politically. On the contrary, having a viable and legally valid route can surely only give courage and confidence to those struggling to see any way out of the mess that we Scots find ourselves in, nearly a decade after so many of us fell for the lies we were told by the British establishment.

Cooper’s view was echoed a few years ago by Professor Mark Weller. As quoted in the Scotsman newspaper, he said:

“This internal, constitutional entitlement is then reflected in the international law doctrine of constitutional self-determination.” … “According to the legal doctrine of uti possidetis, the right to self-determination through a referendum outside of the colonial context applies only to larger, constitutionally recognised units – in this instance Scotland.” … “Scotland can also appeal to the principle of self-determination in international law,” …”This principle was recently affirmed once more by the International Court of Justice in the Chagos Islands advisory proceedings brought by the United Nations General Assembly in relation to the UK.”

He went on to say that Scotland’s right to leave the UK was “established informally in UK constitutional practice” after the 2014 referendum, and “International law recognises such a constitutional grant of authority, whether made express in the constitution or implied in constitutional practice”.

More recently, in June of last year the Alba Party published the opinion of Professor Robert McCorquodale on this subject, but essentially he repeats what Professor Marc Weller was telling us. These are considered, well researched views, which deserve to be taken very seriously. The link to Professor MacCorquodale’s Opinion is here:

https://www.albaparty.org/international_legal_scottish_self_determination

His careful analysis points out flaws in the Supreme Court’s reasoning regarding the application of the international cases of Quebec and Kosovo to Scotland but, as we’ve already noted above, the problem with any supreme court is just that its judgements, however reached, are final and not subject to any further appeal.

I started canvassing the international route some years ago, after reading Professor Weller. This resulted in people responding by telling me, for example, that “the Americans will never allow it” or that any result would be unenforceable. International law is imperfect, and there are no policemen, but it has an enormous impact in appropriate circumstances. Apart from this, let’s not lose sight of the ultimate destination of Scotland as an independent member of the international community of nation states. That in turn depends entirely on recognition by a significant number of other nation states, an issue that will hang very much on international law.

I refuse to accept that there are no circumstances in which the United States would allow the Scots to take the same route they took themselves, many Scots among them. A friendly, English speaking country on the fringe of, and probably closely allied to Europe could be a welcome alternative to an inward looking English state. In the last few years we have seen, certainly for the first time in my adult lifetime, government ministers openly and expressly stating that the United Kingdom intended to violate an international treaty that they had themselves recently negotiated. We’ve heard Lord Kerr and Lady Macintosh in the House of Lords, among others, saying that the United Kingdom is close to being a rogue state. Fine, those who did these things were Tories, but I’m not seeing much of a difference right now.

The steps involved in securing the required UN Resolution will involve a great deal of lobbying and diplomacy, with plenty of chances to sell the idea of having a friendly, English speaking, law abiding neighbour to our transAtlantic friends. We will need to copy our Irish neighbours by cultivating and activating cultural and social connections worldwide. If we don’t accept the possibility that we can do this, we may as well all give up and accept our fate.

The other states don’t all have to agree; there are many cases of nation states that have happily existed and been accepted without universal recognition. Recognition is best seen as a mixture of international law and politics, depending on external assessments of whether or not mechanisms of state appear to be present, functioning decision-making bodies, courts, etcetera.

My own view, in line with the two professors, but which I accept isn’t shared by everyone, is that Scotland’s claim to be recognised would be based purely and simply on the principle of self determination, which is embodied in the United Nations Charter and fully accepted by all the states that would be principal players, including the United Kingdom. The argument would be founded on our defined territory, people, language and culture, our functioning institutions such as legal, health and education systems, the church and so on. I won’t lengthen this essay by listing all the factors, but documents such as the Declaration of Arbroath and the Claim of Right would certainly feature.

Our right to secede has been implicitly recognised by UK politicians for decades. Westminster has never responded formally to any letters from the Scottish Government asking for a “Section 30” agreement, so to find out their position we have to look at the answers successive politicians have always given. It’s always that somehow the time isn’t right, or a “generation” hasn’t passed, never that the Scottish nation is not entitled to self determination. The issue is clearly one of process rather than principle; in other words it’s agreed that we have a right, but we have no way of enforcing it.

The alternative basis to go forward, that is being widely canvassed by Salvo/Liberation, is based on colonialism. I’m not alone in having very serious reservations about the viability of this.

As I understand it, such a route would found on UN General Assembly Resolution 1514 (XV) of 14 December 1960, following which a list of potential candidate nations, “non-self-governing territories” was put in place. Scotland is not on it, and would require to establish entitlement by a resolution of a member state of the General Assembly.

It is accordingly clear that each of the two routes would be started by a member state putting a formal resolution into place, seeking an advisory opinion before the International Court of Justice in the Hague. I’ll concentrate on my preferred route of self-determination from now on and quote from the website of the court itself, https://www.icj-cij.org/

“Since States alone are entitled to appear before the Court, public (governmental) international organizations cannot be parties to a case before it. However, a special procedure, the advisory procedure, is available to such organizations and to them alone. This procedure is available to five United Nations organs, fifteen specialized agencies and one related organization.”

From an examination of the list of these bodies, I suggest that it’s clear that the route in our case has to be by way of a resolution of the General Assembly , which would need to be passed by a simple majority of members voting. The good news is that there is no Security Council veto. I’m encouraged to see that this is precisely what Professor McCorquodale says (paras 95 et seq).

Thus, the first step is to put in place a draft resolution. Meanwhile, steps are taken to identify friendly states, including one willing to present the resolution.

I suggest that the resolution should be drafted by a mix of legal experts, including at least one from our friendly state, but also one of our great writers, to ensure a text that stands comparison with some of our finest documents from the past. It would:

Start with a declaration that prior to 1707 Scotland was a free, independent state playing a significant role in world affairs, that entered into a union, which a significant number of her population now reject, having demonstrated their disquiet on countless occasions and for good reasons.

And

That the UK government has repeatedly acknowledged that the Scottish people are a nation free to choose their own destiny, that it allowed a referendum, then made countless false promises, and that it now obfuscates and delays.

As a result, modern Scots have been denied membership of the community of nations, have lost access to their major trading partners, and have lost their fundamental freedoms to travel, associate with friends and study abroad. They fear that worse is to come, citing the expressed enthusiasm by those in control of the UK Government for breaking International Law, plus threats to withdraw from the European Convention on Human Rights, all voted for by the majority of English people while consistently rejected by Scots.

Requests the United Kingdom to permit the Scottish Government to hold a second referendum, on such terms as may be negotiated, such referendum to be monitored by a UN agency to ensure fairness and in the case of the UK Government refusing to do so to declare the United Kingdom in breach of the United Nations Charter and to authorise the Scots to hold a referendum themselves.

I envisage that the whole process could take several years, but it could start as soon as the political will existed to go ahead with it, as it must surely be within the mandate of a government elected with independence in its manifesto. The regret, of course, is that we didn’t start eight or nine years ago.

If all went according to plan, a resolution would be debated and voted on, resulting in a formal request to the Court. It would then be up to us to win our case.

I end this paper with a brief look at the current composition of the ICJ.

The International Court of Justice originated after the establishment of the League of Nations as the Permanent Court of International Justice in 1922. It was from the start independent from the League and only had jurisdiction over those individual states that signed up to it. It was effectively suspended at the outbreak of war, issuing its final ruling in February 1940, then re-established under the United Nations in February 1946.

It comprises a panel of judges elected by the member states, but interestingly, currently for the first time in the court’s history without one from the United Kingdom. When Sir Cristopher John Greenwood was due to retire, the British diplomatic team attempted ineptly to use its status as a permanent member of the Security Council to revive an old principle that there should be a corresponding permanent judge on the ICJ, but this only served to infuriate the other member states, who overwhelmingly elected Judge Dalveer Bhandari from India. Matters probably weren’t helped by the memory of Sir Christopher’s advice to Tony Blair about the legality of war that led to the UK being involved in Iraq! So for the first time in 71 years there isn’t a British judge.

The current list, in order of appointment, provides an interesting range of countries, including a few former colonies, from which fact I draw no conclusions. They sit together as a college.

Donoghue – USA, Gevorgian – Russia, Tomka – Slovakia, Abraham – France, Bennouna – Morocco, Yusuf – Somalia, Xue Hanqin – China, Sebutinde – Uganda, Bhandari – India, Robinson – Jamaica, Salam – Lebanon, Iwasawa Yuji – Japan, Nolte – Germany , Charlesworth – Australia, Brant – Brazil

Ewan Kennedy, 5 November 2024.