Thursday, 4 August 2016

What do we mean by Independence?

Over the last couple of weeks there has been much written on the next 'independence' referendum  and whether we should take our time or rush in to one as soon as possible. In among all this gnashing of teeth and chewing of gristle ever smaller there has been the undercurrent and disagreement about what would be 'true' independence whether within the EU counts or only outside of all current treaty and other obligations even to the point of questioning membership of the UN.

A fair amount of the misunderstanding of what an 'independent country' means for Scots is wrapped up in the disinformation of over 300 years of an English dominated parliamentary union and the myth which is the 'unwritten constitution of the UK'.

The starting point is the constitutional fallacy promoted by Bagehot and others in the early 19th century which presumed Scotland had been subsumed by England within the UK 'Sovereign' Parliament. Around this initial deceit is now wrapped layers and layers of legal sticky plaster and string in the form of legal pronouncements, precedent and a load of good old 'aye been' so it can not be changed now as the UK Constitutional ball grows ever larger in its attempt to be all things to all people, yet is remains based, at its heart, on the false premise that England subsumed Scotland. Lord Cooper described this fallacy as follows:

"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. Further, the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contain some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provision shall be fundamental and unalterable in all time coming, or declarations of a like effect. I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists of the same attitude to these markedly different types of provisions.

The Lord Advocate conceded this point by admitting that the Parliament of Great Britain ‘could not’ repeal or alter such ‘fundamental and essential’ conditions."

In other words the UK Parliament presumes it holds its sovereignty over all the UK on the basis of the purely English constitutional concept of the 'Crown in Parliament'. This is one area of legal and constitutional practice which the UK Parliament has no power to change or enforce as it is excluded from doing so by article 19 of the Treaty of Union under which Scots Law and constitutional practice comes under the protection of the  'fundamental and unalterable' and is why the Claim of Right (Scotland) 1689 remains 'in law' to this day. It leaves me wondering, with a majority of SNP MPs now at Westminster, why we continue to play along with the UK Parliamentary sovereignty game when in reality the UK Parliament's sovereignty is limited by article 19 of the 1707 Treaty of Union and operates on daily basis in breach of 'such ‘fundamental and essential’ conditions.' conceded by the Lord Advocate, on the UK Parliament's behalf, in McCormack (1953). Under Scots Law and constitutional practice these SNP MPs and the other three MPs represent the considered will of the people of Scotland at Westminster as the MSPs do within the parliament at Holyrood. Failure to do so technically leaves MSPs and MPs open to removal, via the Claim of Right statute which protects the Scottish people from misuse of their considered will by those in authority from the Queen down.

It awaits someone in Scotland's legal and constitutional world to bring down the chopper of the Gordian Knot which is the UK's 'unwritten constitution' but they will not because to do so brings chaos and further instability at the heart of UK Government which would compound and further increase the economic instability already generated by Brexit. For a start it would bring the Scotland Act tumbling down around our ears and leave the Scottish Parliament in a technical limbo as to where its authority to act or gather taxation would be derived from. So independence involves cutting these deep and convoluted UK legal and constitutional presumptions to free Scotland in a way which maintains our political and economic integrity.

Then we have to decide just what we mean by 'independence' is it an 'isolationist position' where we start from point zero and decide again which groups and alliances we are to be part of or is it being an 'autonomous nation state' which is continuing on with its current advantages of being part of the UN, EU and possibly Nato in continuation of its current relationships as part of the current UK?

The recent referendum which has ended in the Brexit morass made it clear the majority of Scots are looking to an independent Scotland as an 'autonomous nation state' remaining within all its current international agreements and obligations it already undertakes as part of the UK.

This, for now, is the best current measure of the 'considered will' of the people of Scotland and being followed by the SNP Government at Holyrood in its negotiations with organisations such as the EU while many now feel the Tories at Westminster are getting cold feet as problem and excuse is thrown up as reasons to delay the initiation of EU secessionist Article 50.

Independence does not mean isolating ourselves off from the world then going for some sort of international pick and mix but requires our engagement in the shared aims of many countries not just in the EU but across the world.

The nation of Scotland has a worldwide respected tradition of its active involvement for the good of all in politics, science, economics, innovation and finance. Whether it is in Japan whose 19th Century modernisation and creation of its Mitsubishi industrial giant lies in the hands of a Scot from Aberdeen more famous in Japan than in his native Scotland or the USA whose own constitution lies heavily influenced by Scotland's 1689 Claim of Right in its statement of a sovereign people to whom government must bend. Maybe someone should remind the current presidential runners in the USA of this basic requirement as they seek to serve their own and their pay masters self interest at the expense of the people.

Independence is for most Scots is an outward looking, encompassing proposition and long may it stay so.

1 comment:

  1. "Independence is for most Scots is an outward looking, encompassing proposition and long may it stay so."

    I'll second that.