Path to independence need not be held up by strategy of seeking a Section 30 order

DEAR leaders of pro-independence parties in Holyrood and Westminster,

We at the SSRG wish to express our deep concern over the stated strategy for achieving independence by seeking a Section 30 order from the Westminster government to hold another referendum under the auspices of the UK electoral commission. We hold that it is not only highly problematic, but may also be impossible to successfully achieve.

However, it is also our informed view that you, as pro-independence party leaders in the Holyrood and Westminster Parliaments, already hold the power to achieve independence for Scotland and join the European Free Trade Agreement (EFTA) within weeks if the following course of action is taken.

I. Pro-independence Scottish MPs withdraw from the 1707 Treaty of Union

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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 and exercising the Claim of Right reaffirmed by the Westminster Parliament on July 4, 2018, withdrawing from it. 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.

This means of becoming independent is perfectly valid and recognised under international law. The December 10, 2018 European Court of Justice ruling over whether the UK could unilaterally revoke the letter of notification to leave the EU held that they were perfectly entitled to do so. As a matter of law, the decision to withdraw from or remain within a treaty is a decision for the signatory party to the treaty, in this case a majority of Scottish MPs.

II. Reaffirm the Sovereignty of the Scottish People and declare that the Scottish Parliament is the only Parliament which Represents their Sovereign Will

THE Scottish Parliament elected on May 6 2021 comprises a majority of MSPs whose parties declared their support for Scottish independence in their manifestos. Given the problematic nature of the Section 30 route, the power vested in it by the sovereign Scottish people has also empowered the Scottish Parliament to seek independence using whatever democratic means it deems necessary.

The Scottish Parliament should therefore pass a resolution establishing that it is the only parliament which represents the sovereign will of the Scottish people, thus withdrawing from the Treaty of Uni on with immediate effect. This could easily be legally justified by citing the myriad of ways in which the UK 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.

It could be argued that the independence majority in the Scottish Parliament was not elected with a mandate to pursue this course of action. However, democratically 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, especially under exigent circumstances as Brexit clearly is. In addition, as the UK’s own submission to the 2010 International Court of Justice advisory opinion over the legality of Kosovo’s unilateral declaration of independence holds, international law allows devolved parliaments to act outwith the laws of the predecessor state to achieve independence, and still be internationally recognised.

III. Accession of Scotland to EFTA and the EEA

IN February 2021, the SSRG approached the European Free Trade Association (EFTA) and asked them whether if the May 2021 Holyrood elections were used as a plebiscite for independence, could Scotland join EFTA? We received a response, which would not have been given if there were not agreement among the member states.

Yes, Scotland could join provided that the Scottish Parliament had the competences to sign international treaties, and the powers to abide by them. They are agnostic as to how these powers would be acquired. Once they were, the Scottish Government would simply send a letter to the EFTA Council requesting membership, which would be readily accepted. EFTA would then ask the European Economic Area (EEA) Council to allow Scotland to be readmitted to the single market, for which they foresaw no impediment.

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This would allow Scotland to seek recognition as a sovereign state under international law, which it will achieve if the reasons are explained carefully to the international community. The SSRG has it on good authority that many nations and international institutions would rapidly recognise Scotland as an independent state. And while they are sympathetic to the plight of Scotland under the submission of the UK and fully understand the reasons for independence, they continually stress that only Scottish elected officials can do this.

We understand that this route will require a democratic endorsement through a vote of the Scottish people. However, rather than a Section 30 referendum, this can be in the form of a confirmatory referendum after a two-year period, once the independent Scottish constitution and state is well under construction. The vote could be over whether to continue building the Scottish state, or to negotiate a new ToU with the UK.

The SSRG therefore respectfully yet confidently submits to you, as leaders of pro-independence parties in Holyrood and Westminster, that collectively you hold the electoral, internationally legal, and moral authority to withdraw Scotland from the 1707 Treaty of Union and affirm the Scottish Parliament as the sole representative of the sovereignty of the Scottish people.

We sincerely hope you will avail yourselves of this opportunity that the SSRG has meticulously cultivated.

Dr Mark McNaught and the

SSRG Team