Respect for Scottish Popular Sovereignty is seldom considered by lawyers

A guest letter from Andy Anderson

This letter from Andy Anderson was published by The National on December 9th, 2023. He responds to another reader’s questions about his December 6th letter on the route to independence which lies through understanding and respecting Scottish popular sovereignty.

I note Campbell Anderson’s thoughtful letter in The National on Wednesday and will do my best to address his questions.

He asks why the Scottish Government has not engaged lawyers to examine the issue of Scottish sovereignty and its full implications. Well, Nicola was a lawyer and she led us down the wrong track. The expertise of lawyers is to examine the text of statute law and consider how it can be interpreted, or to look at the common law and how it has been interpreted in the past.

What they seldom do is consider the sovereign authority behind any law, or indeed if a particular law is acceptable to the community and is viable in that sense.

Every legal system needs to be supported by a sovereign authority of some kind. Laws passed in the Westminster Parliament which get royal assent are valid laws in England, but they do not apply in France, however good these laws might be.

So sovereign authority is vital for the validity of any law.

If sovereignty in Scotland rests with the People, which can be demonstrated in our constitutional history, and if there can only be one source of sovereignty in any state, then it follows that the UK Government, or King Charles, or the UK Supreme Court can’t be sovereign in Scotland. Indeed sovereignty in Scotland can only be exercised by a Convention of Estates, which can be called by the Scottish Government or the Scottish People.

My second point, that any law must be acceptable to the community it applies to, is a wider question than any lawyer can address, but it is entirely valid in any modern democratic state.

One example I can give of that in Scotland in recent times is the Westminster legislation for tolls on the Skye Bridge, The New Roads and Street Works Act. This was legislation passed by the Westminster Parliament which received royal assent and is still on the statute book in Westminster.

This act makes it a criminal offence to cross the Skye Bridge without paying a toll. The act is still there, the law is still there but the toll booths are gone. So people cross every day and ignore this law because the UK state found it could not apply it because the community would not comply with it.

Campbell is not alone in looking for a way forward towards independence. Many, many thousands in Scotland are like him in this regard. The answer is to respect Scottish sovereignty, because this provides us with a legal way forward, which must be supported by every Scottish court which gets its authority from Scottish sovereignty, and which can’t be challenged by any court outwith Scotland. The answer, Campbell, lies in our own hands.

Andy Anderson