Section 30 approach to achieving independence is fraught with risk

We, the Scottish Sovereignty Research Group (SSRG hereafter), are writing to share our informed collective view on how Scotland could become independent within a short period of time, join the European Free Trade Association, rejoin the single market, and subsequently build the constitution and institutions of the new Scottish state.

The SSRG has observed with increasing alarm the stated strategy of the Scottish Government, to hold a referendum within the current parliamentary term under a "Section 30" order from the UK Government. For the following reasons it is our view that this approach to achieving independence is fraught with risk, could result in independence not being achieved in our lifetimes, and therefore as a nation we must pursue other peaceful and democratic means to rapidly achieve independence.

READ MORE: What have COP26 leaders said about Scottish independence?

A. The Conservative UK Government has reiterated numerous times that it has no intention of granting a Section 30 order to hold a referendum.

B. Holding a referendum outside of a Section 30 order would be subject to legal challenge, likely boycotted by the Unionist parties, and not recognised by the UK state.

C. Even if a Section 30 order were granted, holding a referendum under the auspices of the UK Electoral Commission would be highly problematic for the following reasons.

1. The referendum would be held using the franchise of local elections, which would allow for part-time residents and those with vacation homes to vote in what should be limited to Scots and those who permanently make Scotland their home. Many countries with a written constitution limit the franchise on constitutional matters to its citizens and permanent residents.

2. It would also allow the UK Government undue influence in the timing, framing, and execution of the referendum. Given the UK’s stated opposition to Scottish independence, it is inevitable that this influence would be calculated to damage the prospects for a successful referendum. 

READ MORE: Does Nicola Sturgeon's timetable for indyref2 stand up to scrutiny?

It is also our view that the situation could not be more urgent for Scotland to become independent, achieve international recognition, rejoin the EU single market, and effectively recover physically and economically from the Covid pandemic. The recent UK Supreme Court ruling over the implementation of the United Nations Convention on the Rights of the Child into Scots law as outwith the competence of the Scottish Parliament only underscores this urgency. This is why we at the SSRG have developed the following legal, democratic, and peaceful means to rapidly achieve independence and international recognition.
 
I. Pro-independence Scottish MP’s withdraw from the 1707 Treaty of Union  

When the Treaty of Union was negotiated and ratified in 1707, it was to be a Union of equals between Scotland and England. Scotland retained its own legal and educational system, and under the terms of the treaty the UK Parliament could not interfere in Scots Law. Scotland did not renounce its sovereignty, which had been legally established in the Declaration of Arbroath in 1320, the Claim of Right in 1689, and reaffirmed numerous times including by the UK Parliament as recently as July 4, 2018. 

It is the informed view of the SSRG that there is nothing in the UK unwritten constitution that prevents a majority of Scottish MPs, representing the Scottish party to the Treaty of Union, to collectively vote to withdraw from it. This would mean that if 30 of the 59 Scottish MPs voted to withdraw, the Treaty of Union would be annulled. While it may be argued that only the full UK Parliament may vote on such matters, English Votes for English Laws (EVEL) set a precedent under which Westminster Parliamentary procedure can allow MPs from the UK nations to vote on issues uniquely concerning that nation. Scottish MPs can do likewise in voting to withdraw from the 1707 Treaty of Union.

READ MORE: Nicola Sturgeon cannot assume today’s young folk are tomorrow’s Yes voters

Previously, this was essentially the view held by Margaret Thatcher and politicians of all political stripes, that if in a General Election Scotland elected a majority of pro-independence MPs to the Westminster Parliament, this would constitute a mandate to dissolve the Union. This has now occurred in three General Elections: 2015, 2017, and 2019. Based on this view, this incontestably represents three mandates in a row to withdraw from the Treaty of Union. Nothing in the unwritten UK constitution prevents this method to achieve independence from being employed.

II. The Scottish Parliament Reaffirms the Sovereignty of the Scottish People and declares that it is the only Parliament which Represents their Sovereign Will

It has been legally established and is beyond doubt that Scotland is a sovereign nation and that the people of Scotland are a sovereign people, and that they and they alone can determine the form of governance they so choose.

The current Scottish Parliament was elected by the Scottish people in a general election on May 6 2021, and comprises a majority of MSPs whose parties declared their support for Scottish independence in their manifestos for that general election. 

This majority has empowered the Scottish Parliament to seek independence, and the Scottish Government has indicated that it will pursue the referendum route to achieve that end, whether the proposed referendum is held with or without a Section 30 request to the UK Government. However, by the power vested in it by the sovereign Scottish people the Scottish Government can choose to use whatever democratic means it deems suitable to achieve independence.  

The Scottish Parliament should declare that it is the only parliament which represents the sovereign will of the Scottish people. To this end, it should pass a motion to declare that Scotland as a sovereign nation is withdrawing with immediate effect from the Treaty of Union with England, citing the myriad of ways in which the UK (English) Government has broken the terms of the Treaty over the years, and continues to do so in respect of Brexit and the Internal Market Bill among others.

It could be argued that the independence majority in the Scottish Parliament was not elected with a mandate to withdraw from the Treaty of Union, and therefore cannot pursue this route. However, elected governments are empowered, and indeed duty bound to take whatever actions they see fit to best serve the interests of their electorate and the nation they represent. Achieving independence in a post-Brexit UK is clearly in Scotland’s interest. 

The Scottish Government is on record with frequent declarations that independence is the only real solution to the serious problems facing the country. They should be aware that as these problems increase and UK constitutional obstacles continue to impede progress,  they already hold the power to implement the solution they continually advocate.

III. Withdrawing from the Treaty of Union and assertion of Scottish Democratic Parliamentary Supremacy to be followed by a Two-Year Transition Period to Full Independence

During the two-year transition period between the assertion of sovereignty and full independence, commissions will be formed by a national assembly to perform key tasks, including but not limited to the following:

1. National Assembly
The Scottish Government should establish a National Assembly comprising all the talents from the MSPs and MPs (MPs recalled from the House of Commons) and representatives of all facets of Scottish civic society, research groups, business, industry and the law to manage and implement the changes required during transition.

2. International recognition 
Widespread international recognition is essential to Scotland being recognised as a sovereign independent nation. Dissolution of the Union, the reassertion of Scottish sovereignty and affirmation of the supreme governance of the Scottish Parliament will confer the competences necessary to negotiate and ratify international treaties and the powers to abide by them. The Scottish Government shall immediately seek recognition from other nations and international organisations, clearly explaining and emphasising the peaceful and democratic nature of the means whereby full independence was achieved.

International law is silent on how the independence of a nation can be legitimately achieved, leading to international recognition. The 2010 Kosovo case is instructive regarding how this method of Scotland achieving independence would be perceived by the international community and organisations.  

The following are excerpts from the written statement by the United Kingdom over the request for an advisory opinion of the International Court of Justice regarding the question: “Is the unilateral declaration of independence by the provisional institutions of self-government of Kosovo in accordance with international law?” By a vote of 10 to four, the ICJ advisory opinion of July 22 2010 on Kosovo held that "the adoption of the declaration of independence of February 17 2008 did not violate general international law because international law contains no prohibition on declarations of independence." 

5.5 Consistent with this general approach, international law has not treated the legality of the act of secession under the internal law of the predecessor State as determining the effect of that act on the international plane. In most cases of secession, of course, the predecessor State's law will not have been complied with: that is true almost as a matter of definition.

5.6 Nor is compliance with the law of the predecessor State a condition for the declaration of independence to be recognised by third States, if other conditions for recognition are fulfilled. The conditions do not include compliance with the internal legal requirements of the predecessor State. Otherwise the international legality of a secession would be predetermined by the very system of internal law called in question by the circumstances in which the secession is occurring.

5.7 For the same reason, the constitutional authority of the seceding entity to proclaim independence within the predecessor State is not determinative as a matter of international law. In most if not all cases, provincial or regional authorities will lack the constitutional authority to secede. The act of secession is not thereby excluded. Moreover, representative institutions may legitimately act, and seek to reflect the views of their constituents, beyond the scope of already conferred power.

Therefore, according to the UK’s own submission in the Kosovo case, UK law cannot determine the legality of Scottish secession under international law. Whether the UK Government grants a Section 30 order or not is irrelevant. It is up to individual states and the wider international community to determine whether this means of achieving independence is a peaceful, democratic means of self-determination, and whether or not to recognise Scotland as an independent state. This submission also holds that Scotland can act outside the Scotland Act to achieve self-determination and independence.

Because self-determination is applicable to all peoples, it would be illegal under international law for the United Kingdom Government to prevent this democratic expression of self-determination. It could not legally prevent other states from recognising Scotland and establishing bilateral and multilateral relations. Nor will it be able to prevent Scotland from building the state in the form it chooses. Furthermore, as a successor state, Scotland will be under no legal obligation to assume any of the UK debt. 

3. Membership of EFTA and re-entering the European Economic Area (EEA)

Upon dissolving the Union and reaffirming the sovereignty of the Scottish people, the government should immediately apply to join EFTA (European Free Trade Association), which currently comprises Norway, Iceland, Switzerland, and Liechtenstein. EFTA membership will not prevent Scotland from joining the European Union at a later date, if that is the informed will of the Scottish people. 

Recent expert advice from EFTA has informed the SSRG that Scotland would be rapidly accepted into EFTA, provided the Scottish Government has the competences to negotiate and ratify international treaties and the powers to abide by them. Scottish MPs withdrawing from the 1707 Treaty of Union, and the Scottish Parliament reaffirming the sovereignty of the Scottish people and its democratic legislative supremacy, would fulfill these criteria.  

The support of the EFTA members of the European Economic Area (Norway, Iceland, and Lichtenstein) will enable Scotland to rejoin the EEA. This will allow Scottish producers to export into the EU Single Market without the need for customs tax or tariffs, in effect free movement of goods and services, thus beginning to reverse the damage inflicted on Scotland’s economy by Brexit.

The Scottish Government should agree protocols with the EU covering Scottish agriculture and fisheries. This would give Scottish producers access to the EU single market. Given that Andorra, Turkey, and Monaco are members of the customs union but members of neither the EU nor EFTA, Scotland could probably negotiate membership as well. 

EFTA and the UK signed a free trade deal in June 2021 which means that when Scotland joins EFTA it will be a party to that trade deal and effectively be in a free trade arrangement with England.

4. Freedom of Movement

Membership of the EEA will reinstate reciprocal rights of EEA citizens and Scottish citizens to freedom of movement and other rights. Scottish companies would be able to hire workers from EU and EFTA countries to fill the vacancies in key sectors of the economy brought about by Brexit.

5. Erasmus and other Common EU Schemes. 

Membership of the EEA will enable full reinstatement of the full benefits of the Erasmus Scheme for Scottish students to study in the EU and EU students to study in Scotland. Scotland would be free to participate in the other common EU programmes in research and other fields of their choosing. 

6. EU/EEA Scotland Trade Links

Scottish trade with the EEA requires direct transport links with the EU single market. The Scottish Government should support the establishment of direct sea ferry links between Scottish ports and EU and EFTA markets. (Ireland has successfully established direct ferry routes to the EU following the UK Brexit.)

7. State Pensions

The Scottish Government will introduce measures to increase the Scottish state pension to the level of the EU average pension within a reasonable period of time. (The UK currently has the lowest state pension in Europe.)

8. Free Movement between Scotland and England for People and Trade

The Scottish Government should support free movement of people across the border between Scotland and England during the transition period and thereafter. As a result of the June 2021 free trade deal between EFTA and the UK, there will be a free trade arrangement between Scotland and England from almost the very start of the transition period, and this would naturally continue following the transition period.

9. Building the Infrastructure of Government

The newly independent Scottish Government should build all necessary Scottish state infrastructures, including defence, taxation and welfare, international relations, currency and competent economic management. During the two-year transition process, shadow ministries should be created for reserved responsibilities to work alongside the currently devolved ministries to design the institutions, ready and able to properly function on day one of full independence. 

10. The Scottish Constitution

The Scottish Constitutional Convention will create a written constitution based on current international best practice and work already carried out. The new constitution will be subject to a confirmatory referendum, then the Scottish Government shall adopt the Scottish Constitution ultimately developed and ratified. Elected officials should play a very limited role in the process. 

11. A Confirmatory Referendum

At the end of the two-year transition period, as a sovereign and fully independent state the Scottish Government would hold a confirmatory referendum on whether the Scottish people want to remain fully independent and adopt the constitution developed, or enter into a new treaty with England. Particular attention should be devoted to the franchise, specifying what criteria would define a Scottish national in line with international best practice. The UN "secondary criteria" as used in New Caledonia could be a model to emulate. Voters in this confirmatory referendum will have full knowledge of what they are voting for unlike the situation in the 2016 Brexit referendum.

We are publishing this letter on our website (scottishsovereigntyresearchgroup.org) and in the press with a view to generating wider political debate across Scotland and the independence movement as we seek to help establish the means to achieving independence in the shortest practicable, peaceful and democratic way. We in the SSRG have worked with members of the Common Weal, the Constitutional Commission, Constitution for Scotland and others, and will enthusiastically continue to do so in a spirit of goodwill and cooperation. 

Above all, it is our sincere hope that the Scottish MPs and MSPs avail themselves of this opportunity to become recognised as a fully independent state within the international community. Otherwise Scotland will effectively continue to be a Westminster vassal state for the foreseeable future. Scotland has nothing to lose by pursuing this strategy, and everything to gain.

Yours for Scotland
SSRG Team