Consent Withdrawn: Why a People‑Led National Convention Is Scotland’s Lawful Response to a Denied Democracy
Silence Is Not Consent
Too often, Scotland’s right to self‑determination is measured not by principle, but by polling margins, party manifestos, or London’s permission. But behind the political theatre lies a more foundational truth—in Scots law, consent is not permanent. It can be withdrawn.
If voting in UK elections is interpreted as granting consent to the Union, then Scotland has every right to lawfully withdraw that consent. Not through party politics, nor Westminster debates, but through its own constitutional heritage — a heritage where sovereignty rests with the people, and where consent must be active, verifiable, and ongoing.
This is not about making demands. It’s about re‑asserting an old truth, one that goes deeper than any headline or campaign soundbite:
In Scotland, sovereignty is a matter of memory as much as law.
The threads matter. The words matter. The silence matters.
And those who carry the old memory can spot when others do not.
That’s the point. Let those with ears to hear, hear it.
Part I: Sovereignty in Scots Constitutional Tradition
In contrast to Westminster sovereignty, which rests in a parliament, Scotland has long embraced the principle of popular sovereignty — a doctrine traced through writers like George Buchanan and reaffirmed in the Claim of Right (1689 and 1989). According to this heritage:
Consent is not presumed.
Consent must be verifiable, continuous, and revocable.
The people are the final and only source of authority.
A people‑led National Convention is not a campaign tool or an opinion poll. Under this tradition, it is a lawful constitutional act — a direct expression of popular will that the state and its institutions must acknowledge.
Grounding Sovereignty in Scotland’s Constitutional Tradition
Claim of Right (1689):
“That it is the right and privilege of the subjects to petition the king, and that all prosecutions and imprisonments for such petitioning are illegal.”
(Records of the Parliaments of Scotland, APS IX, 1689/3.)Claim of Right (1989):
“We, gathered as the representatives of Scotland, hereby acknowledge the sovereign right of the Scottish people to determine the form of government best suited to their needs.”
(Commonly called the Claim of Right for Scotland, signed by representatives of Labour, Liberal Democrats, Greens, and civil society.)George Buchanan, De Jure Regni apud Scotos (1579):
“The people are placed above the king, and can remove him if he fails to rule for the common good.”
(Translation by Roger Mason, Edinburgh University Press, 2005.)
Part II: The Fallacy of “Population Majority” and the Role of the Electoral System
Opponents of Scotland’s sovereignty frequently move the goalposts, claiming only a “population majority” (i.e., more than 50% of the total electorate) can justify independence. Yet in every other UK election — including the making of its governments — a majority of those who vote is enough.
Why the special rule for Scotland? Why the shifting standard?
Here’s the truth: In a Convention grounded in Scots Law, legitimacy doesn’t hinge on Westminster metrics of turnout. It rests upon the offer and verification of consent. As the old saying goes:
“If consent is offered openly and those who participate accept,
the abstainers cannot overrule the result.
Voting is consent. Silence is not veto.”
The UK electoral system operates as a mechanism for manufacturing consent. Even abstention is framed as apathy rather than dissent. So long as Scotland operates exclusively within that structure, its silence will be misread as agreement.
The solution? A National Convention — not party‑led, not politically manipulated, but lawfully convened by the people themselves — can create a new point of verification. Its legitimacy rests upon its:
Sovereign authorship (convened by and for the people, not parties)
Transparency of process (inclusive, openly observed, and universally accessible)
Verifiable output (a direct expression of the will of the people)
If such a Convention achieves a majority of the entire franchise, its legitimacy will stand higher than any election or party mandate can claim.
The Nature of Consent and Its Withdrawal
UN International Covenant on Civil and Political Rights (1966):
Article 1: “All peoples have the right of self-determination.”
Article 25: “Every citizen shall have the right and the opportunity…to take part in the conduct of public affairs…”
A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885):
“Parliament has no right to bind its successors.”
(7th edition, p. 37.)Hector L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh, 2003):
Details how sovereignty and consent in Scotland were exercised through popular assemblies and baron courts long before the Union.Act of Union (1707):
The agreement between Scotland and England rests upon mutual consent, making its continuation contingent upon that consent being maintained.
Part III: What Happens When Consent Is Withdrawn?
If a National Convention declares that Scotland’s consent to the Union has been lawfully withdrawn, this does not, in itself, trigger separation. What it does is shift the burden of proof:
From Scotland, to justify its right to govern itself,
To the UK Government, to justify its right to govern a nation that has withdrawn its consent.
That shift is not just symbolic. It is rooted in:
The Claim of Right (1689 and 1989), making clear that Scotland’s sovereignty rests with its people.
International law, including Articles 1 and 25 of the UN International Covenant on Civil and Political Rights, affirming every people’s right to self‑determination.
This is why a National Convention is not just a campaign tool, or a symbolic gathering. It is a constitutional mechanism that can lawfully and openly assert Scotland’s right to reject a union that no longer rests upon consent.
Framing the Right to Withdraw Consent
Articles of Union (Article XIX):
Scotland retains its own legal and constitutional identity, making the Union a treaty between nations rather than an internal matter.Legal Opinion of Prof. Aileen McHarg (2019):
“Scotland, as a distinct legal and constitutional entity, can assert its right to self‑determination, regardless of UK Parliamentary sovereignty, if popular consent is clearly expressed.”
(McHarg, A. ‘The Legal Framework for Independence’, Edinburgh Law Review.)Lord Cooper, MacCormick v Lord Advocate (1953):
“The principle of the unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law.”
(1953 SC 396.)Venice Commission (Code of Good Practice for Referendums):
Defines legitimacy in terms of “expression of the will of the people” regardless of state-imposed turnout thresholds.
Conclusion: From Managed Democracy to Civic Authority
The future of Scotland will not be settled by polling margins, party arithmetic, or permission granted by another parliament. It will be settled by the people themselves — through a process rooted in heritage, law, and consent.
A National Convention is not an appeal for change. It is an assertion of right. An assertion rooted in the threads of a long memory, in the words long ago spoken, and in the sovereignty Scotland never surrendered.
Let the political class debate percentages. Let the people remember their authority. Let the threads lead where the words already point.
In Scotland, consent can be offered. And, when necessary, it can be withdrawn. Not as an act of rebellion, but as an assertion of lawful continuity — from the people, by the people, for the people.
Footnotes
Claim of Right (1689): APS IX, 1689/3. See also MacCormick v Lord Advocate, 1953 SC 396, where Lord Cooper stated that the sovereignty of the Scottish people is distinct from that of Westminster.
Claim of Right (1989): Public declaration signed by civic and political representatives, reaffirming the sovereignty of the Scottish people.
Buchanan, George, De Jure Regni apud Scotos (1579), translated by Roger Mason, Edinburgh University Press, 2005.
UN International Covenant on Civil and Political Rights (1966): Articles 1 and 25, affirming the right of all peoples to self‑determination and to participate in public affairs.
A.V. Dicey, An Introduction to the Study of the Law of the Constitution (1885), 7th ed., p. 37 — stating that no parliament can bind its successor.
Hector L. MacQueen, Common Law and Feudal Society in Medieval Scotland, Edinburgh University Press (2003).
Act of Union (1707): Articles and its implications for Scotland’s constitutional status as a distinct legal entity.
Aileen McHarg, “The Legal Framework for Independence,” Edinburgh Law Review, 2019 — detailing Scotland’s right to assert sovereignty regardless of Westminster supremacy.
Venice Commission, Code of Good Practice for Referendums (2007): Principles for assessing legitimacy based on the expression of the people’s will.
Methodology Note
This article draws upon historical records, legal texts, and international legal instruments to trace the threads of Scotland’s constitutional heritage. Its structure intentionally separates assertion from evidence — allowing the text to speak in its own voice, while providing fully sourced footnotes for those seeking deeper verification. The approach is based upon:
Identifying authoritative texts (statutes, treatises, international covenants).
Contextualising historical examples within modern legal discourse.
Highlighting the distinction between formal “de jure” sovereignty and actual “de facto” expressions of popular will.
Disclaimer
This article is presented with full awareness that recent years have witnessed a drop in voter turnout across Scotland, despite continued support for independence. This paradox — rising support for the idea, waning participation in the electoral process — is itself a call to inquiry. It leads to one unavoidable question:
Why?
Why do increasing numbers of Scots feel detached from the very democratic process meant to secure their right of self‑determination? What does this say about the nature of consent, legitimacy, and the structures that claim to govern in their name?
The threads laid out here are intended to aid that inquiry — to invite questions as well as to offer context. The point is not to dictate an answer, but to illuminate the path toward one.