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As you may recall, I recently wrote an article on the reasons why we need to move towards a section 30 order, what a section 30 order actually is and of course why we need to allow Westminster to actually refuse that order. Considering it was nearly 5000 words, I am not going to pull it apart in this article nor explain the details in it because that would make an already long article excessively long but you can read the original article here, which I would highly suggest because it will give this article context.

A message to Theresa May and the Tory Cabinet

Instead, I would like to take a moment to discuss the discussion surrounding that article. The primary purpose of writing it, while promoting the call for section 30, of course, was to stimulate the debate around the current constitutional circumstances and I am pleased that it actually has.

I was recently contacted on Twitter by the Columnist Jason Michael McCann with regards to a possible flaw he saw in the article and that he would be responding to it in an article of his own, which is great because finding flaws is part of the refinement process in any logical set of steps and debating these things allows those watching to gain a new understanding of the complexities of constitutional processes. You can read Jason’s article here.

Since then, Gordon Ross (AKA Indycar) has also started discussing Section 30 and other matters relating to this subject which is brilliant because the debate surrounding it is informing the electorate and imparting knowledge on how the system actually works. You can watch Gordon’s video here.

Now Jason and I are in agreement on a lot of things including that the most likely response from the Westminster Government would be to refuse a Section 30 order. At the point of refusal and how we proceed from there or the results of that refusal are where we begin to differ.

In his article he stipulates:

His very next sentence is where we begin to snag. After playing by the expected rules of the game, he writes, “no court would deny Scotland a fair deal, enforced at an international level.” This coming Monday will be the first anniversary of the 1 October referendum in Catalonia. Now, hands up if you can see where this is going. What Keatings is suggesting is precisely the gambit played by the Catalan government, and it discovered at the very last moment what happens when power is forced into a corner – it changes the rules.

This ability of the dominant power to change the rules to suit its purposes ends the chess model. This is no longer a board with a shared set of rules or even the same balance of power, rendering pointless Keatings’ assumption of the stalemate Theresa May will face. If she refuses, he writes,

Now, this is actually something which I had intended to address in a future article, because the legal side of things is extremely complex and requires a lot of energy to translate into layman’s terms, something which I had intended to do in a few weeks when I came out of hospital but none the less, it is a good question to put on the table and one which I believe needs to be addressed.

Now before I continue, please make sure you have something to drink because this is a long article covering an array of subjects. It will give you a better understanding but it is intensive, so be prepared to have your bum on the seat for a while.

Now breaking down the above two paragraphs by Jason, we can reasonably pull several points from it which I can answer in greater detail. The first is that Jason’s assertion is based on his belief that I am advocating the same approach as Catalonia, I am not, I am actually advocating the cart before the horse rather than the horse before the cart. Which might sound strange at first but once I explain you will understand more clearly.

In order to understand where I am going with this, I must first explain a little bit about the differences between Scotland and Catalonia.

The first major difference is in the constitutional makeup between Spain and the United Kingdom. The UK is what is known as a union of constituent nations, Spain, however, is what is called a unitary state. To compare them is massively complex but many scholars define the Spanish political system as “asymmetric federalism” which to be fair is a slight overstatement because the country doesn’t fulfil the minimum conditions to be called a federation. The best way to describe it is to include the United States or the Russian Federation. They are fully fledged federations which have a group of states each with autonomous goverments at state level, independent in how they run their internal affairs with a central federal government. Spain on the other hand is somewhere between a devolved settlement with a monarchy and a federation. Somewhere in the middle. Or to put it cheekily, it would be the ugly love child of the UK system and the United States. Unfortunately for catalonia, the love child is called damien and has a rather large dog!

The easiest way to explain it is that under devolution, that is to say the relationship between the UK Government and Scotland, the law defines what is reserved to Westminster and the basic rule is that what is not reserved is devolved. That is to say that what is not reserved to Westminster (which is defined by the Schedule in the Scotland Act) the Scottish Parliament can legislate on.

In Spain, however, that is flipped in the opposite direction, what is devolved is specified whereas the rest comes under the remit of the Spanish Government.

The other major difference between the UK and Spain is that the UK does not have a written constitution. It has a set of laws and a set of precedents which have formed what is basically an evolving constitutional arrangement. It is, to be quite frankly a pain in the backside because eveeeeeeeeerything is open to interpretation. Spain on the other hand has a clearly defined constitution. The problem though is that the constitution of Spain was enacted in 1987 during the transition from Francoism and other than tinkering around the edges it hasn’t really evolved that much.

As a result (and this brings us to damiens big dog) the constitution of Spain has quite draconian provisions in it, like section 155 which Rajoy and Co used to beat poor Catalonia over the head with. It stipulates:

If a Self-governing Community does not fulfil the obligations imposed upon it by
the Constitution or other laws, or acts in a way that is seriously prejudicial to the
general interest of Spain, the Government, after having lodged a complaint with
the President of the Self-governing Community and failed to receive satisfaction
therefore, may, following approval granted by the overall majority of the Senate,
take all measures necessary to compel the Community to meet said obligations,
or to protect the abovementioned general interest.
2. With a view to implementing the measures provided for in the foregoing
paragraph, the Government may issue instructions to all the authorities of the
Self- governing Communities.

In a nutshell, this provision within the Spanish Constitution is basically a blank cheque for the central government of Spain to hammer the self-governing communities (devolved administrations) with.

In addition, the Spanish Criminal Code has other draconian measures in it like Article 544 which stipulates:

Conviction for sedition shall befall those who, without being included in the felony of rebellion, public and tumultuously rise up to prevent, by force or outside the legal channels, application of the laws, or any authority, official corporation or public officer from lawful exercise of the duties thereof or implementation of the resolutions thereof, or of administrative or judicial resolutions.

So in other words, the Spanish Government ordered Catalonia not to try and gain independence. When they refused to comply with that fundamental breach of their right to self-determination, the Spanish Government brought out draconian measure number one, namely the Spanish Criminal Code, classifying them as engaging in sedition which then opened door number 2 in the constitution and they enacted Section 155 by classifying the alleged sedition (with a dash of a trumped-up charge of misappropriation of funds for some drama) thereby deeming the Catalonian government as acting against the general interest of Spain and on that basis they suspended the Catalan Government and then pursued people like Clara Ponsati by trying to abuse the European Arrest Warrant to hunt them down.

By comparison, however, the Scottish situation is slightly better and for once, the Acts of Union (and I say acts because there were actually two of them, one passed in each parliament) have done us a favour.

You see, Scotland has its own separate and distinct legal system which was written into the Articles of Union passed with Amendments in the Parliament of Scotland, and ratified by the Touch of the Royal Scepter at Edinburgh, January 16, 1707. Article XIX (numeral time) states the following:

‘That the Court of Session, or College of Justice, do, after the Union, and
notwithstanding thereof, remain, in all time coming, within Scotland, as it is now constituted
by the Laws of that Kingdom, and with the same Authority and Privileges, as before the
Union, subject nevertheless to such Regulations for the better Administration of Justice, as
shall be made by the Parliament of Great Britain;

Now without going too deep into it, in Scotland, the court’s system consists of three separate courts – civil cases are tried in the courts of session, criminal cases in the court of judiciary and also the Sheriff Courts which are for both civil and criminal cases. Scotland has its own distinct judicial system and its own jurisdiction, distinct and separate from England. Rather than being solely a Common Law system which relies solely on precedents, it contains elements of civil and common law. So it has both precedents, that is to say, judges and sheriffs making a decision today, refer to previous rulings to give them direction, it also has a specific set of rules which are codified, set in stone and which is used to balance against the application of precedence. This is extremely important and I will explain why in a minute.

In England, the court’s system consists of judges who make a decision based on legal precedent alone. That means that the judiciary, that is to say the judges refer to previous judgements to make their decisions and there is no codified guidebook so to speak. That’s great if you are party to a case where there is legal precedence in your favour, but not so good if you have a slim set of precedents to base your case on. It also means that there is a substantial risk of what I would call compounded error. That is to say a judge goes rogue in a particular case, that case is then referred to in another case and the judiciary of England being as it is, they typically side with previous precedents. That means you now have two bad precedents which when the third case calls of a similar nature, the judge then sides with his two previous brethren and so it goes on. It’s great if the precedent protects your rights but not so great if it is something that usurps them.

Which brings us back to Scotland. Our distinct legal system means that there is a guidebook which allows a reversion on an abhorrent decision. It also means that we can use precedents of the past but the codified book stops precedents from getting compounded and going completely off course.

So why am I telling you all this?

Well! To put it simply, When the United Kingdom joined the European Economic Community (as it then was) on 1 January 1973 with Denmark and Ireland, the Constitutional makeup of the UK was unlike any other state that joined. As a consequence, very specific arrangements had to be made with regards to the constitutional arrangement between the rest of the UK and Scotland. When the Treaty establishing the European Economic Community (EEC Treaty) was first signed, this had to be brought into UK Legislation in the commons. This gave birth to the European Communities Act of 1972. That act is important because throughout it are very specific mentions of Scotland. In other words, Scotland was defined as a separate legal jurisdiction in the primary legislation which took us into the EU and classified us as a separate and distinct legal system. As treaties and laws have evolved and as new laws have been created, the same stipulations have been made in almost every piece of primary legislation applicable in Scotland. That’s because as new acts of the Commons come into force the provisions from that act are transferred as a matter of course.

This includes the Scotland Act which is the legislation which underpins the Scottish Parliament and Devolution and now I think you see where this is going.

The first thing you need to know about the UK is that treason does still exist, however, it is defined as disloyalty to the crown. To understand why that is not a factor, you need to know that the royal family actually has nothing to do with independence. The monarchy has been the same for Scotland and England since 1603, almost 100 years before the Union Treaty. In other words, the Union of the Crowns and the Union Treaty is not the same thing, one happened one hundred years after the other.

That means that a referendum on independence has no effect on the monarchy, a subsequent referendum would be required to abolish the monarchy in Scotland. Which is something I make a point of telling people who refuse to vote yes because they like the royals. But I digress.

The reason this is important is that you cannot act in a manner which is disloyal to the crown if the crown will still be the crown if you vote for independence. Ergo treason does not apply.

So what about sedition? Well………

…a seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of His Majesty, his heirs or successors, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite His Majesty’s subjects to attempt otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst His Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes of such subjects.

An intention to show that His Majesty has been misled or mistaken in his measures, or to point out errors or defects in the government or constitution as by law established, with a view to their reformation, or to excite His Majesty’s subjects to attempt by lawful means the alteration of any matter in Church or State by law established, or to point out, in order to secure their removal, matters which are producing, or have a tendency to produce, feelings of hatred and ill-will between classes of His Majesty’s subjects, is not a seditious intention.

…………is what the law WOULD say if Scotland didn’t have its own distinct legal system and it was a reserved matter to Westminster and the SNP hadn’t thrown it out with the rest of the garbage when they passed section 51 of the Criminal Justice and Licensing (Scotland) Act 2010 which abolished the common law offences of sedition and leasing-making with effect from 28 March 2011. Score one for the Scottish Parliament!

So that’s the first major difference between Scotland and Catalonia, none of our politicians in Scotland can be tried for sedition, nor treason. Of course they could be charged with other things but because they are resident in Scotland, the arrests would need to be made by Police Scotland which is devolved, the case would need to be presented for the crown by the procurator fiscal, which is devolved and it would have to be tried in the Scottish Courts which again is devolved.

The other big thing when it comes to Catalonia was the EU. Now, during the run-up to the suspension of the Catalan Government, I saw many ask the question of why the EU hadn’t stepped in. Without going too deep into it, the EU is a political organisation and typically will not involve itself in territorial or constitutional fights within the states of members unless both parties agree to mediation. This is a well-established precedent. Therefore the primary recourse in such situations is the European Courts. However, in order for something to be considered, it must first be referred to them for consideration. This requires an application.

The problem comes when you look at the process. While there are circumstances where the court will hear cases immediately, typically the rules are that persons must have exhausted the internal court’s process within the country they live before it can then be referred to the European Court of Human Rights. The problem is that due to the draconian laws of Spain, the Catalan Government did not have the ability to truly explore the internal legal process within Spain. This was partly down to the resistance but also because the judiciary is not free to interpret the internal law of Spain outside of their Constitution. As for direct referral, well they just didn’t have the time to implement it before the axe fell due to the aforementioned draconian measures.

The difference here in Scotland though is night and day. Schedule 6 of the Scotland Act 1998 stipulates that a constitutional argument or a disagreement between Westminster and Holyrood is deemed as what is called a “devolution issue”. Because of the way our court systems work, the process which we would follow would be to take any constitutional matter before the Court of Session in Edinburgh. There are two parts to the Court of Session. The Outer House and the Inner House. The outer house is the normal place where normal matters are settled. The inner house is the appeals court for the court of session.

Typically a devolution issue would have its procedural hearings in the outer house with one judge. Then when it was time for the full hearing on the matter it would be transferred to the inner house where 3 judges would sit.

So if Scotland voted for Independence, to enforce that it would first go to the Outer House. It would then be deemed a devolution issue and according to the Scotland Act, a court consisting of three or more judges of the Court of Session may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Inner House of the Court of Session. The inner house having the power to rule on such matters.

But a ruling against Westminster in such a case is probably going to make them want to throw a wobbler and so they would then want to refer it to the Supreme Court. Now, this could result in one of two things happening. Under the Scotland Act, Any court consisting of three or more judges of the Court of Session may refer any devolution issue which arises in proceedings before it to the Supreme Court. Note the very specific qualifying language which I directly copied from the act. “may refer”. The Court of Session has the prerogative to refer it to the Supreme Court, however, it does not necessarily mean that it will. It might refuse. Of course, the UK Government has the right to apply directly to the Supreme Court itself and it more than likely would hear it.

So we can pretty much say that whether or not the Inner House of the Court of Session kicks it up to the Supreme Court doesn’t matter. It will likely go there anyway.

So now we have two options. The Supreme Court rules in Scotlands favour, or it rules against Scotland. But you know what? I don’t particularly care what the UK supreme court says because ultimately all of the judges are non-sitting members of the House of Lords. That might sound like a brazen statement to make but it’s true.

Which brings me to the very interesting question Jason Brought up on Twitter last night.

This comment is a fair assessment which is based on the premise that compliance is actually compliance. You see Jason’s original comment in his article is also based on that premise and I agree. To follow the rules of a system which seeks to subjugate you is pretty stupid. Unless the reason for following the rules is simply a stepping stone on the path to an inevitable conclusion from which there is no escape.

The greatest battles in history have always been won by using an opponent’s own strengths against them, not by trying to fight against a superior force by trying to match them on equal terms. The current constitutional situation allows the possibility to take the same rule book which has subjugated Scotland for 300 years and use it to smack Westminsters knuckles. The very framework which they are subjecting us to is their Achilles heel and the irony is that they created the legislation and precedents to do it. So this is about turning what at first seems to be compliance into non-compliance but doing it in a way which creates an oxymoronic situation by creating an entirely new terminology, non-compliance done using a legal framework they set up, thereby creating a new phrase which I term “lawful constitutional non-compliance”.

Now, this probably sounds extremely strange or even a little bit ludicrous at first but as I explain, it will become clear to you. You see the goal is not to have Westminster capitulate, the goal is to have them choose one of two courses, either to wear themselves out and back off, or push their buttons in a way that forces the question of constitution through the internal legal system so fast that it makes their head spin, rapidly moving to a point where it forces it out of the UK legal system and out of Westminster’s hands completely.

You will remember me saying above that Catalonia would have had recourse if they had made an application to the European Courts but they never got the chance because the proverbial crap hit the fan.

For us, those draconian measures do not apply. In Spain, the rules were already in place. In the UK, however, there are no such rules which the UK could implement. They would have to actually create new laws in order to wield draconian measures like Spain did to Catalonia, something which they could not do quick enough because here’s the kicker. If it ends up in the Supreme Court, self-autonomy being a fundamental human right, we can refer the matter to the European Court on Human Rights and ECJ, which until we are out of the EU, the UK Supreme Court is subordinate to.

The ECJ deals with compliance with EU Law, the ECHR of course deals with fundamental human rights pursuant to the European Convention on Human Rights. The matter of Scotlands independence and subjugation by the state would cross both those boundaries and would elicit a good hard smacking from both courts on application from Scotland.

The even bigger beauty is that because Scotland has its own legal system, the only way this would end up in front of the Supreme Court of the UK is if Scotland won in the Court of Session. If we lost, then that means that the UK would have won. But you can’t appeal a win, that’d be stupid. Which means the right of appeal falls to us, which means we’d be the ones making the application, not Westminster and guess what you can do in Scotland without having to go to the Supreme Court first? Certify an application as valid to the European Courts directly.

So to put this in perspective, following the rules does two things:

  1. It establishes the empirical evidence that Scotland had no choice but to hold a poll without consent.
  2. It shows we tried everything within the current framework.
  3. It eliminates all of the steps and ticks all the boxes to get us to the right destination – namely outside of the UK legal system

Now the one other thing that is important in all of this is the legal battle itself. While there will be substantive evidence of the UK acting in bad faith already with regards to constitutional matters and with regards to our fundamental rights, the cases themselves also give more evidence and weight to the argument that the UK system is deliberately designed to restrain Scotland.

Now at some point in this journey through the legal quagmire, the Scottish Government is going to invoke Section 4 of the Human Rights Act. Now it is important to remember what I said earlier about the HRA. It is the law in the UK which brings the European Convention on Human Rights into law domestically. Section 4 deals with what is called “incompatibility” and states “If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility”.

What that means is that at any point in the legal process, the Scottish Government can (and probably will) demand the Court of Session invoke section 4. What that will mean is that the court will have to hear whether UK primary legislation is actually compatible with the European Convention on Human Rights. Which means that the court cases being fought will not just be about human right and about the constitution, but in fact, the primary legislation such as the Scotland Act which created devolution and a raft of other legislation itself will actually be put on trial.

The Court of Session has the power to make such a declaration which has the effect of an instruction that the law must remain as-is until the incompatibility is removed, it can stop new legislation from being allowed to be given royal assent and it can also force the Westminster government to make changes to existing legislation which would undermine the European Convention on Human Rights

That means we get to put the whole Westminster system on trial. Something which can then be relied upon at international court level. It will be done in a real court, not in the court of public opinion by a biased media.

This also applies to any would-be legislation that Westminster might be thinking of passing. Which would also be another devolution issue and on application to the court (like Westminster did to Scotland with the continuity bill) a new law cannot become an Act or be enforced until the court has tested it to see if it is compatible with the European Convention on Human Rights.

As I said before, Scotland also relies on the rule of precedent. One of the biggest precedents we have is the 2014 referendum. The SNP won the election on a mandate which included a vote, the UK Government, fearful of a poll without consent then agreed to a referendum.

The moment Westminster agreed to a section 30 order based on an election manifesto pledge, they created a constitutional precedent which is enforceable in court for future circumstances which are similar. Like the SNP manifesto for Holyrood, the vote in the Scottish Parliament on section 30 et al.

As we all know, the recent 2015 manifesto of the SNP included a strict provision which was two-fold.

It stated:

“The Scottish Parliament should have the right to hold another referendum…if there is a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out the EU against our will.

Now, this part of the manifesto was a double-edged sword. The first being a “significant and material change” which is in reference to the 17 major promises made by the UK Government and Better Together which have never been delivered in full and a second specific provision “Scotland being taken out of the EU against our will”. These are clear manifesto pledges. In addition this was directly quoted in the first letter to Theresa May for a section 30 order which makes it a demand, not just a request.

Then we had the Scottish Parliament vote, that’s the second mandate.

Now we have the case on the continuity bill which is going through the courts and this is important because it is legislation which provides for all matters devolved under the Scotland Act 1998 and subsequent legislation that are currently under the control of the European Union to be repatriated to the Scottish Parliament upon ‘exit day’. In otherwords stopping the powers going to Westminster so they can undermine them. This legislation differs from the UK parliament’s EU withdrawal legislation, as it provides more power for parliament instead of producing executive power, enshrines environmental standards and human rights from the EU into Scots Law and provides for the Scottish Parliament to imitate future EU laws and regulations in devolved area post-Brexit.

The UK Government has taken this to court because it knows that the bill was put forward before the European Union (Withdrawal) Bill made it through at Westminster. As it was not defined in the Scotland Act as “reserved” it was competent at that time for the Scottish Government to legislate on it. Which apart from really annoying Westminster will also set a massive precedent if it is given the thumbs up by the Court of Session in Edinburgh.

The important thing to understand is that legislation passed in Scotland, because of the special provisions we have because of our separate legal system, always enshrine the European Convention on Human Rights and other EU laws within them. That includes the Scotland Act which is the legislation that created devolution. So anything which undermines the inseparable link between EU law and Scottish Law including the Scotland Act and all of the other powers coming back from Brussels is not just a devolution issue, it is a European Issue. All of which is permissible to bring before the European Courts.

In any case, the precedents set by manifesto and by the Scottish Parliament are in-line with the 2014 methodology which Westminster acquiesced to in 2014. That means it’s a precedent, but more importantly, an enforceable precedent and deviating from it means it can be challenged here in Scotland, and if that doesn’t work at the Supreme Court and if that doesn’t work, the European Courts because all of it is under the remit of European Law.

However! As with all things, there is a massive caveat! To use the European Courts, we must be part of the European Courts system.

Theresa May has consistently stated that she wants out of the European Convention.

Actually! That’s not true, she has consistently said she wants to scrap the Human Rights Act since she was home secretary. However, in order to do that, we must first be withdrawn from the European Convention on Human Rights. The sticking block is the EU. Outside of the EU, the ECHR is optional, but inside the EU it is not. All member states must subscribe to the ECHR as part of what is called the acquis, that is to say, the rules of membership of the EU.

Make no mistake, that is the end game here. The Tories want a hard brexit so they are no longer subject to the ECJ or the ECHR, that in turn means they can scrap the Human Rights Act and with the European Union (Withdrawal) Act containing provisions which allow the Tories to modify any provision of legislation they deem “deficient” without parliamentary scrutiny, that means they can do it.

The UK bill of rights will not contain all of the rights of the ECHR, they will contain what the Tories say you can have, not what you are actually entitled to from birth and certainly not things which would interfere with their vested interests.

That makes this entire situation a race to the finish.

Unlike Catalonia, there are no provisions for charges of sedition against Scottish MSP’s calling a referendum vote and seeking to enforce it.

The Scottish Parliament is, however, at risk of being shutdown though because, despite the 2014 promise to make it a permanent institution, the UK Government didn’t. That being said, the beauty of the Scottish Courts system being autonomous from the inception of the UK means that the SNP, even if there was no parliament could still challenge all of the above.

As for the European Courts, well that gets even better because a single person can make an application if they were so inclined. The likely way that the Scottish Government would do that would be to assign legal counsel to the ECJ and ECHR on behalf of “the people of Scotland” rather than on behalf of the Government. This brings us to another important part of the puzzle. The claim of right.

The claim of right is a document, which was recently re-affirmed by the Scottish Parliament and by Westminster which stipulates it is the sovereign right of the people of Scotland to define their own constitutional future. It’s called the claim of right, not the claim of recommendation and adding it to all of the precedents and all of the incompatibilities between a position the UK might take, primary legislation and of course the utter contempt and disrespect, it is highly doubtful the international courts would side with the UK.

In addition, this is not just a case of EU law. This path takes us into the realm of uncontestable international law. The big one being the International Covenant on Civil & Political Rights, which is extensive but in particular, one article shines through. Article 3 of the International Covenant on Civil & Political Rights, which provides an accessory non-discrimination principle. Accessory in the way that it cannot be used independently and can only be relied upon in relation to another right protected by the ICCPR.

In the case of Scottish Independence, the accessory would be Article 1 paragraph 1 of the covenant which stipulates “All peoples have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.”

Furthermore, and I would emphasise this particular provision which is contained in Article one and stipulates:, “The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”

That means that not only are the UK, as a signatory of the covenant bound to the precedent set in 2014 but by virtue of Article one, we have the fundamental right to self-determination under international law. They UK Government is bound to respect that because there is no UK precedent, nor legislative power which allows them to derogate from that fundamental right. As a signatory, they have to promote that right and have to enable us to exercise that right or they are not just breaching EU law but also international law in general under the charter of the United Nations. That could lead to economic sanctions against the UK for acting unlawfully.

So in summation, Scotland is not Catalonia, we don’t have the same Francoist provisions against us. We have a separate and distinct legal system where rulings are applicable at a UK level. We have the option to go to the Supreme Court but none of these is actually what matters, there are merely tools to establish a chain of events that prove the undemocratic nature of the system we are subject to. Call it an act of lawful rebellion by smacking Westminster with their own rule book. The next stages after that are what are important, where all of that precedent and human rights law comes into play.

Spain and the UK are not the same things constitutionally and nothing could sum up that fact better than the words from the Spanish ministry of foreign affairs responding to a BuzzFeed article about Nicola Sturgeon’s letter to Spain over Catalonia:

Spain cannot apply the United Kingdom’s solution for the Scottish issue: our historical origins and our legal-political systems are different,” a spokesperson for Spain’s ministry of foreign affairs told Buzzfeed News. “Spain has a written constitution, submitted to the vote of all Spaniards in 1978 and approved by 87.7% (and 91.4% of the Catalonian voters), which makes the rules of the game clear.

“The Spanish constitution enshrines the Spanish nation as a political and social reality prior to the constitution itself. Therefore, national unity is the basis of our constitution. There are established procedures to amend the constitution. Therefore, in our legal framework, a referendum in the form proposed by the United Kingdom to Scotland would only be possible if the constitution were amended.

“The British case is an exception to an overwhelming majority of written constitutions that do not recognise this possibility. Recent judicial decisions in Germany and Italy have underlined the same constitutional approach as Spain. More concretely, according to Germany’s Supreme Court, ‘there is no room under the constitution for individual states to attempt to secede’.”

So from this direct quote, you can see that the constitution of Spain which is roughly the same as Italy and Germany, the rules are entirely different. UK constitution is uniquely different compared to Spain, Italy and Germany.

We should also bare in mind that this is not just a case of one constitutional question but actually two. The question of Scotland in the UK and Scotland in the EU. The first of the two, legally speaking, is subordinate to the second. The European Courts are bound to enforce human rights under the convention and they are bound to enforce the rules of the European Union. Scotland seeking to engage its democratic rights in order to stay in the EU means that the courts are already backed into a corner. They would have to side with Scotland. That’s the end game.

One core fundamental premise of the EU that the European courts are bound to (another precedent) is the idea of protecting the unity of the EU. That means by precedent, they would have to lend more weight to the ideal of allowing Scotland to stay, which requires Scotland to be outside of the UK.

The irony here is that us leaving the UK could actually help our friends in England and Wales. You see the UK is a union of England (including Wales) and Scotland. Which means the commons and lords are built on that basis. Our withdrawal means massive constitutional change at Westminster which opens the doors to the rest of the UK to push for a more federalised system and also to abolish the lords and replace it with an elected chamber.

During negotiations to leave, Scotland has massive leverage.

You see the current Brexit negotiations rely on Scottish Assets as part of the deal. Now negotiation wise with the UK, when it comes to the national debt, the calculation is simple. They either give us 8.4% of the assets of the UK or we don’t take 8.4% of the debt of the UK. This was clearly defined in 2014 when the UK Government issued a written notice to the markets stipulating the UK assumed all liability for all debts of the UK. That’s another precedent which the UK Government will have to fulfil. They can either give us 8.4% of the UK’s assets so we can setup our national infrastructure for public services we would need, or we don’t take 8.4% of the debt. Which means not only does their tax base drop by 9.3% overnight but they also end up with the additional sum of debt to service. It’s a double whammy.

On the matter of the 6000 square miles of Scottish Water Annexed in 1999 while the Scottish Parliament was being setup, that would automatically revert back to Scotland under international law. Now you may think that is a bold statement to make but it is a fundamental truth. Scotland losing its assets is a myth or should I say a lie perpetrated by Better Together to scare the Scottish People into voting no. A countries assets and land are not open to interpretation under international law.

The assets of a nation, that is to say, its land and natural resources are not open to debate. They are clearly defined in what is known as the UN Constitution on Law of the Sea which defines international boundaries and also defines what are known as Exclusive Economic Zones. These are the area of the coast which belong to a country extending out from their shores. This is 200 nautical miles from a countries coast, except where two countries are closer than 400 nautical miles in which case the line is drawn up the midpoint between the two. This is what would happen between Scotland and Northern Ireland.

On the matter of the UK market and not getting access. Well, that is the single most stupid assertion yet by would-be detractors of the imperialistic British state. There is no way that a UK outside of the EU is going to deny trade with its next-door neighbour, that would be suicide.

Particularly when Scotland would effectively be their route of access to the EU and a friend who could promote England, Wales and Northern Irelands access to EU trade routes.

But Scotland could just as easily be an enemy to their access if they were to be idiots in the negotiations of Scotland leaving the UK or for other reasons on trade etc. As a member of the EU, Scotland gets a say on deals with the rUK. Trade deals as a matter, of course, have to be ratified by all the EU members as a bloc. We would have to put pen to paper just like the other 26 nations in the EU to ratify any deal. This gives us huge leverage over the UK in any negotiations.

But what of Scotlands membership of the EU? Well for a start, the EU has set a clear precedent in the Brexit negotiations that it will not compromise on things which would diminish or undermine the European Union or the Single Market. The ejection of 5.4 million citizens (namely Scotland) would do exactly that. Facing an rUK leaving and a Scotland wanting to stay, it is likely cooler heads would prevail.

There are two options for membership. Re-application and renegotiation.

The most likely of the two is renegotiation. You see, leaving and coming back would take years and billions of pounds. In addition to that, the deal on the table for Brexit is dependant on the resources, assets and population of Scotland as part of the UK.

That means that if Scotland leaves the UK before the end of Brexit, those material items are no longer available as part of the deal. This poses a problem for the UK because they would have to request the European Council Extend the article 50 process to renegotiate.

That gives a unique opportunity to Scotland and to the EU with regards to Scotland. If they are negotiating a deal with the UK again anyway, then both the UK and Scotland are still technically in the EU. That means that the path of least resistance for all concerned is a renegotiation of Scotlands membership of the EU inside the bloc to remain in the bloc. This can be done under Article 48 of the Lisbon treaty which allows changes to existing treaties.

Several members of the European Council have stipulated this would be the preferred option but it would be totally dependant on Scotland applying for it before the end of Brexit and that would require Scotland to be independent before the end of Brexit.

Now the two things that constantly come up here are that Spain would interject and veto and the “Euro”.

Ironically, Spain has categorically ruled out such a veto.

Esteban Pons, a Member of the European Parliament representing Spain’s ruling party told the BBC in an interview when asked about it:

“No, because if you are thinking about Catalonia the situation is very very very different to the Scottish situation.”

Other political figures in Spain say the same.

Two members of Spain’s joint committee on the EU stated in February 2017 that those familiar with the two situations in Scotland and Catalonia are aware that they are totally different and the members could not foresee any reason why Spain would stop an independent Scotland joining the EU. The EU committee as a whole provides the government with advice on how to deal with issues within the EU such as how it implements European law into its national law and the approach it should take on new EU members.

Fernando Maura MEP, one of the committee’s spokespeople, said that the situations in Catalonia and Scotland are “very different” and, when asked if Spain would seek to block an independent Scotland from joining the EU, responded: “No, not at all.”

Maura went on:

“The difference between Spain and the UK is the constitutional system. In the UK, there is no constitution to say Scotland cannot leave the United Kingdom or have self-determination. This is not the case in Spain, there is not this possibility.

“If Scotland is independent from the United Kingdom, Scotland can negotiate with the European Union to become part of it. If that’s the case, Spain has not anything to do but negotiate in terms of our interests.”

Maura added: “If the UK leaves the EU, Scotland in one moment can be part of the EU if Scotland has independence from the UK. It will be a sovereign state.”

A spokesperson for the vice chair of the Spanish parliament’s EU committee, Jose Cano, told also said while the Scottish government is unable to negotiate with any EU member state while it’s part of the UK, he was sceptical of claims that Spain would block an independent Scotland’s future entry.

“I have never read such comments from any Spanish political leader,”

“If Scotland gets its independence, in a legal referendum in the United Kingdom, if that is legitimate then Scotland will claim independence and be accepted by the international community.

So in a nutshell, Spain have categorically said that they would not block Scotlands membership of the EU and logic dictates that the path of least resistance for all concerned is an Article 48 renegotiation.

But let’s say for a moment that we were ejected. The so-called “queue” to rejoin is actually a myth.

It’s not actually a queue in the ordinary sense, what it is, is the standardised time taken by nations to bring their judicial, economic and legislative framework into line with the European Union for the sake of membership.

That’s a lengthy process for a new prospect nation to undertake. Unless of course, you happen to be a newly minted independent nation, who because you had a separate and distinct legal system from the union you broke away from, you were already compliant with the requirements of EU membership, in which case it would be a much-accelerated process.

The unionists attempt to scare people using this line about a long wait is just a scare tactic. Comparing Scotland to countries in the “queue” like Serbia is like trying to compare a loaf of bread to an elephant. One of these things is not like the other. One of these things is just not the same. This is not a mere assertion, it is based on empirical fact like when Iceland overtook Turkey when both were negotiating at the same time. Iceland was more compliant than Turkey in terms of its laws and economy. Scotland, on the other hand, is almost completely compliant because our laws already take into account EU law.

But what of the dreaded “Euro”? Well! That too is another unionist myth perpetrated to scare the crap out of Scotlands citizenry. While it is true that the acquis of the European Union (conditions of membership) states that the Euro should be adopted. This is not a hard and fast rule. Indeed derogations of the acquis are allowed, or did people not notice we are still using the pound 🙂

The UK has such a derogation in place. It simply requires a vote of the European Council to do it. It’s not a huge issue. Particularly when you realise that the reasons for allowing such a derogation far outway the reasons for stupidly trying to enforce the Euro.

To understand it, you need to know that you don’t just decide that one day you want to adopt the Euro. It is a very long process which takes at a minimum of two years. The economy of a country needs to be monitored for volatility over a minimum of two years. This is done by entering the countries currency into what is called the European Exchange Rate Mechanism II (ERM II). Only when the countries currency stays within certain margins for a certain amount of time is it deemed stable and consequentially the country is allowed to join the Euro. This is to stop the new kids on the block from destroying the currency union.

You will notice the qualifying words in the above currency “Countries Currency”. The pound in a currency union with the UK would not work (which isn’t the intent to adopt anyway, we intend to transition away from it to an independent currency) because both countries would not be in the EU.

So what of an independent currency? Well first we’d have to establish one, then we would have to enter that into the ERM II for a period of at least two years but probably closer to five, then we’d have to abolish that currency to transition to the Euro.

For every party involved that would just be costly and stupid. Not to mention it would hold up Scotlands membership negotiations of the EU. So the chances of the EU enforcing the Euro on us are virtually non-existent, especially considering the policy has never really been enforced since its inception anyway. Indeed only 19 of the 27 member states use the Euro!

The other thing is that EU countries will not want to hold up Scotlands membership, indeed the reason they would go the route of Article 48 over re-application is to protect their own citizens’ freedom of movement. Over 100,000 Europeans live in Scotland and vice versus. They’d want to protect the status of both sets of citizens in Scotland and in the EU.

The other thing is that remember this is not Brexit, we’re not negotiating to leave and have access. We’re simply becoming autonomous fully fledged partners. We’re taking a bigger role in being a member of the EU. So the negotiations will at the most have a few small issues, but absolutely nothing like the derision of Brexit. There will be no major issues because we will be friends negotiating to stay friends.

So you see, from a perspective of international law, Scotland is in a very good place. We cannot be compared to Catalonia and the UK cannot be compared to Spain. We have our own legal system by which to utilise and fight with and all of the precedents and laws of Scotland, the UK and the EU in combination with the inseparable links between Scottish Law and European Law give us massive power. This is in addition to the fact that our will to stay in the EU, which will neither be inhibited or vetoed by Spain or any other member, so long as we are independent, combined with the fact that obstacles touted by Westminster not really being an issue, we have the single most unique opportunity Scotland will ever have.

This is in addition to the immense leverage we have over the UK in leaving the EU as a result of our rights if we stay in the EU to be able to veto or otherwise cause issues for the rUK’s negotiations with the EU on all matters of trade. This is one of the reasons that Theresa and Co are so Scared. If we leave the UK while they are negotiating to leave the EU, we could, in turn, use that negotiation as leverage to ensure that they don’t screw with us on our leaving the UK.

I really wish that Catalonia was in the position of power that we were in because that would mean they would probably already be independent by now. That being said, being a fully fledged independent member of the EU outside of the UK means we lay the groundwork for their membership later on and we will also be a voice for them in Brussels.

 

 

 

 

About author
Martin Keatings

Martin Keatings

Pro-Independence Activist