The independence debate seems to be underway in earnest, aiming for a possible 2010 plebiscite, with press coverage beginning to include details of the timing, the likelihood or otherwise of a Yes vote, and even the wording of the question. What they have failed to do is point out that the Scottish Parliament does not have the power to hold such a referendum, and has neither the competence nor the constitutional ability to discuss independence, far less legislate for it. They may as well discuss the colour of the sky or the reversal of gravity, for all their ability to actually do anything about it, which should come as a surprise to no one.
So, even if Salmond were to get a majority within the Scottish parliament willing to vote for holding the independence referendum, Section 29 of the Scotland Act 1998 would prevent such a vote and perhaps even a debate on the matter from taking place; the section in question "states that a provision is outside the competence of the Scottish Parliament if it relates to reserved matters, or breaches schedule 4 of the Act. The reserved matters are listed in the Act in Schedule 5, and among the general reservations, plainly at s1(b) is “the union of the Kingdoms of Scotland and England”." The SNP cannot, therefore, deliver even a referendum specifically on the topic of independence under the terms of both the Act of Union and Scotland Act.
However (and regular readers will know what’s coming next!) I think that Unionism must be very wary about relying on this provision as a way of pushing the fight against the SNP forward in Scotland.
Salmond will know that without:
1. Westminster's assistance
2. The majority of the Scottish parliament's support and finally and most importantly,
3. The majority of the Scottish electorate's support
...he will not achieve his stated aim of Scottish Independence. He also knows that the most difficult of the above targets to achieve would be point 3) and a defeat in an independence referendum would be a crushing blow for the forces of separatism and his own political career. But if he (and the "Scottish People")are prevented from exercising their "sovereign will" by a combination of the Sassanach majority at Westminster and their own homegrown "traitors", then, he may never need take that risk. Keeping the question of Scottish independence on the slow drip seems a much more sensible strategy for him at the minute.
Unionist strategists also need to weigh up the risk contained in factor 3)- I really believe that such a referendum can be won and won convincingly for the Union; I also think it's imperative that it's held asap, at time of Unionist not nationalist choosing. Westminster needs to now put Salmond and the SNP on the spot and basically give the Scottish (and English and Welsh) people the same right afforded to us in Northern Ireland in the Belfast Agreement, that is the right to decide whether or not they still wish to belong to the United Kingdom.
17 comments:
I can’t think of any sub-state national assembly or legislature in a multinational state, past or present, where such rights were explicitly written in to their powers, but it scores of occasions this has not stopped that institution holding a referendum and winning independence.
The wording of the SNP question was specifically designed by Scotland's civil servants in order for the question to have legal validity in terms of the Scotland Act.
The preferred SNP question does not ask Independence? Yes or No which would breach the Scotland Act; but merely give the Scottish Government a mandate to negotiate independence with the Westminster Government.
In practice though, I very much doubt a Yes / No question would be legally challenged if it came from the Scottish Government instead of Westminster.
After all, the UK Government recognise Kosovo as a independent nation.
Also any legal challenge would be set against the UN Charter regarding the right of self-determination.
There is no such thing as a legally binding referendum in the UK, so debates as to the legality of a particular referendum are moot.
In the UK referendums merely "advise" the government (although obviously they'd suffer politically from ignoring the result).
If I wanted to I could force a referendum in my county just by gathering 20 votes, the Council would be legally obliged to give us a referndum on it.
This is a point of interst for the lawyers only and would have no importance at all come 2010.
north britain
In practice though, I very much doubt a Yes / No question would be legally challenged if it came from the Scottish Government instead of Westminster
It mentions in the article that a
litigation specialist has already been approached separately by two private clients who are intending to "interdict" the Presiding Officer in the event of such a "yes"/"no" question. And that's before the Big Boys at Westminster have even started.
After all, the UK Government recognise Kosovo as a independent nation.
In the world of realpolitik, consistency is not normally a considering factor in British foreign policy- eg it's also refused to recognise the breakaway regions in Georgia.
HF
This is a point of interst for the lawyers only and would have no importance at all come 2010.
Never underestimate the power of lawyers (especially when there is money to be made);)
But as I say, IMO anyway, Westminster should call Salmond's bluff and give him a simple "yes"/"no" referendum at a time of their choosing.
When it comes to politics lawyers come a distant second to politicians. The latters know that ignoring a Yes vote because of a legality would be an utter disaster.
In politics it's not what's legally possible that anyone cares about, but what's politically possible.
The argument which the SNP advances that it is alright because it is a consultative referendum is a weak one. For one, the bar of being ultra vires is deliberately set very low.
To be outwith the legislative competence of the Scottish Parliament, a matter must simply ‘relate… to a reserved matter’ (s.29(2)(b), Scotland Act 1998), and furthermore, s.29(3) states that: the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), ***by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.*** (my emphasis, of course).
To it simply has to ‘relate’ to a reserved matter in its possible ‘effect in all the circumstances’. I don’t think it’s a great leap of logic to suggest that an independence referendum does. Indeed, plenty of people have agreed with this, including SNP figures. The SNP, however, will argue that damn near anything is within their competence and worry about the consequences later.
As for what ‘northbritain’ above has said, it is unparalleled nonsense. For one, it is not the UK Government (except in extreme instances) which stop matters going through the Scottish Parliament (although the Secretary of State has final blocking powers, and ultimately the Queen) - but rather the presiding officer, who is duty bound to refer the matter to the Judicial Committee of the Privy Council. Considering the presiding officer is a Tory, I don’t imagine that any doubt in his mind will fall kindly in the direction of the Scots Nats.
Moreover, ‘self-determination’ as an international legal right does not apply here. Scotland self-determines within the UK. That right does not imply a right to separatist referendums, secession or anything of that sort. The case for that has been very well made by the Supreme Court of Canada in their Reference re: the Secession of Quebec, but more importantly territorial integrity is a fundamental principle of international law, and even the slightest bit of research would have proven this argument as simply wrong.
Oh, and ‘Hen Ferchetan’ - there are such things as legally binding referendums in the UK - post-legislative ones are, by very definition, legally binding. Scottish devolution in the 70s was rejected on the basis of a legally binding referendum.
Fuck, that was a tiring post.
David Mundell, the Conservative Shadow Scottish Secretary has said if the Scottish Parliament voted to hold a referendum on independence, a Tory Westminster government would accept it, leaving the Scottish Tories to campaign for a “no” vote.
So whether the SNP have the legal right or not, it is clear that both the Tories and the "bring it on" Labour Party have conceded that they have the right.
That just leaves people like myself to demand that any such Referendum be duplicated throughout the United Kingdom rather than just allowing them to ignore England's existence yet again.
The legal right is mute. The Scottish people are sovereign and this is accepted by just about everyone. If the Scottish Parliament votes for a referendum, blocking it will cause a constitutional crisis of a magnitude that dwarfs that of a vote that might well be won by Unionism. It's anti-democratic and it will hurt you badly if you try it. Please, please Unionism, be so stupid and half assed as to go down this path. Pleeeeeassssseeeee. I'd go so fgar as to say it more less guarantees Scottish independence.
The legal right is entirely relevant. Firstly, the Scottish people are only arguably sovereign, and even if you do hold them to be there are very little real consequences to that. It certainly doesn't make the Scottish Parliament sovereign - only one parliament can make that claim and it is located on the banks of the Thames.
I don't see how it will be any constitutional crisis at all, particularly if it is withdrawn before a vote as it probably would be. It would simply be the law being enforced. The SNP may think they speak for the people of Scotland, but that doesn't give them any special rights to break the law with impunity.
It's any democratic? To try and destroy the British demos? I'm afraid I don't follow that logic at all - in fact, it would be anti-democratic to allow it to go through.
We must dispense with this rather silly suggestion that we are walking on egg shells in Scotland. There will always be someone there to suggest that abolishing the Scottish Parliament, denying referendums, actually allowing Westminster to act on reserved matters or, basically, anything that suggests Scotland isn't already independent will result in some disaster scenario. It won't. Scottish nationalism has largely advanced by the rejection of the people of such disaster scenarios - Labour propaganda suggested the sky would fall in if Scotland became independent. Of course it won't; and the Nats know that. I wonder why they (and several Unionists) still expect us to believe that old lark.
DG, those referendums were not binding. The UK Parliament is sovreign, if they wanted to force through devolution in 79 they could have legally dones so, whatever the vote was. Pre or post legislation makes no difference, Parliament can always revoke a previous piece of legislation.
If Parliament passes a statute saying "There will be a referendum and if the vote is Yes we will do it" they can hold a refwerendum, get a Yes vote and then pass a new statute the next day saying "we don't have to do it".
The Unionist parties know that if they try and use a legal technicality to prevent a vote it will make Scotland more likely to choose independence not less likely. They know it would be political suicide and will therefore never consider it.
Breaking up Britain IS democratic if the people vote for it, Britain is not some sacred bastion of democracy that should be protected against the will of the people (I'm not saying the people want independence, but if they do vote for it then the UK will end, simple as that)
DG,
Here is the Scottish Government view in its National Conversion:
Isn't all of this outside the competence of the Scottish Government/Parliament?
No. It is entirely proper for the Scottish Government and Scottish Parliament to discuss the constitutional future of Scotland and invite the people of Scotland to express their views. Previous administrations have discussed and agreed changes in devolved competence with the UK Government. The mechanisms in the Scotland Act envisage both Parliaments agreeing to changes in devolved competence.
Is it possible for the Scottish Parliament to hold a referendum on independence? Is it not ultra vires?
As the paper says (Para 5.11 and page 35), as far as legislative competence is concerned, a referendum could be held under the authority of an Act of the Scottish Parliament depending on the precise proposition in the referendum Bill or any adjustments made to the competence of the Parliament before the Bill is introduced.
As other people have said any referendum would be entirely consultative. That is why such a referendum would be intra vires.
As such, it would be unwise for the Presiding Officer to deny such a referendum.
As Wildgoose says both Labour and the Conservatives have already conceded the right of the Parliament to do so. That suggests that the matter will not be referred.
The Canadians argued that the meaning of "peoples" in the UN Charter re self-determination was unclear in the case of Quebec.
I think as Scotland is regarded as a nation already, and a historic one at that would circumvent that argument. However you are right it may be open to interpretation.
The fact that Michael Forsyth, former Conservative Secretary of State for Scotland, argued that Scotland has the right to self-determination and Gordon Brown, the Prime Minister, signed the Claim of Right for Scotland, leads me to believe that my interpretation would be the one that holds sway.
Hen - Yes, the UK Parliament is sovereign. The enactment of those acts, however, depended on the referendums going through. Of course, if the UK Parliament wanted to, it could repeal those Acts. But had they failed, they would have had to introduce new legislation to devolve powers. So they were as legally binding as anything is - that is, with the proviso the Parliament can change the law whenever it wants.
If Parliament enacts an Act that says 'this Act shall have effect on some day or other, PROVIDED THAT a referendum held provides a yes vote' - then that is legally binding.
As for secession. Secession is never democratic - you only have to look at democratic theory, or indeed some of the points made re: the American revolution or the democratic city-states of the Classical age to see that. Democracy relies on a demos - one group from which legitimacy flows. As this matter is a constitutional matter only, according to law, within the legitimate competence of the UK Parliament and thus the British-wide demos, a referendum of only a part of that demos is not democratic. Indeed, it usurps rule from the legitimate demos.
Northbritain,
Yes, it is fine to discuss matters, or indeed to consult on them - these are not legislative actions, and thus do not require legislative competence. However this would be a legislative action, and I think the wording of the Scotland Act prohibits it. As I've said, it's a low bar - anything 'relating' to a reserved power is not allowed, giving full consideration to its consequences in all circumstances.
No, Wildgoose said nothing of the sort. Labour and the Conservatives have never conceded the right of the Scottish Parliament to any say on the matter. The Scottish people, perhaps, not the Scottish Parliament.
As for the point on the Reference in Re: Secession of Quebec, you are quite simply mistaken. Indeed, the Court made the very point that 'it is not necessary to decide the "people" issue' - and it did not. Even if Quebec did constitute a 'people' for that purpose, the Canadian Supreme Court made it clear that self-determination does not grant an integral part of a country a right to secede. The case report is available online and the point of international law is in the last few paragraphs, it makes for an interesting read if you have a few spare minutes.
Whether politicians believe the Scottish people have the right (presumably in the moral sense, since they clearly do not have it in the legal sense, at least as things stand) to secede if they want to does not confer any additional powers on the Scottish Parliament. As the Tories put it, Scotland has two parliaments: this matter is one for the Westminster-based one.
If there was a real upswell in opinion for secession, I am not arguing that Westminster would not grant that - as it did with the colonies and Ireland (albeit, in the latter, after a bit of a war) but it be just that - granting independence - not having independence taken. Whilst I don't think the UK Parliament wants to hold Scotland in the Union against its will, I similarly don't think it wants to use taxpayers money to support a minority Scottish Executive's grand-scale publicity stunt when it seems fairly apparently they lose. I think the sensible Nats know they'll lose, but they'll also have a precedent to bring up the question again and again in the future, and indeed an opportunity to have their voices very much heard on the issue.
DG
Please, please do it. If the Scottish Parliament votes for a referendum and Westminster denies it, there are going to be consequences. A possible scenario is a snap election on the issue, and if say the SNP were returned with an increased majority, you are going to have a Constitutional crisis.
In a technical sense, you are right that he UK Parliament is sovereign. In reality, Scotland has a tradition of popular sovereignty stretching back before the Union, and in the absence of force Westminster can rule only by consent of the governed. It'd be beyond my hopes for Unionism to be as utterly stupid as to head down the route suggested here. I can't think of a thing more likely to piss Scots off and hasten the end of the Union.
DG - I don;t think anyone's stating that a referendum ran by the Scottish parliament would have any legally binding effect on the UK, but we're talking politics here.
Politically if Scotland vote Yes, the UK parliament will grant independence, there is no doubt whatsoever on that one. Not because they legally have to, but because they politically have to. If they don't then the UK opens itself up to all kind of trouble, both from home and abroad.
As for legally binding referendums, I get your point, but it's quite weak. You can't call something legally binding when Parliament can just ignore it and say No. By the same measure although Parliament have put in provisions for a referendum in the GoW Aact 2006 to trigger a Welsh parliament they could if they so wished just skip the referendum and grant the powers anyway.
Kensei:
This is my point about disaster scenarios. There wouldn't be a snap election, or indeed any election, and support for the SNP does not equate to support for independence. Either way, if Unionists really wanted to illegitimise the SNP's referendum, it wouldn't need parliamentary safeguards, they could just boycott it as Republicans boycotted the Northern Irish referendum.
Yes, I accept that a government cannot rule without the support of the people, but I don't think that will happen in Scotland.
Hen,
I wouldn't say my point was weak. The law may be amendable, but that does not make it irrelevant. It still exists. On a strict point of procedure, it would take time to repeal an act which was enacted with a referendum provision.
I'm not particularly arguing the political side of it - the Unionist parties have made clear they will not force the Union if less than half of Scotland supports it, that's really their concern and matters for them to work out. But equally, I don't think there are any great consequences to denying such a referendum on the grounds of it being illegal.
This is my point about disaster scenarios. There wouldn't be a snap election, or indeed any election, and support for the SNP does not equate to support for independence.
I'm not 100% sure if a minority government can force a snap election but in any case the SNP will do this sufficiently close to an election anyway. You have given them a huge stick to beat Unionism with.
Support for SNP does not equate to support for independence, but you are shutting your eyes and wishing really hard if you tell yourself it doesn't indicate a shift. And one thing Scots have been very clear on - they want their say, one way or another.
Either way, if Unionists really wanted to illegitimise the SNP's referendum, it wouldn't need parliamentary safeguards, they could just boycott it as Republicans boycotted the Northern Irish referendum.
Now, that one might work in killing the referendum as an effective test. But I can't see it doing any good for Unionist parties to have run away from the debate, and could easily hand more power to the SNP. It's another recipe for instability, particularly if a Tory government is voted in and returns a paltry number of seats in Scotland. If I was the SNP I'd go for the throat on the legitimacy to govern. Cameroon has already had to deal with that one obliquely.
Yes, I accept that a government cannot rule without the support of the people, but I don't think that will happen in Scotland.
It will if you take the people for granted and treat them with contempt.
As I said, please do it, because Unionism will come off worst.
Post a Comment