A guest post from regular contributor Ewan Kennedy who is a solicitor by profession and lives in Argyll. Further thoughts on Routes to Independence In preparing to write this piece I came across the following comment I posted on social media following the Supreme Court Brexit case in 2017, regarding the status of Holyrood: “TheContinue reading "FURTHER THOUGHTS ON INDEPENDENCE."


A guest post from regular contributor Ewan Kennedy who is a solicitor by profession and lives in Argyll.

Further thoughts on Routes to Independence

In preparing to write this piece I came across the following comment I posted on social media following the Supreme Court Brexit case in 2017, regarding the status of Holyrood:

“The irony is that the Supreme Court judges have in fact delivered a highly political judgement, probably without realising it. There was an opportunity here to declare that in the changed circumstances within the UK following the devolution settlement we had moved on and to consign the ghost of A V Dicey to the history books where he belongs. Had they done so and accepted that Scotland now had “the closest thing to federalism” (which we were promised by Gordon Brown and others if we voted no) what could Mrs May possibly have done? Send in troops to lock up the judges?”

That was written in a bit of a hurry, but on re-reading it I wouldn’t change anything. Dicey himself recognised that there could be an ultimate limit to absolute sovereignty, people power. Lord Cooper pointed this out in what he described as an “exceedingly cynical answer” from (Law of the Constitution, (9th ed.) p. 82):

“it would be rash of the Imperial Parliament to abolish the Scotch law courts, and assimilate the law of Scotland to that of England. But no one can feel sure at what point Scottish resistance to such a change would become serious.” 

Changing the narrative a little, let’s imagine that the UK Supreme Court had taken a different route in 2017 and had come up with something along the lines of:

“Dicey, of course, the great Victorian, belongs to the age of Imperialism, when women had no votes and neither did many men, before the two World Wars and nuclear bombs. His theory is the only thing disabling our Parliament from bringing our wonderful country into the modern age; nobody ever voted for it; were he around today he’d surely agree that it’s time to move on!”

Back to the real world with a bump. Even if, as seems most unlikely, the court rules that the Scottish Government does in law have the power to hold an independence referendum, won’t Westminster just step in to change the rules retrospectively? Would there be, in Dicey’s words, a sufficient level of “Scottish resistance” to stop them? There would be a backlash, but perhaps directed at the SNP, on the basis that they should have known that this would happen.

In the absence of a revolution or something coming out that’s been hiding in Mike Russell’s eleven point plan I’ve taken a look at what could be one route to achieving independence without Westminster’s consent in a manner that might ensure a reasonable level of recognition. Don’t forget, there’s no point to the exercise if your new country isn’t accepted into the family of nations, or at least a good number of them. That route is through the United Nations as the body in control of International Law.

The UN is pretty open about its procedures and those of its associated International Court of Justice (the “World Court”), so what follows is simply what I’ve found online. As I’ve said before, I claim no special expertise and am always happy to be corrected, but in the absence of some major expert stepping forward, here goes.

A quick look at the precedents, such as the Kosovo case, shows that Scotland’s claim would require a Resolution by the General Assembly. That would need to be proposed by a member State, or ideally a group of States friendly to the idea of Scottish Independence. I’ll leave it to others to speculate on which friendly nations might be willing to support the project.

I suggest, with great trepidation, that such a Resolution might take the form of a Twenty first Century Claim of Right and go something like this:

Start with a declaration that prior to 1707 Scotland was a free, independent State playing a significant role in World affairs that entered into a Union, which a significant number of her population now reject, having demonstrated their disquiet on countless occasions and for good reasons. And

That the UK government has repeatedly acknowledged that the Scottish people are a nation free to choose their own destiny, that it allowed a referendum, then made countless false promises, and that it now obfuscates and delays. 

As a result, modern Scots have been denied membership of the community of nations, have lost access to the EU, and have lost their fundamental freedoms. They fear that worse is to come, citing the expressed enthusiasm by those in control of the UK Government for breaking International Law, plus threats to withdraw from the European Convention on Human Rights, all voted for by the majority of English people while consistently rejected by Scots.

Requests the United Kingdom to permit the Scottish Government to hold a second referendum, on such terms as may be negotiated, such referendum to be monitored by a UN agency to ensure fairness and in the case of the UK Government refusing to do so to ask the Court for an advisory opinion declaring the United Kingdom in breach of the United Nations Charter and to authorise the Scots to hold a referendum themselves.

Final point: I’ve not suggested a reference to colonialism in this, although I know many believe that the colonial route could be used. While in many ways Scotland has been treated as such I take the view that the basic element of having acquired colony status by conquest is missing, so the clear path otherwise available under General Assembly Resolution 1514 isn’t available.


I do not agree with the entire content of this article but that has never stopped me publishing others views. That is what freedom of speech is all about. I think with an English army on our border and an English fleet off our coasts there is not doubt military might was involved in creating the Treaty of Union as well as widespread bribery, in itself a form of corrupt aggression.


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