FOR many Yes campaigners the “judgment” of the UK Supreme Court has been a great disappointment. Well, it need not be that, because historically, I believe, we will look back on the “judgment” as having cleared the logjam on Scotland’s road to independence.

The truth is that we have been led along the wrong path on our road to independence for years, and this pronouncement by the highest authority of UK Unionism has shown us quite clearly that we have been on the wrong path and must find another and better route to our objective. Indeed, in addition to that it has, no doubt inadvertently, exposed the weakness of the Unionist position, which will be very helpful to our campaign if we take full advantage of this and change our strategy to take account of it.

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In their desperation to ensure that the Scottish Government had no possible “legal” way of securing independence the court justices completely ignored Scotland’s political and cultural history, they ignored the Treaty of Union, they ignored the Scottish legal definition of sovereignty, they ignored the result of the Scottish referendum on devolution and, indeed, they ignored everything about Scotland and substituted an image of Scotland, its people and its political existence having been created, out of a political vacuum, by the Westminster Parliament’s Scotland Act 1998. This Act they claim created the Scottish Parliament, and therefore the Westminster Parliament can dissolve it at any time.

That is of course a total nonsense. “Scotland” was not created by any act of the Westminster Parliament, it has a long and significant history, and its close political relationship with England has to be considered to be from the Treaty of Union passed by both the Scottish and English Parliaments in 1707.

Since the UK Supreme Court is afraid to address these issues, we must. We must deal with this issue by political factors in the real world and not by some “legal model” constructed in an English court using outdated English conceptions of sovereignty which would not be accepted in international law.

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Donald Dewer, the minister who steered the Scotland Act through Westminster, saw it as the result of long political struggle and he said so at the time. He also said that devolution was not a single event but was a process, and to quote him he said: “This is a moment anchored in our history.” When the Scottish Parliament was opened by Winnie Ewing MSP she claimed, to wild applause by the members, that the Scottish Parliament, suspended in 1707, had been reconvened. This claim was widely accepted by the Parliament and was not challenged either by Scottish Unionists or the Westminster Parliament at the time.

The Scottish Government should now put a bill through the Scottish Parliament confirming the claim that the Scottish Parliament in 1998 took over from and succeeded the Scottish Parliament of 1707. This should be followed directly by the Scottish Government taking over responsibility to interpret and maintain the Scottish side of the 1707 international treaty, known as the Treaty of Union. If they did this they would note that the section in the treaty which confirms that Scottish law would remain independent must be maintained, and that references to any court outwith Scotland, such as the House of Lords or the Supreme Court, would no longer be accepted since they were in breach of the Treaty.

This, of course, would not be acceptable to Westminster, any more than the recent Supreme Court judgment was acceptable in Scotland. However, if they did not like it they would have a legal remedy available – they could take it to the international court, because the treaty is an international agreement between two parliaments.

Taking this step would not by itself challenge the Treaty of Union, but it would place Scotland in a much stronger position in relation to this treaty even to the point of withdrawing from it if the sovereign Scottish people so decided. In such circumstances it would be a matter for the Scottish Government and the independent Scottish courts to ensure that the voice of the sovereign Scottish people could be heard.

Andy Anderson
Ardrossan