The question of Scottish sovereignty is almost always presented and argued solely from a standpoint within the ‘UK politico-legal bubble’. That is a kind of snake eating its own tail. It feeds into itself, self-referencing its own authority – and the basis of that authority – and relies heavily on the precedent of self-agreement for its legality. This becomes apparent, as soon as, and only, when you remove the UK’s constitutional and legal arguments, with respect to Scotland’s status within the Union, from the context of its own self-reference. The real context of the ‘independence debate’ is not internal UK law at all but international law and principle.
The state titling itself the United Kingdom was created by international treaty. As Professor David Walker so elegantly demonstrated, it is simple nonsense to pretend otherwise. Two independent nations agreed terms for a political and economic union, for the creation of a new state and a new parliament and ratified those terms of agreement by acts of parliament. Those acts, in turn, gave force to the Treaty which thereby replaced both parliaments with a new body, the Parliament of the United Kingdom.
That this normal operation of a Treaty has been turned on its head by the Diceyan argument, (recasting the ratification by which a treaty comes into force as the ‘active principle’ in place of the Treaty itself), is an absurdity as close to the fairy tale of the Emperor’s New Clothes as it is possible to get. The only real argument to support it has been a circular argument one: Parliament is sovereign and therefore we can make anything mean whatever we want it to mean. The English principle of parliamentary sovereignty continued in the new Union because the Treaty was replaced by the English domestic Act of Union (at ratification) and this occurred … because the Parliament (English) was sovereign.
There are no words for utter absurdity of this position. Yet even doughty independence supporters, from MP’s to lawyers and judges, even those on the Supreme Court, have accepted and upheld it. This is the conditioning of a colonial mindset, whatever your definition of a colony, within which the constitutional basis of the new (1707) state begins with the English Magna Carta and stands unchallenged. What better illustration of the persistence of the colonial mentality of the empire and its establishment?
To really begin to see the wood from the trees, however, it is necessary to step outside the bubble of a Westminster/establishment system, including courts, jurists and commentators, which is almost entirely self-referencing. It has to be made to appear on the world stage, where its nakedness becomes immediately and breathtakingly obvious.
And for the greatest clarity, we should look outside the arena of the Scottish question, to the behaviour of the UK government – and its ‘follow-the-sovereignty’ legal system – in respect of international legal principle in general:
“More recently, in relation to the Internal Market Bill, former Conservative Party leader Iain Duncan Smith argued that through section 38 of the EU (Withdrawal Agreement) Act 2020 — which states that ‘[i]t is recognised that the Parliament of the United Kingdom is sovereign’ — the UK Government had ‘reserved to themselves the right to make clarifications’ in respect of the Withdrawal Agreement and were therefore ‘quite within their rights’ to rely on section 38 as a basis for declining to implement parts of the Agreement. These arguments are united by the erroneous notion that the domestic concept of parliamentary sovereignty somehow bears upon the position of the UK as a State under international law, thereby supplying the UK with a ‘get out of jail free’ card to be played when it finds itself inconveniently bound by international obligations. This illusion consistently bedevilled political discourse about the UK’s membership of the EU and has equally served to obfuscate debate about Brexit.
Criticism of the Internal Market Bill has so far resulted only in a limited concession from the Government, whereby a further vote in the House of Commons would be required to trigger the relevant ministerial powers. This, perhaps, is testament to the resonance of an exceptionalist argument that has long served the causes of Euroscepticism and Brexit and which plays well in political terms to certain domestic audiences. None of this, however, can change the fact — as international reaction has attested — that the argument disintegrates upon contact with legal reality.”
(Legal kryptonite? Parliamentary sovereignty, international law and the Internal Market Bill, Mark Elliott, Professor of Public Law and Chair of the Faculty of Law at the University of Cambridge, Legal Adviser to the House of Lords Constitution Committee 2022)
Allow me to repeat that critical statement: These arguments are united by the erroneous notion that the domestic concept of parliamentary sovereignty somehow bears upon the position of the UK as a State under international law, thereby supplying the UK with a ‘get out of jail free’ card to be played when it finds itself inconveniently bound by international obligations.
Now let’s consider that critique in the light of Scotland’s position within the United Kingdom:
Is the Treaty of Union an international agreement which imposes international obligations?
The usual ‘self-referencing’ answer from those who would answer no, is that since the state of Scotland was extinguished by the Union, the treaty no longer applies. (Based on what is known as the Diceyan argument, though he did not invent it.) This position, of course, has never been tested in international law. Were it to be, its fundamental deficits would be exposed.
Firstly, and most obviously, the nation of Scotland was not extinguished when the new state was created, any more than the nation of England was extinguished. In fact, Scotland retained territorial sovereignty through the institution of the Crown, and is, thus, a “stateless nation”:
“Under the articles of Union, Scotland surrendered its independent statehood but continued to be a sovereign nation. The status of Scotland as a stateless nation is fairly unusual internationally and has attracted particular sociological and political study…” (R Callander ‘How Scotland is Owned’ p. 43 (Canongate, 1998)
That an international agreement continues to apply in the case of nations, statehood notwithstanding, is so basic a principle in international law, it should not need further elaboration. It should not – but we are discussing these issues from within the coils of our tail-eating, legal-political UK snake. We might reference, therefore, the position of Native American nations (tribes) within the USA by way of example.
These remain sovereign nations within a larger state, their governments, with whom the original treaties were agreed, having been removed or reduced to the status of a local council. Tribal law still applies along with State and Federal law and still allows some exceptional rulings and decisions within the reservations. Language, culture and religion remain distinct though heavily threatened. And the conditions of every treaty with these nations have been violated in the expectation that the absorption of their populations into the larger State, (the coloniser), would allow the United States to avoid the inconvenience of meeting its obligations.
There are many differences, of course, between the plight of Native American nations and our own. The parallels with Scotland’s position, however, are startling. And the important point here is that, in international law, these treaties – however unlawfully imposed – hold good between the government that signed them, (the USA), and the stateless nations which now exist.
It has been international pressure, via the special representatives of the ‘tribes’ to the UN, that has led to ruling after ruling in the US Supreme Court, upholding their territorial rights. This, incidentally, has major implications for the territorial rights of Scotland as distinct from the rest of the UK)
In short, the continuation, or not, of the statehood of a signatory to an international treaty does not bear upon the obligations between nations or upon international law with respect of the violation by a state of the rights of a signatory nation, stateless or not.
Does the Treaty grant Westminster the authority to alter its terms at will?
The Treaty governed those conditions that were to apply in the nations within the new state. These include stipulations which establish its conditional character:
“And that the said estates of parliament have agreed to and approve of the said articles of union, with some additions and explanations as is contained in the articles hereafter inserted. And likewise, her majesty, with advice and consent of the estates of parliament, resolving to establish the Protestant religion and presbyterian church government within this kingdom, has passed in this session of parliament an act entitled, act for securing of the Protestant religion and presbyterian church government, which, by the tenor thereof, is appointed to be inserted in any act ratifying the treaty and expressly declared to be a fundamental and essential condition of the said treaty or union in all time coming.”
We are not concerned, yet, with the religious character of the condition but only with the ratification of a proviso to the treaty or union, on which the agreement between the two nations depends and whose violation is to render it void. This ‘precondition’ is not amenable to Westminster alteration. Even if it were true that every article within the Treaty of Union may be amended or repealed by the Parliament at Westminster, this stipulation is not. As Lord Cooper might have added, it is not clear why the permanence envisaged by the architects of the treaty should now eclipse the permanence of the conditions imposed by Scotland!
But surely the precondition is purely religious and is now irrelevant?
If the clear intention of the architects of the Treaty was to create a permanent and unalterable union, the equally clear intent of the Scottish signatories was to establish a conditional basis for the union. Understanding the context for that conditional basis is essential.
The Claim of Right Act is the sole, named statute in the “Act for securing of the Protestant religion and presbyterian church government”, ratified as a condition of treaty and union. It is included in the articles, (though it remains a separate condition), in the religious provisions. Those deeply unpleasant, sectarian provisions, like those in the English Bill of Rights, have ceased to apply and have now become almost irrelevant in a modern, secular society. But because part of an act has fallen ‘by implication’ does not negate the force of the remainder.
And the remainder is not religious in character. The remainder is constitutional in character. Its constitutional provisions were successfully applied against William II and III in 1699, just ten years after the Claim of Right was passed, when he failed to curb the right to protest because of it. It had proved its character and value to Scotland and in 1703 it became high treason to so much as criticise the Act. That constitutional character was both intended to remain and understood to do so by both parties to the treaty:
“The Laws of Government, (in Scotland), continue as the Government continues establish’d in the Claim of Right, I mean as to the Limitations of Government and Obedience.” (Daniel Defoe)
But the nations of Scotland and England became a single and united kingdom requiring only one set of constitutional principles?
A genuinely united kingdom would certainly require a single constitution. It is not possible to create one, homogenous nation out of two nations with disparate constitutions. But there is no reason whatsoever why the need for a single constitution mandated that Scotland would simply inherit England’s. This has simply ‘happened’ without negotiation and in contradiction of the terms set out in the international agreement known as the Treaty of Union. But a process of assumption and establishment by practice, (and even the need for a self-consistent constitution), does not alter the standing and legality of the Scottish terms of the Union. An irresolvable conflict between the English and Scottish constitutions which makes the Union impractical offers three lawful solutions; the Union is dissolved; England adapts its own constitution to that of Scotland since England did not, after all, stipulate the continuation of its own constitution within the terms of the treaty or Scotland is governed under its own constitution and the Union becomes something more like a federation than a single, continuous state. The latter is what Scotland expected.
The authority of the people of Scotland was expected to remain in place while the territorial integrity of Scotland never passed into the control of the political and economic union that was formed.
The Crown in Scotland is representative of the Community of Realm, the people of Scotland. Ownership of the land of Scotland was, (and remains), vested in the Crown, the people of Scotland, not in the monarch, just as political and legal sovereignty was, (and remains), vested in the people. The creation of a new ‘kingdom’, a new state and a new parliament could not, therefore, transfer the territorial ownership of Scotland, via the monarch, to this new kingdom.
The legal limits of government and monarchy and the constitutional definition of the Scottish Crown mean that, despite the creation of a single political and economic ‘kingdom’, it was not legally possible for either the Scottish Parliament or the reigning monarch, Anne, to transfer judicial, political or territorial sovereignty from the kingdom of Scotland to the Crown and Parliament of the new United Kingdom.
“Conventional feudal theory and practice was based (in England and elsewhere) on the premise that a kingdom was first and foremost a feudal entity and, in that sense, the property of its king or queen. In Scotland’s feudal system, this situation was radically tempered by the Crown’s status as representative of the Community of the Realm which vested that ‘ownership’ in the sovereignty of the people.”
Although this distinction has been treated by the British establishment as an irritating irrelevance, it is key to the true, constitutional character of the political and economic merger which self-identifies as a ‘United Kingdom’.
The institution of the crown in Scotland represents the people of the nation rather than an individual. A monarch in Scotland ruled, not by ‘divine right’, force of arms, or feudal entitlement, but by consent of the people, the source of power and highest authority of the nation. Such authority is what we term ‘sovereignty’. It is from the constitutional character of the Scottish crown that the constitutional sovereignty of the Scottish people derives. They are the sovereign power, represented by the institution of the crown. This is why Scotland had no king or queen of the ‘land’, only of Scots. And this is why Queen Anne had no power, as the Scottish Parliament had no power, to merge the territories of England and Scotland into a single, territorial nation.
Neither Queen nor parliament could transfer to the foundations of the new kingdom a sovereignty which neither possessed.
These rights and distinctions remain in international law, whatever the ruling of the Supreme Court of the United Kingdom. Indeed, the territorial rights of a sovereign, if stateless, nation are well described under international law as is the effect of any domestic ruling:
“The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law”
The character of the Union does not fall to the UK government nor its courts to define. It relies on the conditions of the treaty, as understood by the signatories, and on the character of the constitutional protections and provisions which are either guaranteed by that treaty or excluded from the reach of the political and economic union by virtue of the limits of the authority of either monarch or parliament. Precedent for this approach to treaty and constitutional law may be found in the rulings and decisions of the Judicial Committee of the Privy Council, which regularly applies the internationally accepted benchmarks of context, intent and good faith to even more obscure and ancient constitutional issues than those I have described here. It simply does not extend that courtesy to Scotland.
“The Judicial Committee of the Privy Council originated as the highest court of civil and criminal appeal for the British Empire. It now fulfils the same purpose for many Commonwealth countries, as well as the United Kingdom’s overseas territories, crown dependencies, and military sovereign base areas. Over the years it has been asked for final rulings and interpretations of many different kinds of law, from Roman Dutch law in appeals from South Africa, to pre-revolutionary French law from Quebec, and Muslim, Buddhist and Hindu law from India.” (See JCPC website)
The self-referencing, (and entirely self-serving), ‘exceptionalism’ of the British legal and political establishment, therefore, does not constitute the benchmark for either justice or legality.
A New Approach
It is possible for nongovernmental organisations, in particular a Liberation Movement to gain standing with the General Assembly of the United Nations. With such standing, a UN committee may refer the petition of the LM to the ICJ for a ruling. (It is also possible for a supportive nation or nations to refer the question on our behalf.)
The first step is simply to register the Liberation Movement with the United Nations. The second is to gain support and backing, ‘sponsorship’ from represented nations. The third is to present the case for recognition through the appropriate committee and with the backing of supportive nations. Procedures and regulations are exacting and, for example, applying through the wrong committee or with the wrong grounds can halt or even terminate the entire process. Along with the correct steps taken in the correct order with the correct petition, it will be essential to have expert advice and the services of an international legal expert in treaty, territorial and human rights, (which include the rights of nations to self-determination).
The question we seek an answer to, either through the appropriate Committee of the UN or through the agency of a supportive nation, is a simple one. Is Scotland in the voluntary union claimed by the UK government or is it a de facto colony?
If the first, does the UK government agree that the terms and conditions of that Union are not subject to the determination of a heavily English dominated parliament under an English domestic Bill, (the Act of Union), but to the international standards governing international treaties . In this case the constitutional and territorial rights of Scotland within the Union must be restored. These include the sovereign rights of the people, which ‘trump’ those of Westminster in legal standing and provide the authority to exercise precisely that degree of self-determination provided in modern, international law.
They also provide for the re-establishment of nonparliamentary bodies, including civic assemblies, which formerly protected and promoted the rights of the Scottish people.
In this way, the means by which to exercise the self-determination currently denied by Westminster under snake law, (yes, I know, but indulge me), can be restored to the people of Scotland with a guarantee that any democratic vote, with or without Westminster or Supreme Court ‘permission’, will have the international recognition that we require. It is, if you like, the route to the route to independence.
It will also expose the territorial abuses and, (under international law), economic plunder perpetrated under the pretence that ‘right of the Crown’ means the same thing in Scotland as in England i.e. the right of the ‘crown in state’ to manage the assets of the territory. This is clearly false and equally clearly understood by the British government which has carefully assigned itself an ‘administrative’ position as insurance against any such challenge, however unlikely.
Management of our own assets, even with a tax liability due to the UK Treasury, (though potentially offset by the action of a trustee which has impoverished the owners with their own assets), is a significant step towards full self-determination and certainly guaranteed under international law. It includes not just oil and gas, but renewable energy and water. It allows Scotland to separate its national grid from that of England and to provide its people with cheap renewable energy before exporting to England or anywhere else. It allows Scotland to set its own license terms and profit share prior to tax and to relieve Sunak of the new licenses he is flogging and develop a responsible energy policy that allows responsible, staged exploration and recovery of new forms of energy from existing fields. In short, it is a game changer.
If none of the actual terms of the Treaty, (and none of the modern, legal provisions for self-determination of nations), apply, then Scotland is a de facto colony. It is further anticipated that the Scottish National Congress, representing the Liberation Movement, will graciously allow the UK government to answer that question.
All this has depended on just one thing. Knowledge of the constitutional position and its implications, knowledge which has been hidden, distorted or subverted by the self-interested and self-authorising legalism of the British establishment for over a century. And knowledge of and access to an international forum where the absurdities of the this establishment can be exposed by the spotlight of international, legal scrutiny.
Without doubt, this approach will employ the application to Scotland’s case of “the notion that the domestic concept of parliamentary sovereignty somehow bears upon the position of the UK as a State under international law” as the political kryptonite it really is. It is long since time that the people of Scotland and the establishment that has so relied on it, watched it as it “disintegrates upon contact with legal reality.”
I suspect that as we have no intention of demanding support for UDI or even a referendum but only the answer to a clear question and the concomitant regularisation of the ‘voluntary’ union, there are many former colonies who will enjoy delivering the rather painful slap on the wrist that the UK government so richly and is so widely now seen to deserve. We have a great deal of work to do but we can be sure of one thing at least. We will not be following the coils of snake-law round and round in the same circles it has described for us until now.
 DeFoe, Daniel ‘A History of the Union of Great Britain’, Appendix p. 33 (Andrew Anderson Printer to HM Queen Anne, Edinburgh 1709)
 R Callander ‘How Scotland is Owned’ pp. 45 – 46 (Canongate, 1998)
 A constitutional principle first recorded in the Declaration of the Clergy in 1310 and, more famously, the Declaration of Arbroath in 1320.
 UN Int. Law Commission 2001 vol II Part 2 Responsibility of States for Internationally Wrongful Acts Part one
The Internationally Wrongful Act of a State, Chapter 1, General principles, Article 3