HAPPY indyref anniversary. This day six years ago, Jim Sillars famously said that absolute sovereign power lay in the hands of the Scottish people and that we had to decide whether to keep it, or to give it away to where our minority status would make us permanently powerless and vulnerable.

Unfortunately, as events have shown, not holding on to our sovereignty then was a dangerous decision. The promise of the consolation prize of the most powerful devolved parliament in the world did not materialise and now we see the powers our parliament was given in 1998 threatened by the Internal Market Bill.

During the indyref campaign Better Together campaigners scoffed at the idea that the UK might leave the European Union, contemplate leaving the European Convention on Human Rights and end up with Boris Johnson as Prime Minister. Yet all these things have come to pass and six years later the UK has become a pariah state denounced from Brussels to Washington for its attack on the international legal order and cavalier attitude towards the Good Friday Agreement.

Yet it is not all bad news. By demonstrating so clearly our weakness to affect UK-wide decisions and their contempt for devolution, the English Tories have pushed support for independence from strength to strength. Support for independence is now reported to be around the 55% mark in a series of opinion polls.

Opinion in the EU and internationally is far more well disposed towards Scotland’s aspirations for self-determination in the light of Brexit and as the enormity of what this Government is proposing to do in the Internal Market Bill causes shock waves across the international community.

Scottish independence now seems inevitable, particularly when one sees the breakdown of voting intentions and the overwhelming support for it from younger people. The only real question is how and when will the dream of independence be realised?

It would, of course, be the best and easiest course of action if we could have a repeat of the Edinburgh Agreement and the independence referendum of 2014, but many are afraid that Johnson will never agree to this given the likelihood that this time we would win. There is also a legitimate concern about whether he would respect the terms of any agreement, never mind the result of the referendum. Anyone who watched his slippery performance when Angus Brendan McNeil MP questioned him about these matters at the liaison committee on Wednesday would be justifiably nervous.

It is hard to negotiate with any confidence with someone who has a track record of breaking agreements. And it is concerning that the future of our nation should depend upon Boris Johnson doing the right thing.

It is important that we do not, as Sillars warned, remain permanently powerless and vulnerable.

This means we should not peril all on persuading Johnson to grant a Section 30 Order. Other options should be explored if not in public then behind the scenes and, although I have not been consulted on these matters, I would be very surprised if this was not happening under the auspices of the leadership of the SNP and the Scottish Government.

The First Minister has promised that a draft independence bill will be published ahead of the Holyrood elections next year, setting out timing, terms and question. It is to be hoped that it might render the question of whether the Scottish Parliament has the power to hold a referendum, currently being litigated in the Keatings case, a good deal less hypothetical, thus aiding a definitive decision from the court as to the extent of Holyrood’s powers.

Whilst litigation is not a short cut to independence, which can only be delivered as a result of a democratic vote, it could thus provide a legitimate basis for a referendum in the absence of a Section 30 Order. It may also be required to defend us from attacks on Scottish institutions, such as the attack on the independence of our legal system threatened by the UK Government’s plans to lessen opportunities for judicial review of their activities.

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IN the prorogation case last year, the United Kingdom Supreme Court made it clear that in a constitutional democracy bound by the rule of law, all power is limited and it’s the job of the courts to explain what those limits are and to decide when those powers are being abused. So Johnson does not have absolute power.

In my speech on the Internal Market Bill this week, I emphasised that the doctrine of parliamentary sovereignty is a creature of English law and that treaties are governed by international law, not domestic law. I also said that as well as breaching the Withdrawal Agreement, in so far as Clause 45 seeks to oust the supervisory jurisdiction of the Court of Session in respect of any regulations made under Clauses 42 and 43, the Internal Market Bill also breaches Article 19 of the Treaty of Union. This excited quite a bit of interest.

What I was getting at is that there is a respectable legal argument that there are some articles of the Treaty of Union that are so fundamental the UK Parliament cannot repeal or alter them; for example, the protection of Scotland’s independent legal system in Article 19. Even Dicey, the great exponent of the English doctrine of parliamentary sovereignty, admitted that it is not a doctrine enshrined in the Treaty or the Acts of Union. And in a Scottish case argued in the 1950s, MacCormick v Lord Advocate, there was some interesting discussion of the possibility that the UK Parliament is bound by certain unalterable laws in the Treaty of Union and what the consequences might be of it breaking those laws. Unfortunately, the case did not provide an answer to these questions and there is no definitive legal decision on the matter.

It looks like the UK Government are backtracking on their plans to get rid of judicial review, at least in the current bill, but I am sure that my colleagues in the Scottish Government will have asked their legal advisers to consider the status of the Treaty of Union and whether a ruling from a court in appropriate circumstances might be of assistance in Scotland’s fight for self-determination.

It is important to remember that the Union of England and Scotland predates the very modern creature that is devolution. That the Union is not indissoluble is widely accepted and is evidenced by the dissolution of the 1800 Union between Great Britain and Ireland by a new British Irish Treaty, despite the fact that both unions were described in their founding documents as being “forever after”.

Therefore the question of how the Union between Scotland and England is dissolved and how Scotland expresses its intention to leave that Union should not be solely determined by what powers were or were not devolved to the Scottish Parliament when it was reconvened by Winnie Ewing on May 12, 1999, having been adjourned on March 25, 1707. There are wider constitutional questions at stake.