tag:blogger.com,1999:blog-1638916042737526171.post4664460557237336120..comments2024-03-18T15:05:49.941+00:00Comments on Lallands Peat Worrier: Is the independence referendum legally competent?Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.comBlogger37125tag:blogger.com,1999:blog-1638916042737526171.post-68445650571870203632010-09-12T11:28:54.811+01:002010-09-12T11:28:54.811+01:00You would need to go into the legality of what the...You would need to go into the legality of what the difference is between an "indicative" or "advisory" referendum which is the terminology people use and the kind of referendum that established the Scottish Parliament. I don't know what the difference is but frankly I am content that all the parties think it's possible to hold one. There's also the book Scottish Independence: Legal and Constitutional Issues: A Practical Guide published by the Constitution Unit which has lots of analysis.<br /><br />And that is really the elephant in the room because I actually agree with them that we need 2 referendums. Don't want to throw another coal on the fire but that is the most interesting point as far as I am concerned.Indyhttps://www.blogger.com/profile/04383904151475839441noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-77222256001740710122010-09-11T15:48:50.292+01:002010-09-11T15:48:50.292+01:00The kind of ignoramus who talks about UK law is ha...The kind of ignoramus who talks about UK law is hardly likely to post on LPW's blog and I wasn't getting at you at all, L & G. And I don't at all disagree with you that the referendum may be outwith the pitiful vires of the Scottish Parliament as currently constituted. I imagine that was the intention of their reluctant framers. But holding a referendum isn't outwith the vires of the Scottish people, who are sovereign. This is a point, you will recall, that was accepted by the Feeble 50 when they signed the Claim of Right. They and their political successors and assigns require having their faces rubbed in that fact firmly and frequently. Still, I accept an elision. Lord President Cooper's remarks in MacCormick were to the effect that the Westmonster parliament was not entirely sovereign - which, as you say, the then Lord Advocate, James Clyde - like Lord Cooper, a Unionist - accepted. If it isn't, who is? The point accepted by the Feeble 50, and appealed to both in 1320, and when the Scots Convention decided to dethrone James VII in 1689 rather than adopt the English "abdication" fiction, was that sovereignty rested with the people, or the Community of the Realm. That has undoubtedly meant different things at different times, but we know what it means nowadays. And I can quite conceive of legal arguments to the effect that even if the people were sovereign, there is no way they can make that sovereignty felt. But would you like to be that judge, to tell the Scottish people that all the time they thought they were free and sovereign, they weren't? And wouldn't such a declaration hasten the end of the Union rather than strengthen it?Am Firinnnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-10881402826608193292010-09-10T21:51:21.673+01:002010-09-10T21:51:21.673+01:00I don't think anyone on here has spoken about ...I don't think anyone on here has spoken about UK law - as we have been discussing the applicability of Scots law to this Scottish problem. This has involved honest people having an honest debate about a topic that is crucial, but which has received little sustained argument or scrutiny - despite its importance. I am not sure how the proposition AM Firinn pronounces can be derived from MacCormick v Lord Advocate 1953 SC 396 (for those that can get access to the case reports - it's well worth a read and is published also in LOrd Cooper's Selected Papers). Lord President Cooper's speech in MacCormick merely questions the Diceyan approach to parliamentary sovereignty of Westminster and indicates that the principle of unlimited sovereignty does not reflect the Westminster position - given that the Treaty of Union established a new Parliament. Lord Cooper argued that certain fundamental and essential conditions in the Treaty of Union could not be repealed by Westminster (a point conceded by the Lord Advocate within the case). His obiter comments in the case are limited in this respect. Suggesting that the referendum bill may lie outwith the competence of the Scottish parliament is not an unreasonable legal position to take and is based on the wording of the Scotland Act as influenced by the parliamentary debates. It does not undermine (or indeed involve) MacCormick v Lord Advocate in any way. I am a supporter of the approach in MacCormick (as is implicit in the blog post LPW originally replied to - and as I had to explain to a sceptical commenter when LPW and my blog posts were reprinted on an English law blog).Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-81541034715812929782010-09-10T19:59:29.477+01:002010-09-10T19:59:29.477+01:00The Presiding Officer's judgment is not, as fa...The Presiding Officer's judgment is not, as far as I know, final. It is as subject to judicial review as any other decision made by a public authority, and there is nothing in s31 of the Scotland Act 1998 to suggest otherwise. It's not only the referendum's opponents who can have recourse to law. Having, one way or other, got the referendum into court, and given that there is no such thing as UK law, however often that empty phrase is bandied about by terminally stupid, Scots law would undoubtedly apply. And here we would get to test just exactly how robustly our courts would take Lord Cooper's words on sovereignty in MacCormick v Lord Advocate. All the arguments above are predicated on the sovereignty of the Westmonster parliament: but there is good legal authority to the effect that it isn't sovereign in this country, the people are. And how better for the people to exercise their sovereignty than by means of a referendum? I don't see how a Scottish Court - or the Supreme Court applying Scots Law - can strike down the referendum without striking down MacCormick on - let me see - no grounds at all.Am Firinnnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-68350987068938126082010-09-10T19:12:55.660+01:002010-09-10T19:12:55.660+01:00Ratzo,
The main problem from the nationalist lawy...Ratzo,<br /><br />The main problem from the nationalist lawyer's angle will be the caution of the presiding officer. These arguments can be made in Court and we might prevail. It is actually a very problematic institutional feature, in situations like this. Clear in-or-out judgements might be fine, but where competence is debateable, we're all thirled to one person's caution. The consequence of which must be that despite the arguability of the case, the PO becomes an unchecked agent of institutional conservatism, presuming in circumstances of uncertainty that proposed Bills are incompetent - and worse - not admitting public arguments about the issues involved.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-12103076514314280352010-09-10T09:39:57.667+01:002010-09-10T09:39:57.667+01:00Yes LoveandGarbage but the SNP is not talking abou...Yes LoveandGarbage but the SNP is not talking about a referendum which will decide if Scotland becomes independent or stays in the Union. We are going round in circles here. Everyone accepts that the Scottish Parliament does not have the power to declare independence and cannot hold a referendum which will of itself decide if Scotland becomes independent. Only Westminster can legislate for independence. You are arguing against a non-existent case.Indyhttps://www.blogger.com/profile/04383904151475839441noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-23835293573723666662010-09-09T21:09:55.226+01:002010-09-09T21:09:55.226+01:00L&G
I agree with LPW that you're onto some...L&G<br />I agree with LPW that you're onto something in respect of the legality of the proposed referendum but, also like LPW, I'm still unconvinced that sovereignty can be asserted over future contingents this way. <br /><br />Also, Sewel's position might seem to be perfectly clear, but is it really?<br /><br />Without wishing to appear trivially concerned with the nuances of terms, did Sewel not most likely mean by the term 'referendum' obvious UK precedents, such as 1973 in Northern Ireland, the UK-EEC referendum in 1975, and even the miserable affair of 1979 (when a majority 'yes' vote did not have a 'necessary' consequence).<br /><br />Those polls were structured to have unambiguous practical consequences. But that's not the case here. Everyone knows the proposed SNP referendum has no binding force and will not lead infallibly to anything at all.<br /><br />p.s. loved the Schrodinger's cat gambit, but does not the invocation of a splendid quantum explanation for something as mundane as an opinion poll rather weaken your point than strengthen it?ratzohttps://www.blogger.com/profile/17512152633620132970noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-42718323635273026802010-09-09T19:35:44.156+01:002010-09-09T19:35:44.156+01:00Don Q,
Where's that island I was promised? An...Don Q,<br /><br />Where's that island I was promised? And do you have feed for my donkey?<br /><br />Best, <br /><br />Sancho P<br /><br />(PS I am assuming you'll be relying on Lord S's wording, and the slightly different wording of the question in the consultation papers. The good Lord was merely giving an example for later commentators to extrapolate... ;-)<br /><br />Looking forward to your considered response.)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-6240463610178157992010-09-09T19:14:42.292+01:002010-09-09T19:14:42.292+01:00I meant to add, thanks for the Hansard reference I...I meant to add, thanks for the Hansard reference Indy - although I'm understandably less keen on the quotation Love and Garbage has unearthed from Lord Sewel the Hoose o' Lairds. Don't rest too comfortably on your winning reference, however, L&G. I'm awa' oot the noo, but I'll don my tin-plated Don Quixote costume and sally forth again tomorrow on why it is less conclusive than your post suggests!Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-39887606091619081762010-09-09T19:10:03.076+01:002010-09-09T19:10:03.076+01:00You may be right that the Herald's reported a ...You may be right that the Herald's reported a distorted version of that meeting, Indy. I couldn't say for sure and your information is plainly better than mine. However, that does not do away with the fact that there really <i>are</i> significant legal dubieties on the competence of the referendum Bill. For my money, with the application of eloquent legal argumentation and political will, such dubieties could be overcome. There is no question in my mind, however, that this is much less clear than we all <i>(including myself)</i> previously supposed.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-30578666931363931382010-09-09T14:31:40.567+01:002010-09-09T14:31:40.567+01:00Hansard is absolutely clear. The Parliament is not...Hansard is absolutely clear. The Parliament is not have the power to hold a referendum. See my discussion here: http://loveandgarbage.wordpress.com/2010/09/09/the-referendum-and-legality-the-parliamentary-debates/Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-62985646624228553442010-09-09T14:05:31.934+01:002010-09-09T14:05:31.934+01:00LLPW I am not sure what you are referring to. I w...LLPW I am not sure what you are referring to. I was suggesting that the item in the Herald story - which was cited by LoveandGarbage and which suggested that Alex Salmond had told MSPs that there was a legal issue with the wording of the referendum question - was second or third hand gossip. How could it be anything else? This was a parliamentary group away day. There were no journalists present. From what I have heard of the discussion the Herald got things a wee bit blurred.<br /><br />Regarding the passage of the Scotland Bill, my recollections are clearly blurred but nevertheless the issue of whether the Scottish Parliament was able to hold a referendum was discussed at the time the Bill was with the House of Commons and with the Hourse of Lords. There will be a record in Hansard. Presumably if any individual tried to challenge the competence of the Scottish Parliament to hold a referendum the intention of the legislators who drew up the Bill would have some bearing.Indyhttps://www.blogger.com/profile/04383904151475839441noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-50485077919742284842010-09-09T09:28:19.234+01:002010-09-09T09:28:19.234+01:00A good point Ratzo, and I think a weakness in any ...A good point Ratzo, and I think a weakness in any definition of "relating to a reserved matter" that posits such a broad, encompassing assessment of influence, impact and relation. <br /><br />To pop my advocate's wig back on, compare this to the formalistic simplicity of my argument that we simply examine the Bill's provisions on its face and ask - what is its lawful purpose, rather than speculate on future political possibilities and events outwith the immediate competence of any court to foretell. This seems to me to be a more reasonable question for a court to answer. Ironically, one of the qualities of Love and Garbage's argument - predicated significantly on a distinction between Scottish politics and Scottish parliamentary law - is that is has the effect of collapsing the former into the latter. <br /><br />I'm not disputing your points about the likely consequences of a 'yes' vote in such a referendum L&G, nor that its "purpose" on some level would be to "break up Britain". All I'm saying is that we cannot assume that the interpretation of legal competency by purpose and effect is transparently identifiable with general assessments of impact and influence. Indeed, due to the difficulty of such an endeavour, I'd argue that a Court has very good reasons to seize the narrower interpretation I propose and hold that such a referendum <i>is</i> a competent Act of the Scottish Parliament.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-89433180020599037222010-09-09T08:51:59.311+01:002010-09-09T08:51:59.311+01:00From a competence perspective I would suggest that...From a competence perspective I would suggest that the result of the referendum is like SChroedinger's cat - until observed it can be both positive or negative. In evaluating competence the adviser must assume both possibilities and advise accordingly. <br /><br />(AH, LPW, where else on the blogosphere other than here do you get literature, politics, law, culture, and quantum theory?)<br /><br />On the necessity issue are supporters of the referendum suggesting that a yes vote would not lead to independence (genuine query - not rhetorical flourish)Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-35946735097606909852010-09-09T00:23:01.638+01:002010-09-09T00:23:01.638+01:00Thanks L&G.
It is the degree of firmity inte...Thanks L&G. <br /><br />It is the degree of firmity intended by 'necessity' that is faintly bothersome. Does 'reasonable probability' (which seems to me to be the series of cause and consequence you've described as 'necessary'; and not only because previous 'yes' votes in Scottish referendums did not lead to the obvious intended outcomes) still carry it sufficiently out of the realm of metaphor to make it a definitive practical measure of the incompetence of the projected action?<br /><br />(I think this is just another way of putting the same question as LPW & Muddypaws).<br /><br />Also - have you (accidentally) implied that a referendum is however quite legal as long as the vote is no, because that has no effect on the role of Westminster as sovereign, in your definition, in respect of UK & Scottish constitutional legislation?ratzohttps://www.blogger.com/profile/17512152633620132970noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-89503584385152581202010-09-08T23:32:44.487+01:002010-09-08T23:32:44.487+01:00I've gathered my thoughts on competence into o...I've gathered my thoughts on competence into one coherent post here (given that my original post asserted without justifying) http://bit.ly/dp0CyLAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-89979710839916871412010-09-08T22:45:22.788+01:002010-09-08T22:45:22.788+01:00Ratzo,
While a referendum is purely advisory in l...Ratzo,<br /><br />While a referendum is purely advisory in legal theory I do not think any advocate of a referendum would argue that a yes vote would not lead to independence. If there is a yes vote then that triggers the move to independence (unless of course there is to be a second referendum once the negotiations are complete just to make sure - I do not know SNP policy on this). If the yes vote is the trigger for independence negotiations (and would be viewed as the justification for this and any decision on independence/breaking up the UK (* delete inapplicable based on political preference) then the advocates of a referendum must accept that it necessarily has an impact on the position of the UK Parliament (in that independence will mean that the UK PArliament can no longer legislate for Scotland). Additionally, the result of this vote - while theoretically advisory and not binding - will be the justification for the ending of the Union.<br /><br />So what does the reservation prohibit?<br /><br />Para 1 of Sch 5 to the Scotland Act 1998 prevents the Scottish parliament legislating on the following:<br /><br />"The following aspects of the constitution are reserved matters, that is—.<br />...<br />(b)the Union of the Kingdoms of Scotland and England,.<br />(c)the Parliament of the United Kingdom,"<br /><br />A positive referendum result affects both. To my mind - a referendum is then clearly reserved.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-64119759762246577712010-09-08T19:43:39.745+01:002010-09-08T19:43:39.745+01:00Secondly, however, I'm more disposed to sympat...Secondly, however, I'm more disposed to sympathise with Indy's position on the relationship between law and politics, and the possibility that former is influenced by the latter. With sufficient will, and particularly in the absence of a political discourse invoking the legal competence of the referendum, it is not beyond probability that such legal qualms might well be overridden and doubts put aside. L&G is right to emphasise the institutional barrier represented by the presiding officer. There is also the possibility of a subsequent legal challenge by an interested foe of the referendum project. <br /><br />Yet legal uncertainties can present political opportunities, after all, for those with brass neck who aren't over-scrupulous. If a putative future Bill negotiated all the political hurdles of being passed in Holyrood, it seems like a brave Court to knock it flat. That judicial bravery would manifest is not beyond possibility, of course, but it would be a tense piece of litigation.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-2520206590248223182010-09-08T19:33:08.252+01:002010-09-08T19:33:08.252+01:00Seems you've kept yourselves occupied while my...Seems you've kept yourselves occupied while my attention was elsewhere today!<br /><br />On Indy & L&G's exchanges on the civil service and the competency issue, there is a point that warrants emphasis. My own views track between the two positions you respectively elucidate which makes this a little tricky. I'll try my best to be clear. <br /><br />My own belief is that competency is certainly open to debate and question in law. This isn't, as I understand you're suggesting Indy, a matter which internal gossip might verify or falsify. Anyone with legal training and loose familiarity with the precedents can see with a little thought that any proposed independence referendum under the Scotland Act as it is currently drafted is much, much less clearly a lawful enterprise than is supposed. That is a good reason to question its competency.<br /><br />Indeed, as someone with a law degree and an interest in the topic, I'm rather embarrassed not to have thought about this in any depth before now. Accept the thought, at least for now, that Holyrood's competence to enact such a Bill is legally wobbly - but as I suggest - there are arguments in favour of such a competence. The Bill is important to the nationalist government. The civil service cannot give an authoritative negative answer. As a result, it seems entirely plausible to me that the governmental enthusiasm would mandate pressing on, despite the uncertainties on legality. After all, in the end they might win out. That doesn't require anything implausible, either of the government or their civil servants.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-61528364221174406062010-09-08T13:03:03.289+01:002010-09-08T13:03:03.289+01:00L&G
"...in reality a positive referendum ...L&G<br />"...in reality a positive referendum result will mean that the role of Parliament is necessarily affected."<br /><br />I'm tending to agree with your general line (not least with the memory of the blunt ruling on the BBC/SNP affair at the GE still fresh) but I wonder if you could be little more explicit with what you intend by 'role' and 'necessarily' in the quote above, given that these are decisive for this view.ratzohttps://www.blogger.com/profile/17512152633620132970noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-50485131723427085002010-09-08T13:00:54.352+01:002010-09-08T13:00:54.352+01:00The other thing I have to say is about the passage...The other thing I have to say is about the passage of the Scotland Act - and I apologise in advance because I can't remember all the deatils. But I do recall that when it went through the House of Commons Alex Salmond (who was an MP at the time of course) made sure with Donald Dewar that the Bill would allow for a consultative referendum. There was a big discussion about whether referendums could be binding or consultative and as I recall it turned out that all referendums held anywhere in the UK could only be consultative. Then when the Bill went through the House of Lords the SNP (which doesn't have peers) co-opted a group of peers, they were mainly hereditary peers, to act as the SNP Group during the passage of the Bill. Part of that was about making sure that the UK Govt didn't sneak something in to make it impossible for the Scottish Parliament to hold a referendum. As I say I really can't remember any of the details - I remember the chat about it because everyone thought it was quite funny that we had co-opted these hereditary peers to represent us. (They were quite willing to do it in the spirit of fair play though they weren't really committed nationalists). But if anyone is sufficiently dedicated I am sure they could trawl through Hansard to find the salient points or the SNP Whips Office at the House of Commons could maybe help.Indyhttps://www.blogger.com/profile/04383904151475839441noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-28147138217516511502010-09-08T12:46:45.549+01:002010-09-08T12:46:45.549+01:00Seriously Loveandgarbage civil servants will not g...Seriously Loveandgarbage civil servants will not go outside the boundaries that are set down for them. Remember the civil service is not devolved. It's part of the Home Civil Service i.e UK wide civil service. In that context the Scottish Government is effectively a department of the UK Government. So yes civil servants working for the Scottish Government owe their loyalty to their ministers but they are still UK civil servants not Scottish civil servants.<br /><br />That, I suggest, answers the point about whether the Bill is competent. You have no actual reason to believe that it is not, other than a very vague suggestion in the Herald. Even on the basis of the Herald report all that is suggested is that Alex Salmond told SNP MSPs that there were problems with "the wording of the referendum question." It did not suggest that the referendum itself was incompetent.<br /><br />In any case I have my own reasons for believing that the Herald story was more than a little blurred around the edges, as happens when you are repeating second or third hand gossip.Indyhttps://www.blogger.com/profile/04383904151475839441noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-87933065700632713122010-09-08T10:25:46.365+01:002010-09-08T10:25:46.365+01:00Indy,
It is not just a political question. Any bi...Indy,<br /><br />It is not just a political question. Any bill has to be accepted by the presiding officer's office. That office has to accept it is within competence. That is not a political decision. It is a legal decision. If the presiding officer's office is not satisfied that the bill is competent it will never get into Parliament to be debated.<br /><br />There are ways to deal with that - but they would require Westminster to assist with an order in Council at HOlyrood and Westminster to extend the powers of Holyrood. That might be a political outcome (and I indicated in my post - and LPW quotes - that an SNP majority (I think at either Westminster or majority government at Holyrood) will make a referendum inevitable because Westminster will allow it. But that is then at the control of third parties.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-60616851187586364992010-09-08T10:20:45.737+01:002010-09-08T10:20:45.737+01:00"Civil servants don't just do what they a..."Civil servants don't just do what they are told. If the SNP told civil servants to do something that the civil servants believed to be outwith their competence the civil servants would say no."<br /><br />And if the minister insists they will do it while noting their concerns. Advisers advise. Ministers decide.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-25618101800140844452010-09-08T10:14:51.841+01:002010-09-08T10:14:51.841+01:00Loveandgarbage - I am an SNP activist. I am not b...Loveandgarbage - I am an SNP activist. I am not bothered by dropping the Bill. It's clear now that there is no wiggle room to get it through so there's no point presenting it. <br /><br />I appreciate that lawyers will see this primarily as a legal issue but it's not. It's a political issue. It's a bit like people arguing about whether the Iraq war was legal or not. It doesn't actually matter because the decision to go to war was a political one and the reason Blair was able to do it was because he had the support of parliament, not because he was able to demonstrate that going to war was legal.<br /><br />Not that I am comparing a referendum on independence with the Iraq war but you know what I mean. We will be in a position to deliver a referendum when we have won the argument and got political support from other parties. At that point it will not matter if some legal-minded people think they can pick holes in some aspect of whether it is fully compliant with the Scotland Act.Indyhttps://www.blogger.com/profile/04383904151475839441noreply@blogger.com