7 February 2012

Matt Qvortrup: Numpty....

I suppose being a "world expert" on referendums doesn't leave one much time for being a modest scholar of the Scotland Act. In today's Herald, the apparently indispensable Matt Qvortrup has once again taken up his quill to reassure us all that an independence referendum is tickety-boo under the current law. "Judges", he says, "will not be the ones to decide on independence". I tend to agree. In all likelihood, it seems as if Holyrood and Westminster will cut a deal on a single question poll, allowing a referendum to go forward, inoculated against the threat of a stubborn litigant with a will to waylay it. That, however, is not the reasoning that prompts the Professor to share my conclusion. 

Qvortrup's thesis is that the case against the legal competence of Holyrood's independence referendum is "not strong". This despite recognition a couple of weeks back from the Scottish Government that legal considerations previously prompted it to frame their initially proposed referendum question in such tortuous language.  Regrettably, as one has come to expect from his past performances, in this article Qvortrup doesn't let his ignorance hold him back. Unencumbered by modesty, and uninformed by modest efforts to ensure his "legalistic pondering" benefited from basic accuracy one would expect of first year law students, Qvortrup has once again produced an impressive bucket of swill.

Given his academic credentials, and the number of people who continue to take his commentary seriously on these matters, it seems a worthwhile exercise to lay out the range of elementary - damning - errors Qvortrup makes in this piece, if only to solicit members of our press to cease giving the man space to air his cluelessness. He's a numpty, who doesn't know he's a numpty, whose feeble scholarship on Scottish devolution risks making numpties of us all. You may discover that writing your own ignorant copy is cheaper. Qvortrup's legal analysis begins with the point that:

"Formally speaking, the Scottish Government is not entitled to hold a referendum as this is not one of the powers devolved to Holyrood under the S.30 of the Scotland Act 1998. To hold a referendum would be outside the powers of the Scottish Parliament. But there is a snag with this argument. It is unlikely that the courts – let alone the Supreme Court – would have anything to do with it."

As casual scholars of the Scotland Act all know, this just isn't how the devolution legislation is framed. The crucial concept is "reserved matters" - powers reserved to Westminster, with Holyrood scooping up everything not explicitly held back.  "Formally speaking," under Schedule 5 of the Scotland Act, referendums aren't reserved, while some aspects of the constitution - including the Westminster Parliament and the Union of the Kingdoms - are.  Confusingly, given its absolute centrality to the case against the referendum's legality, he makes no reference to the question courts would have to ask themselves: does an independence referendum "relate to" a reserved matter? Even the reference to section 30 is mildly perplexing, as that primarily gives effect to the schedule of reserved matters and provides for their amendment by Order in Council, in supplement to the general legislative competence provisions of section 29. An innocent slip, you might think, warranting the benefit of any doubt going. It does not, however, immediately reassure you that Qvortrup has read the Act of parliament at the heart of these learned disquisitions. After a brief Texan soujourn, he continues...

"The British Supreme Court (previously the House of Lords), has shown a marked reluctance to get involved in issues dealing with matters pertaining to the possible illegality of Acts of the Scottish Parliament. In the case of AXA v The Lord Advocate (2011), the only case to have dealt with the limits of the powers of the Scottish Parliament to date, the Supreme court refused to declare an Act of the Scottish Parliament void. The court held that it respected "the judgment of [an] elected body as to what is in the public interest".

Regrettably, almost nothing in this vital paragraph is true.

1. AXA v. Lord Advocate is categorically not the only case to have "dealt with the limits of the Parliament to date".  Remember the legal challenges to the fox hunting ban earlier in the parliament? More recently, Imperial Tobacco and Sinclair Collins Ltd have unsuccessfully challenged Holyrood's 2010 ban on tobacco displays and vending machines in the Court of Session on legal competence grounds. AXA is not even the only UK Supreme Court decision which has "dealt with the limits of the Parliament to date". In March 2010, the UK Supreme Court handed down judgment in Martin and Miller v. HM Advocate, which was explicitly concerned with the "limits of the powers of the Scottish Parliament". Again, these indications are less than reassuring about Qvortrup's awareness - nevermind understanding - of judicial decisions on the Scottish Parliament's powers which are ... um ... merely essential considerations to this Herald article. Ho hum.

2. So little prose, so many inexactitudes! In a few sentences, Qvortrup totally distorts what the AXA judgment on Holyrood's pleural plaques legislation was all about. The Insurers' argued that the legislation - which prospectively and retrospectively declared pleural plaques actionable harms for the purpose of the law of negligence - disproportionately interfered with their property rights under Article 1 of the First Protocol to the European Convention, without a legitimate reason in the public interest.  The Court had to contend with a series of tests from the case law of the European Court of Human Rights. Did the Act interfere with the "possessions" of big insurers? Was the parliament's assessment of the public interest “manifestly without reasonable justification”? Was the interference with the insurers' property proportionate, in the absence of any compensation for the deprivation of their funds?

3. Qvortrup cherry-picks a nice quote, implying that the Court will always sag in the face of whatever policy an elected parliament endorses: "the judgment of [an] elected body as to what is in the public interest".  The crucial point is that the term "public interest" is being used technically - not generally - in assessing the compatibility of the pleural plaques Act with European human rights law, protecting property rights (including the rights of corporations like AXA). Picking up the AXA judgment, I tried to locate Qvortrup's quote. The phrase "elected body" appears twice in the judgment, but nowhere the form of words the goodly Qvortrup gives us, in quotation marks. Again, this is less than reassuring. Both appearances put the idea in context:

Per Lord Hope, at para [32]:

"... in the hands of national courts too the Convention should be seen as an expression of fundamental principles which will involve questions of balance between competing interests and issues of proportionality. I suggested that in some circumstances, such as where the issues involve questions of social or economic policy, the area in which these choices may arise is an area of discretionary judgment. It is not so much an attitude of deference, more a matter of respecting, on democratic grounds, the considered opinion of the elected body by which these choices are made."

And per Lord Brown at para [83]:

"... with the other members of this Court, I am prepared, given the wide margin of appreciation properly accorded to a democratically elected body determining the public interest by reference, as here, to political, economic and social considerations, to regard this legislation (ill-judged though many might regard it to be) as legitimate and proportionate and so immune from challenge under A1P1. Had the test been that of “compelling grounds of public interest” I should not have regarded it as satisfied. I am not, however, prepared to condemn this legislation as “manifestly without reasonable justification.”

Reading these fuller excerpts, you quickly realise that the mashed-up, lightly parsed quotation Qvortrup furnished us with does not, in fact, support his general contention that the UK Supreme Court would suspends its own judgment whatever Holyrood decided, whether or not it appeared in contravention of the Scotland Act or not. Not reassured thus far that Qvortrup a) has read or understood the Scotland Act b) is aware of, never mind has read or understood the case law on the Scotland Act, we now know that didn't have the care to ensure that he was making an accurate reference to the case he purports to quote from, or was properly conveying the force of the Court's judgment when mis-quoting from it. If you aren't already minded to give up, the Professor scoffingly shares his - ridiculous! - thought that the courts might be forced seriously to consider the referendum's legality under the Scotland Act, writing...

" But if we – for a moment – entertain the thought that the Supreme Court did intervene, how would it rule? We have few directly comparable cases, but it seems likely that the Law Lords would at the very least be inspired by the Canadian Supreme Court. In 1998, in a reference about the legality of a referendum for the French- speaking province of Quebec, the Canadian judges held that the rest of Canada "would have no basis to deny the right of the government of Quebec to pursue secession".

True, negotiations would have to follow to define the terms under which Quebec would gain independence, and the referendum would have to be compatible with the principles of democracy, protection of minorities and the rule of law. Moreover there should be a clear question, but, provided that these conditions were met, a referendum could be legal.

Applying these principles to Scotland, would the referendum be acceptable? In all likelihood yes, but it would depend entirely on the organisation of the referendum."

Impressively, Qvortrup manages both to overstate and understate the powers of our Courts. Holyrood is a creature of statute, created by Westminster. If you want to challenge its Acts, you can do so under the conditions in the Scotland Act. For the would-be litigant, there are a number of potential lines of argument - human rights, EU law, reserved matters - but the list isn't infinite. You can't just pluck a "legal" argument out of the air - or say - Quebec -  and smack Holyrood about with it. So my question for Qvortrup would be: what legal basis do you have for the idea that the referendum's legality would in any way depend on the organisation of the referendum? The Canadian case may be interesting but how - precisely - does it relate to the envisaged Scottish litigation, which would concern the limited statutory powers of the Scottish Parliament under domestic legislation? Answer, I suspect, comes there none. Qvortrup isn't interested in the law and as we've seen, shows himself cavalierly willing to offer authoritative legal analysis, lacking even a modest awareness of critical legal sources and issues.

So in summary, if challenged, the legality of the independence referendum would fall to be determined under the Scotland Act: likely coming down to the question, does an independence referendum "relate to" reserved matters? Matt Qvortrup does not appear to understand the general structure of the Scotland Act, and identifies a peripheral section of the enactment as the vital one. Matt Qvortrup shows no awareness whatsoever of the extensive pre-existing litigation on the interpretation of the Scotland Act. Insofar as Matt Qvortrup is aware of litigation in this field, he misquotes from it. Matt Qvortrup's non-quotation either consciously distorts the meaning of the judgment not-quoted, and the points in issue in that case, or simply fails to comprehend the litigation, or has not read it sufficiently closely to apprehend its significance. All of this sage "legalistic pondering" accumulated, Matt Qvortrup feels able to give an authoritative legal opinion on the strength or otherwise of any challenge to the independence referendum under the current law. 

Which combines to suggest one, rather pertinent question: why the hell does anyone take Matt Qvortrup's opinion on this seriously?


  1. "why the hell does anyone take Matt Qvortrup's opinion on this seriously?"

    He has a peculiar name?

  2. Conan,

    A rational reason! Foolish of me. *scrubs the entire critique*

  3. Goodness me. I have not a scooby on the legalities - all I wonder is why Eck and Cam don't just issue a statement saying

    'We are bored rigid on this topic and have our work cut out delaying economic catastrophe so we are passing the buck (or rather Landseer Stag) to someone who can be trusted to handle it. Step forward, LPW'.

  4. I didn't even read this article. Just looked at the purple bow tie and thought yeah, good point well made.

    I'm sure all the supplementary arguments are flawless - but also superfluous in the face of that tie.

  5. This, of course, is not the first time he's paraded his ignorance of the actuality of the legal situation: Scotsman 11 January -- where he also mis-reports the Scotland Act, and repeats all the same errors regarding AXA.

  6. It gratifies this old Unionist no end when a staunch SNP supporter like LPW writes in such a vein

    I'm bored rigid with the SNP's secret weapon is alleged to be a relentless positivity

    This shows why they have to be so positive, it's all a lie, they have no power to try and change the Constitutional arrangements

    They could win every single seat in Scotland for Westminster and they have no power to change a thing. They are impotent

    And, if a fine legal mind like LPW can't think of a way to make it legal no one can

    Cameron, Miliband and Clegg should stand together and just say "no. Try it, see where it gets you, the Supreme Court will strike it down and there isn't a goddamn you can do about it"

    Next I'd abolish the pretendy-parliament and bring Scotland back under direct Westminster control where it belongs!

  7. Lol Robert I think you are several months behind the curve.

  8. Indy

    No, at present the Unionist parties seem bedazzled by the SNP victory, but here we are, months later and LPW can't even see a way to make what he wants a reality given the legal structures and strictures that exists

    Let the SNP bump their impotent gums!

  9. Mr. Lallands,

    It is in the interests of the legal profession to insist this is a wholly legal matter. Keeps you all in work.

    The point is, even if a court said NO, does that override the democratic freedoms involved in a country choosing self determination? If it doesn't what is the point of a legal challenge. If action based upon a legal action is not possible, it kind of makes the legal argument irrelevant.

    If every country seeking independence had to get legal permission from the dominant state and its supreme court, I'd suggest there might be no independent countries anywhere.

    This is a legal problem in the minds of lawyers and the old duffers in the house of Lords, and nobody else.

    The tie on the other hand, really should be made illegal.

  10. Robert Blake,

    I'd argue the legal opinion of Mat Qvortrup is no less valid than the former divorce solicitor, Jim Wallace. It is however, significantly less tainted by politics.

    Like many, you have a limited understanding of the nature of the treaty of union between Scotland and England.

  11. @ Robert Blake

    "Next I'd abolish the pretendy-parliament and bring Scotland back under direct Westminster control where it belongs!"

    Maybe there should be a third question on the ballot, to wit:

    "Do you agree that we should abolish the pretendy Parliament?"

    I we need one on "devo-max", why not on "devo-min"?

  12. Braveheart

    Why bother?

    My point is that LPW can't even justify the Referendum or any other mechanism for his avowed political aim. Nothing will get him what he wants.

    I would go further, after we smash any such notion of a consultation we should just dispense with the "niceties" of the Act of Union, the Scots have shown they cannot be trusted.

    Unify the legal, health and education systems. If they are part of Britain then Britain should have one code of law, one policy on health provision and one education policy. One and one alone.

  13. Great piece LPW - are you trying to get letter in Herald making this point?

    On those that say the legal questions are irrelevant on a visceral level you are right but it ignores the shift that Salmond and the SNP leadership have made since devolution. Explicitly they have made it clear that they work within the restrictions of Scotland Act 1998. Sillars and others attempted to challenge this unsuccessfully in 1997-8. Remember then the policy was a simple majority of Nat MPs would negotiate independence. Then I think a referendum would be held on a new constitution post independence.
    If Salmond had mobilised a grass roots independence movement that could mobilise a referendum then the legal nicities wouldnt matter so much. But he hasn't so they do.
    But as LPW points out it looks very much like a deal will be struck to allow a legally safe referendum under the Scotland Act 1998 to go ahead.

  14. Excellent analysis; this chap is essentially an experienced comparative political science academic and researcher who makes the fundamental mistake of giving a political opinion - which would be absolutely fine - but dresses it up as if it is a considered legal opinion. As you have so eloquently illustrated, his opinion on the law of Scotland is wholly ill-considered, unqualified and should be taken with a rather large salt mine. He runs the risk of losing his academic credibility, and maybe even his bow-tie?

  15. Robert Blake -

    "They could win every single seat in Scotland for Westminster and they have no power to change a thing. They are impotent"

    This sounds like a perfectly good reason for independence. By your own words the Scottish people are voiceless and powerless. The supposed "unionist" makes a clear case on the positive reasons for independence.

  16. "Unify the legal, health and education systems. If they are part of Britain then Britain should have one code of law, one policy on health provision and one education policy. One and one alone."

    So you would drag us all down to the UK level on each of these areas. Scotland's health and education systems are far ahead of the rump UK, our laws are in advance of theirs as well. Only today Westminster apparently thinks it a good idea to enact a new law against stalking - the Scots already have such a law and it has been working very well from what we hear. That's why Westminster plan to copy it.

    Unionists need to get a life and change their reading material. What they don't seem to understand is that the Scots are a sovereign people who can make their own destiny.

    Or keep taking the tabloids and live in your own fantasy world.

  17. I'm learning more with these articles about the law than I ever thought possible - but don't hire me as a defence lawyer!

    I love how all these "experts" - usually in the pay of the media - allow their own personal feelings into their articles.

    He's supposed to be a legal expert (ha!), not Jeremy Clarkson.

    And where the hell does his name originate from? Scandinavia? It sure as hell ain't Clydebank.

  18. @BotN

    "Independence is the only way to change the balance. "

    Barbie, it doesn't matter where he comes from. It matters what sort of person he is and whether he is right or wrong.

    After all, nationality is just an accident of birth...

  19. OOPs that should say "And where the hell does his name originate from? Scandinavia? It sure as hell ain't Clydebank."

    Barbie, it doesn't matter where he comes from. It matters what sort of person he is and whether he is right or wrong.

    After all, nationality is just an accident of birth...

  20. This comment has been removed by the author.

  21. Anonymous & Katherine

    But you read the various articles by LPW

    The Scots have no power, no recourse, should Westminster grant it, to change things.

    No avenue is open to them, the law is against them. Anything they will try will be stopped.

    Given that, Given the supremacy of Westminster that even LPW acknowledges (the subordination of the Scottish Legal system to the Supreme Court has recently been made evident, whereas English law is obviously in a superior position) might as well finish the job

  22. Frankly, I agree that any supposedly civilised government in a mature democracy that attempted to deny a desire expressed by a majority in a democratic referendum would get short shrift in any international court and would create so much resentment in Scotland that the Independence issue would quickly and permanently become de facto if not de jure. The legal discussion would be deemed moot and a matter for historians.
    However, it's not beyond the bounds of possibility that some delay might be occasioned by some imperialist loon-with-money kicking up a fuss.
    Given that, I would be very interested in LPW's view of the argument, frequently advanced, that the terms of the Declaration of Arbroath and the Claim of Right are enshrined in Scots Law; that the legality of Scots Law within Scotland is guaranteed by Article 19 of the Treaty of Union; that the People are therefore sovereign; and, accordingly, that the referendum, being an expression of the will of the Scottish People, would trump any Westminster legislation invoked to discredit it. This is widely believed in Scotland to be the basis of the SNP's claim that the referendum would be legal. How do you assess this?

  23. The basis of the union clearly marks out that Scotland can break the union or make changes to it if it chooses to do so. If Westminster declines to agree with that then the jig is up and the Rumpians will have to tuck their tails between their legs and scuttle off and leave a free Scotland alone. Anything else and they are acting in a colonial manner and contrary to the original agreements.

  24. R Louis

    OK, so let's assume that the "democratic right to self-determination" can usurp the letter of UK constitutional law.

    However, when would that apply?

    When the SNP gets more than 22% of the electorate to endorse it in an election during the course of which they try their best not to mention the referendum, never mind question marks over its legality?

    Or perhaps when the SNP conducts a Westminster election as being predominantly about independence and perhaps gets more than a half dozen or so MPs?

    Or when opinion polls demonstrate an equivocal and long-standing support for independence?

    The fact is that as things stand this "democratic right to self-determination" isn't a particularly persuasive one, and even May's supposed mandate isn't particularly compelling vis-a-vis a referendum except on the basis of crude parliamentary arithmetic.

    Nevertheless, I don't think many dispute the democratic mandate for a referendum, and it's not as if Westminster is demonstrably opposed to a plebiscite conducted on a fair and indisputably legal basis.

    Therefore I can't really see how the "democratic right to self-determination" is being thwarted at the moment.

    This isn't UK v India at the fag end of the British Empire, and you're not Mahatma Ghandi.

    I'm sure that if the current situation became analogous to that of pre-independence India then your analysis would be more compelling, but until such time your case amounts to little more than crude rhetoric.

  25. Robert Blake - good work my man. Hook, line and sinker.

  26. LOL, aye indy, as an old unionist,LOL.

  27. My reference in all I say, is the right to self determination as enshrined in the UN charter of human rights, and upheld by the council of Europe and the ECHR. Their is no requirement for a country to seek legal authority to seek independence. Indeed, no independent country in the world has ever done so.

    This is why the legal positions discussed by LPW are interesting, however in relation to self determination, they become irrelevant.

    Consider, the pretendy London 'supreme' court says NO, and the people of Scotland says 'YES', what will happen?? Will London send troops up to Scotland, like they did in Ireland? Legal judgements become irrelevant, when they have NO consequences.

    With the current situation regarding Las Malvinas, expect to hear London shouting loud and long about the right of 'Falkland Islanders' to self determination.

    It seems Westminster regards self determination as an inalienable right, but only if you choose to be 'British'.

  28. R Louis

    So how precisely does the mechanism of the right to self-determination work?

    For a start, how precisely is the desire for self-determination manifested?

    A Newsnet Scotland readers' poll?!?

  29. Owing in great part to my way of writing on this topic (not wanting to reiterate myself and making implicit and explicit reference back to my past posts), I'm conscious that a few folk think I'm suggesting that the referendum is unlawful and needs must remain so now and forever.

    For the sake of clarity, that's absolutely not my position. In fact, if Westminster and Holyrood can agree an order under section 30 of the Scotland Act, amending the list of matters reserved to Westminster in schedule 5, the referendum will be clearly legal, no bother.

    What is more difficult, however, is the legal position now under the unamended Scotland Act. On that, I've consistently argued that the independence referendum is arguably legal, but no more than that. The matter isn't clear, certain, Holyrood does not definitively and absolutely have the power. I explained why in some (I hope accessible) detail here. Under the Scotland Act as is, the Scottish Parliament Act authorising the referendum would almost certainly be subject to challenge in court, the case could drag out appallingly, and the outcome of that litigation one way or the other could not be predicted with any certainty at this stage.

    It is this lack of security from legal challenge which has primarily concerned me for some time and why the steps towards a s30 order are generally to be welcomed.

  30. The blog post you refer to states "Show me the section of the Act of Union or the Claim of Right or paragraph of MacCormick v. Lord Advocate which provides that a future devolved parliament, set up by the parliament created by the Union, shall have untrammelled power to hold referendums. You won't find it. It isn't relevant."
    However, that doesn't address the question of the sovereignty of the People. Whether the referendum is legal or not under the Scotland Act, once it has taken place, it is undeniably the expressed wish of the Scottish People. According to the Declaration of Arbroath and the Claim of Right, and assuming (as I do) that these fall under the guarantees to Scots Law contained in the Treaty of Union, then that expressed wish has the force of law whether or not the referendum that established it could lead to an Act allowed by the Scotland Act in the Scottish Parliament. International law, as I understand it, would also back the premise that a nation's democratically expressed desire for independence should be heeded. Short of military invasion, what could Cameron do if Scotland simply declared itself independent?

  31. And does this change any of your views on the legality of the matter? http://ukconstitutionallaw.org/2012/01/31/gavin-anderson-et-al-the-independence-referendum-legality-and-the-contested-constitution-widening-the-debate/

  32. Lallands Peat Worrier,

    What do you consider of the opinion expressed by several 'legal eagles' here;


  33. Bobelix, you beat me to it :)

  34. So how is this illegal referendum to be conducted, or is Brian Souter being lined up to bankroll a private one?

    If a Scottish Government referendum was declared illegal by the courts then what would be the practicalities of organising one?

    Would a private referendum represent a mandate for independence under international law?

  35. You too are several months behind the curve Stuart.

  36. So disagreeing with you makes someone a numpty. An excellent analysis there. He is an acknowledged expert and (Amazing! Gasp!) thinks international law and international practice has something to do with a the fact that no people have to have another people's PERMISSION to demand self-determination. A lot of people are aware that you are convinced that Scotland (but only Scotland) needs permission for self-determination. This is a very questionable position to take.

  37. And I am appalled at the degeneration into name calling and disrespect in this. Is this your usual reaction to someone disagreeing with you? In which case, you have a serious problem.

    In case you missed your own blog, Dr. does INDEED have academic qualifications. Dr. Qvortrup studied politics and history at Brasenose College, University of Oxford. He was awarded his doctorate Constitutional Implications of the Use of the Referendum (A study of Constitutional law) from Oxford in 1999. Dr Qvortrup has taught at The London School of Economics, the Robert Gordon University, and Aberdeen.

    I think you would have rather a difficult time even beginning to compare with those. Now you have every right to disagree and post your disagreement, but you went way, WAY over any reasonable line in the the way your referred to him. To me you totally blew your OWN case out of the water.

  38. Indy said:

    "You too are several months behind the curve Stuart."

    Well as a member of the public and thus 'outside the loop' of collusive politicians of course I'm behind the curve Indy, but it's surely better that than inhabiting a different dimension entirely!!

    No one seems to be able to provide concrete information regarding how a referendum declared illegal would actually be run, or able to provide information on the international law jurisprudence on the precise circumstances under which Scotland could declare UDI, or whatever, least of all yourself by the looks of it.

    Thus it's surely reasonable to conclude that that stuff is all a bit pie in the sky and that Scotland is hardly in the position of 1920s Ireland or 1940s India as some seem to allude.

    Which is presumably why rather than telling interfering Westminster to go forth and preparing Scotland for an unauthorised referendum and UDI under international law, Alex Salmond is instead negotiating a deal for an indisputably legal vote under UK constitutional law.

  39. As a member of the public who likes to comment on political blogs you ate as capable of reading the newspapers as anyone else.

    As such you are perfectly aware that the UK Government has indeed agreed that the Scottish Parliament can hold a referendum on independence and has agreed to take whatever steps are necessary to ensure that it cannot be legally challenged.

    Why has the UK Govt agreed? Because according to the court of public opinion - which I regretfully have to tell all the lawyers out there is the true supreme court as far as politicins are concerned - they had no choice.

  40. Lieutenant Boruvka9 February 2012 at 10:46

    Yes Mr Worrier, what about the Claim of Right and the Declaration of Arbroath. I have read the Claim of Right. It makes clear thst no catholics are to be monarchs FACT And it is asserting the importance of the people. FACT I do not care that some people say that the people that it means are everyone apart from women, working people, and Catholics. That is not what it means. FACT. And the Declaration of Arborath is the most important document in Scottish history. FACT It gives power to the people. FACT Some will say that it did not cover vassals, cottars, tenants, and others. But they are all wrong. FACT. Until you address the Declaration of Arbroath and the Claim of Right how can we take seriously your intemperate criticism of one of the most distinguished academics in the world - regularly referred to in the Scottish Parliament and the news, and in the papers all the time? Are you really suggesting that the Scottish papers are so bad that they publish articles by people who know nothing about the thing they write about? Only to pose the question shows how ridiculous you are being. All Scottish newspapers only ever get people who know a lot about the subject to write articles about them. FACT That is why The Scotsman and The Herald and The Courier and The Press and Journal and The Daily Record and The Scottish Sun and the Sunday Post are the best newspapers in the world. FACT You ask anyone in the world about them and they will tell you that.

    and as for Indy's point about the court of public opinion. How do you answer that? It is people who decide what will happen not courts. FACT When did you ever see the court do something the people didn't want? Never. That's when.

  41. Indy, I think it's you that's behind the curve with this thread, if you care to read my earlier comments in context.

    "Because according to the court of public opinion - which I regretfully have to tell all the lawyers out there is the true supreme court as far as politicins are concerned - they had no choice."

    Oh yes, politicians are quite good at ignoring the law when it suits them. Which would be bad enough if they were following public opinion, but often they're following neither!

    And are you saying that the wants of politicians and public opinion usurps the legal rights of minorities, for example, Indy? I thought you were normally quite keen on the latter.

    Do as Indy says, not as Indy does?

  42. Groundskeeper Willie10 February 2012 at 11:44

    Surely the question isn't 'Does Holyrood have the legal authority to hold a referendum?' but rather 'Is there sufficient doubt about whether Holyrood has the legal authority to hold a referendum to allow an individual to mount a legal challenge thereby delaying any referendum by up to eighteen months?'

  43. Bobelix, R. Louis,

    A late response! I thoroughly sympathise with the argument made by those academics - but note their conditionals:

    "Contrary to the views of the UK Government and a number of influential commentators, on this blog and elsewhere, we believe that the legality of a referendum Bill passed under the Scotland Act as it currently stands is a more open question than has been generally acknowledged. In other words, we believe that a plausible case can be made that such a Bill would be lawful..."

    I'd entirely adopt this as an analysis of where we're at now, without a section 30 order. Even some of those who lean towards Jim Wallace's interpretation of the Scotland Act - such as law and scone blogger Love and Garbage - would endorse this view of the "inherent contestability" of the domestic law as is on the scope of Holyrood's powers, to borrow another phrase from Gavin Anderson's et al's piece.