tag:blogger.com,1999:blog-1638916042737526171.post7446479046373188724..comments2024-03-28T07:16:39.621+00:00Comments on Lallands Peat Worrier: On the serpentine logic of Michael Forsyth...Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.comBlogger15125tag:blogger.com,1999:blog-1638916042737526171.post-27168914030347201502011-09-23T18:40:03.527+01:002011-09-23T18:40:03.527+01:00Evening all,
I'm certainly not arguing that t...Evening all,<br /><br />I'm certainly not arguing that the law has to be seen in isolation from politics, from general public apprehensions of what powers and competencies a body like Holyrood ought - and is understood - to have. That said, as a matter of tactics, seeing the law as very much a means to an end, all I'm counselling is a less risky legal stratagem. I may feel that the Scottish Parliament ought to have the power to hold a referendum on independence. David Cameron seems to believe so too. However, we can't necessarily expect a judicial character to immediately gloss over the legal niceties and defer to Salmond or Cameron's constructions of Holyrood's powers. It is loopy to imagine that he - or any other UK Supreme Court Justice - would. And given how deeply the idea of parliamentary sovereignty is implanted in English constitutional thinking (and remember, an English-educated legal majority will sit on any challenge to the referendum's competence) we shouldn't expect them to go along with Peter's argument either.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-33921007438774932232011-09-21T10:41:23.485+01:002011-09-21T10:41:23.485+01:00Lallands,
Point taken about surrendering authorit...Lallands,<br /><br />Point taken about surrendering authority to Westminster.<br /><br />My genuine concern is that we, wee folk in Scotland, should be able to make our minds up about this absent interference from Westminster.<br /><br />Which appears to be a wish too far.<br /><br />Westminster cares about Scotland, and <b>will</b> have a say.<br /><br />Frankly, I find that annoying.<br /><br />I'd have thought that Unionists North of the Border are their only legitimate constituency. But that appears not to matter to the Westminster career politicians who grew from Scottish roots.<br /><br />That now take the ermine and sit in the House of Lords.<br /><br />It seems to me that the SNP are up against the same horde of weasels that sold us for English gold a long time ago.<br /><br />Plus cá change, etc...douglas clarkhttps://www.blogger.com/profile/11422060678908705962noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-50910095600750279542011-09-20T23:40:21.813+01:002011-09-20T23:40:21.813+01:00Lalland's: I have done a bit of research into ...Lalland's: I have done a bit of research into Lord Cooper's 1953 judgement and the Scottish 'Claim of Right' 1689 which remains in law and have come to the conclusion that as the 1689 Claim of Right is enshrined in Scots Law for 'all time' by the Treaty of Union and Lord Cooper made clear to the Lord Advocate that for 'all time' means exactly that: a point the Lord Advocate conceded. <br /><br />Lord Forsyth's position is informed by the Treaty of Vienna which allows for any nation signed up to any Treaty under duress or coercion to negate that treaty given the expressed will of the people.<br /><br />Reading the Treaty of Union the union is described as a political union between two nation states Scotland and England. Given that the 1689 Claim of Right reaffirms the sovereignty of the Scottish people combined with another part of Lord Cooper's learned judgement on the assumption of English constitutional practice by Westminster and that it has no right under the Treaty of Union to do so. You can begin to see where the Earl of Hell is coming from.<br /><br />To deny Scots the right to a referendum on negation of the Union Treaty is to claim that the Scottish people are no longer sovereign. This requires the repeal of the 1689 Claim of Right but to do so repudiates the Union Treaty as the sovereignty of the people of Scotland is protected for all time by the Treaty.<br /><br />The Crown can not act against the will of the sovereign people of Scotland as to do so breaks the agreement with which the Scottish people allow Liz and her successors to be on the Scots throne (1689 Claim of Right).<br /><br />All of sudden the constitutional assumptions of Westminster's supremacy are shattered because Westminster, in itself has never exercised any Scottish sovereignty except via the political fudge of the Scottish Grand Committee.<br /><br />The 1998 Scotland Act in effect removed this exercise of sovereignty from the Scottish Grand Committee once the Scottish Parliament was reconvened from its temporary suspension in March 1707.<br /><br />Under Scots Law and constitutional practice the people of Scotland lend their sovereignty to the Scottish Parliament in the first instance. To repudiate this requires the independence of Scots Law to be withdrawn which in turn renders the Treaty of Union void.<br /><br />Westminster can claim whatever powers it wishes but once the sovereign people of Scotland say 'get lost' Westminster has only one option - to get lost.<br /><br />In Scottish Law and constitutional practice I would argue that by voting an outright majority of SNP MSP's the sovereign people of Scotland have made a clear statement to Westminster of thus far and no further with any of your attempts at claw back of powers from Scotland. Poll after poll indicates the majority of the sovereign Scottish people want a federation of UK nation states to supplant the current UK Westminster Parliament: as that will require turkeys voting for Christmas I do not see that happening.<br /><br />Westminster stated that a vote for the SNP was a vote for Independence, prior to May 2011 thus they are hoist on their own constitutional petard. <br /><br />Wee Eck and the SNP are in a win/win position no matter how this ends up. Legal advice to HM Government at Westminster is they can not stop or interfere in Wee Eck's proposed referendum and have no rights or powers so to do.<br /><br />If you view it in this light, the Laird of Tunnocks attempts to stop the in rushing tide make at least a wee bit of sense (to him) as does the Earl of Hell's equivocation on the issue.Mad Jock McMadhttps://www.blogger.com/profile/17088238215251518226noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-29160843744110240272011-09-20T21:46:12.657+01:002011-09-20T21:46:12.657+01:00The Poll Tax issue in England was not settled in c...The Poll Tax issue in England was not settled in court. No matter how supreme. Not even a parlaimenrary majortity could uphold it.terrencehttps://www.blogger.com/profile/15075471706398555654noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-46900851777037644562011-09-20T14:56:02.808+01:002011-09-20T14:56:02.808+01:00Considering that the original Articles of union ha...Considering that the original Articles of union have been breached several times, most lately for where the supreme court sits. My understanding is that a new relationship built on the will of the people (Scottish in this instance) has evolved from the claim of right onwards. Hence when the Scotland Act reserved some powers like defence and foreign affairs etc. to Westminster and whatever devolved matters it choose to interfere with - Sewell motions not withstanding - politically, that peculiarly Scottish 'will of the people' idea has evolved to be on a par with that peculiarly English notion of 'Parliamentary sovereignty'.<br /><br />Now we know that Scots law has sided with England in the past over the McCormick case. However with the wind at our backs politically, and a new found belief in themselves perhaps just perhaps Scottish Judges might rule for our peculiarity over the English peculiarity. <br /><br />It is my view that Holyrood could hold a referendum on anything it likes but a positive result in an independence referendum would as it stands need to win a vote in Westminster.<br /><br />We know which way our Scottish Mp's will probably vote the few SNPers aside but which way would the non-Scots vote and would it be whipped? Thus like the Irish peace process Scotland's future could potentially be determined by a small grouping of MP's who have an interest in subverting the process. Much like Major held to ransom by the DUP in the 90's.<br /><br />Apologies if I have rambled.Tonynoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-55442569056407010282011-09-19T11:18:05.368+01:002011-09-19T11:18:05.368+01:00tris,,
Given the public employees who will be inv...<b>tris,</b>,<br /><br />Given the public employees who will be involved in the process of any referendum - returning officers and so on - I really can't see the Scottish Government going "sod it" and trying to press on regardless of their lack of mandate to do so. It'd start looking ludicrous. <br /><br />You also commented:<br /><br /><i>"They may have the power in law to stop us, rather like the Queen has the right to sack her UK prime minister and prorogue her UK parliament but as much as it's unlikely that the Queen would do that, it's unlikely that the UK government would do anything about our referendum."</i><br /><br />I agree with you on that. I can't imagine the UK Government taking out legal action to prevent a referendum. That'd be politically scandalous, and contrary to their own declarations on the subject. There's a catch, however - a big one. Although I only mention it in passing in this piece, elsewhere I have emphasised that the folk who can potentially challenge the independence referendum Act in the courts are not limited to the UK Government. Any cash-laden Unionist punter, bitterly opposed to any referendum, could do so. That the UK Government doesn't object does not mean that the laws on the books have altered one jot. And crucially, such a challenge is likely to be made (if it is made at all) before the referendum takes place, after Holyrood has passed the legislation authorising it. Like the ongoing insurers' challenge to the Scottish Parliament's pleural plaques legislation, such legal interventions can take an age to resolve. Consider that the Damages (Asbestos-related Conditions) (Scotland) Act was passed in 2009 - and is <i>still</i> not in force, as we await the UK Supreme Court's judgment on its legislative competence.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-75751432751674477642011-09-19T11:09:35.629+01:002011-09-19T11:09:35.629+01:00R Louis,
I'm delighted to hear it! My disquis...<b>R Louis</b>,<br /><br />I'm delighted to hear it! My disquisitions of legal topics are aimed at the interested, politically-minded layman, rather than the queer cohort of process-servers and pettifoggers. <br /><br />On your point, Lord Cooper's comments in that case are of interest, and unfortunately, generally neglected in broader UK constitutional law. I don't disagree that there is a significant political content to this. For example, if a Court did hold independence referendum authorising legislation from the Scottish Parliament to be beyond its powers - there would be a clear political pressure on Westminster to abide by its word, and authorise the process. My concern is that by failing to take the possibility of a legal challenge seriously - we are courting amazing risks, firstly in terms of the timing. Folk often observe that canny Salmond will pick the time to suit himself best. Any legal intervention would potentially - very likely - disrupt that timetable. If the Scottish Government lost in court, what would Westminster do? I, for one, would rather we avoided all of these perils, by simply clarifying in the Scotland Bill that the reservations of Schedule 5 of the Scotland Act doesn't apply to an independence referendum.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-68679086502804257022011-09-19T11:03:36.939+01:002011-09-19T11:03:36.939+01:00Stevie,
I don't believe that, honestly. I can...<b>Stevie</b>,<br /><br />I don't believe that, honestly. I can't see any way politically for Westminster politicians to deny a referendum vote. I do see ways in which the structure of the laws on the devolved settlement - and their adjudication by the UK Supreme Court - may very likely do so. And your point about mere technicalities isn't convincing. If the Court holds the authorising legislation from Holyrood to be ultra vires, there won't be any referendum, and thus, no possibility of a "yes" vote.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-76493888929794856402011-09-19T11:03:24.917+01:002011-09-19T11:03:24.917+01:00douglas clark,
I suspect Stevie's explanation...<b>douglas clark,</b><br /><br />I suspect Stevie's explanation is at least approaching the truth of it. It would be potentially politically embarrassing for the SNP to be conceding - against every past observation on the topic - that Holyrood's legal competence in this area was in any doubt. That said, one could argue that Forsyth has afforded them some political cover with this amendment - and they could conceivably introduce an amendment, justified in terms of clearly seeing off the villainous Lord Forsyth. That said, I'm still perplexed why they've avoided doing it so far. Given the balance of risk - potential short term, technical embarrassment vs. the whole referendum being derailed by legal proceedings, with implications for its timing, which is strategically important - their inactivity on this totally bemuses me. What's worse is, if this was challenged successfully, we might envisage Westminster legislation being advanced to permit a referendum. Who knows what jiggery-pokery might attach to that, depending on how brave they are feeling.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-28671947700893220342011-09-18T23:50:16.105+01:002011-09-18T23:50:16.105+01:00Fascinating post, as usual.
I, like R Louis, am n...Fascinating post, as usual.<br /><br />I, like R Louis, am no lawyer, but as I was reading the post, I kept wondering...what would they do if we held a referendum, legal or not?<br /><br />Short of sending in the troops, or Mr Alexander withholding yet more of our money, I can't see that there is anything that they could do.<br /><br />They may have the power in law to stop us, rather like the Queen has the right to sack her UK prime minister and prorogue her UK parliament but as much as it's unlikely that the Queen would do that, it's unlikely that the UK government would do anything about our referendum.<br /><br />And if this dubiously legal referendum were held and shown to give a majority for independence, is it likely that the UK government would continue to say no?<br /><br />They could argue the legal incompetence of the poll, but unless they could show that it was flawed by virtue of something that cast serious doubt on its veracity, surely they would be mad not to allow it.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-38430791258304371522011-09-18T17:10:55.506+01:002011-09-18T17:10:55.506+01:00Dear Mr Lallands,
I love your blog - and I'm ...Dear Mr Lallands,<br /><br />I love your blog - and I'm not even a lawyer.<br /><br />That aside, in reference to this point over the competence of the Scottish Parliament to do anything, but specifically in this case to hold 'THE' referendum, I started thinking that perhaps such matters of ultra vires (with my limited non legal understanding) in relation to a Parliament might have been considered before. It has.<br /><br />In McCormick Vs. Lord Advocate, 1953<br /><br />Lord Cooper states, in relation to the ability of Wesminster to legislate beyond its competence related to the union treaty;<br /><br />quote “To put the matter in another way, it is of little avail to ask whether the Parliament of Great Britain "can" do this thing or that, without going on to inquire who can stop them if they do. Any person "can" repudiate his solemn engagement but he cannot normally do so with impunity. Only two answers have been suggested to this corollary to the main question. The first is the exceedingly cynical answer implied by Dicey (Law of the Constitution, (9th ed.) p. 82) in the statement that "it would be rash of the Imperial Parliament to abolish the Scotch law courts, and assimilate the law of Scotland to that of England. But no one can feel sure at what point Scottish resistance to such a change would become serious." The other answer was that nowadays there may be room for the invocation of an "advisory opinion" from the International Court of Justice.”<br /><br />Could the same argument not be made for ANY parliament, including the Scottish Parliament, specifically in relation to the constraints of the Scotland act? Ultimately, aside from sending in troops, it is a theoretical argument, as it will in the end depend which side of the argument can carry the people of Scotland with it. It in many ways ceases to become a legal argument, and becomes almost exclusively a political argument. One parliament Vs. another parliament. In essence, there ceases to be a conclusive right/wrong perspective on what is legally competent.<br /><br />Now, perhaps I have mis-interpreted what Lord Cooper said, so I could be wrong, and I’d welcome your thoughts on that point.R Louisnoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-55954241479382003652011-09-18T15:58:22.975+01:002011-09-18T15:58:22.975+01:00Quite galling to see these unelected buffoons in t...Quite galling to see these unelected buffoons in the HoL pontificating on Scotland's future while trousering £300 a day plus expenses. And many a fine lunch as well I'd wager.<br />Foulke's looks no stranger to the desserts trolley.Georgenoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-87476996996303002152011-09-18T14:57:26.587+01:002011-09-18T14:57:26.587+01:00I don't think the SNP should table such an amm...I don't think the SNP should table such an ammendment as it would validate the Brit nats' right to say 'No, you can't hold a referendum'.<br /><br />Moreover, legally is one thing - a technicality at the end of the day if a YES vote is achieved.<br /><br />The Scotland bill is now junk and as such requires to be rejected AND it required to be rejected once the Wesminsterites started clawing back powers such as planning permission allowing the Brit nats to build nuke power stations and base more nuke subs in Scotland.<br /><br />Salmond should press for the referendum next May.Steviehttps://www.blogger.com/profile/18226832161404154663noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-62664207445708175902011-09-18T14:12:08.206+01:002011-09-18T14:12:08.206+01:00Ah! Alas the innevitability of political and const...Ah! Alas the innevitability of political and constitutional law shenanigans - from all parties - as they fight their corner and as the stake are high.<br /><br />One parliamment sovereign, the other parliament seeking to increase its powers.<br /><br />Not always edifying as all the protagonists play the game.GHmltnhttps://www.blogger.com/profile/08420475365803049630noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-5543457256024144932011-09-18T13:59:09.816+01:002011-09-18T13:59:09.816+01:00For my part, I am still mystified why SNP MPs have...<i>For my part, I am still mystified why SNP MPs have not tabled the inverse of Forsyth's amendment, putting it beyond doubt that the holding of a referendum on whether Scotland should become independent from the rest of the United Kingdom is within the legislative competence of the Scottish Parliament.</i><br /><br />I'd have thought so too. See politicians? They do my nut in.douglas clarkhttps://www.blogger.com/profile/11422060678908705962noreply@blogger.com