Scotland is sovereign and can legally declare independence whenever it wants

Of all the nat memes this probably remains one of the most obviously wrong statements once you put just a little bit of thought into it.

Firstly we should start with the Acts of Union. I won’t go through all of the history of the position but what is undoubtedly legally the case is that the Scottish state was merged into either the English state or into a newly created British state (on the latter point there is some legal dispute).

It was this state (I’ll call it the British state for the sake of clarity going forward) that obtained supreme legal authority through the Crown in Parliament.

Much is made by the nats of the Declaration of Arbroath (which like the gospels got its title a long time after the event). The meme goes that the sovereignty of the people of Scotland and their ability to depose the monarch whenever they want is embedded in the Declaration. The trouble is “The Declaration” is not a constitutional document, it is a letter to the Pope asking for him to recognise the Bruce as King. So far from actually proclaiming the sovereignty of the people it asserted the right of God’s apparent representative on Earth to legitimise the King.

That’s also not where the troubles end for the nats. A quick glance at historical Scottish legislation which actually is still on the statute book will show you that Scotland passed three Sovereignty Acts.

Sovereignty Act 1584

Sovereignty Act 1606

Sovereignty Act 1633

All of which assert the sovereignty of the Scottish Crown over the state.

Then of course there is the Claim of Right 1689 Act passed by the Convention of Scottish Estates. This is also used by some nats to imply that the sovereignty of the Scottish People applies.

But the trouble is if you actually read it, it doesn’t, indeed it doesn’t mention sovereignty once nor does it assert the rule of the people. The Claim was a catch up exercise by the Scots following the Bill or Rights in the English Parliament and the Glorious Revolution. It tidied up the fact that James VII did not nor could not have abdicated the Scottish throne.

In fact what the Claim did, in line with the events in England, was to strengthen the hand of Parliament against the Monarch.

And so we end up in 1707 and the Treaty of Union that became the Acts of Union, one in Scotland and another in England.

Whilst much is made of the legal status of the Treaty it has no legal significance and does not “sound” in international law, largely because at least one of the signatories no longer exists. For example a Treaty signed with the German Democratic Republic has no legal standing in international law because the entity which signed the treaty is no more.

The Treaty was simply the mechanism for the coordination of the Acts of Union and it was the Scottish Act of Union passed by the Scottish Parliament that ended the authority of the Edinburgh and passed it to Westminster.  The Scottish Parliament was dissolved by proclamation on 28 April 1707.

This left the Crown in Parliament as the supreme unitary authority in the United Kingdom and with respect to the Union there it has remained. No authority was assumed, the authority flows from the Sovereignty Acts, the Claim of Right and the Acts of Union.

Indeed so strong is this authority that the UK regularly demonstrates it. An old but significant example was the Statute Law Revision Act 1964 which amended the Union with England Act 1707 (which adjoined the Act of Union and was designed to protect the Church of Scotland). This Act guaranteed the religious persuasions (Church of Scotland) of the leaders of the great Scottish Universities and this restriction was abolished in 1964. However the Union with England Act also contained the provision:

“That all Laws and Statutes in this Kingdom so far as they are contrary to or inconsistent with the terms of these Articles as abovementioned shall from and after the Union cease and become void”

So in other words the amendment to the Union with England Act 1707 in 1964 could have dissolved the Union. But it didn’t simply because there is only one authority that can do this and that is Parliament at Westminster.

More recently the authority of Westminster was demonstrated with the Scotland Act 1988, the list of reservations to Westminster includes the Union between Scotland and England. This clearly shows the inability of the devolved Scottish Parliament to have any say over the matter.

The nat meme seems to run that if the Scottish people vote in a referendum for independence then independence legally happens then and there. This vote could of course be in a Westminster sanctioned referendum or even an indicative ballot by the Scottish Government.

One need only think about that latter proposition to see the oxymoron of a legally binding indicative ballot!

So let's deal with the first proposition, the legal and constitutional position following a Yes vote in a legally authorised referendum.

The day after the Yes vote the UK is still legally and constitutionally intact, nothing has changed. Why? Because only Westminster can create an legal independent Scotland through an Act of Parliament. Let me say that again it would only be through the passing of a Scottish Free State Act through Westminster that Scotland would legally leave the UK.

Morally and politically the position may be different but legally the case is very sound.

A standard response to any nat who gets to this stage would be to argue that international law would force Westminster to grant independence. But international law does not apply to what at that stage would be the internal affairs of the British State.

Of course there is an option open to Scotland if it wants to declare independence: a Unilateral Declaration of Independence (UDI). This is a perfectly valid method of achieving independence but with great costs, up to and probably including civil war. UDI is an illegal method of achieving independence, it would also ensure no possibility of a currency union, exit from the EU and the UN, massive capital flight from Scotland, basically a scenario I call game over.

So a legal separation from the UK can only be achieved by an Act of Parliament, not by the sole will of the Scottish people.

Does this matter?

Yes very much so. It means that Westminster has the whip hand when it comes to independence negotiations as the Irish delegation found out to their great cost.