Monday, 15 March 2021

How To Litigate Scotland's Right to Hold A Secession Referendum (and lose your mind and dignity)

There's a widespread and growing belief that independence can be won in the courts rather than through politics. Meanwhile, conspiracy theories worthy of QAnon swirl around undermining the perceived integrity of the Scottish and UK court systems.   Here's an example:
 
 


If independence cannot be be won by politics and the UK court system is considered to be systemically biased against independence then it's natural to look to international courts for a solution. 
 
 And yay we verily end up here:

 
and here:
 
If you used to follow this blog then you'll know that there is already a lengthy and tedious post on the topic of Scotland's right to hold a secession referendum.  However, if people on the internet keep getting it wrong, then I'll keep trying to right that wrong.  That's right, this post is going to be another tedious delve into Scotlands right to hold a secession referendum.

Let's start with Professor Marc Weller's statement. Actually, before we get there let's first note that if anyone is thinking of misappropriating statements from prominent constitutional experts, it's a good idea to spell their name correctly.  With that out of the way let's re-read what he said.  Professor Weller merely said that a secession referendum would be compliant with international law.  We know that to be the case because Scotland already had a secession referendum in 2014 and we never saw any of the Better Together crew attempt to litigate it at the International Court of Justice.  Professor Weller did not say that secession referendums are a protected right in international law and he did not say that any protected right in international law would automatically take primacy over UK domestic law.   He did not say any of that because that would have been entirely false and quite embarassing for the holder of the Chair of International Law and International Constitutional Studies at the University of Cambridge. 
 
So what does international law have to say about self-determination?  If we are to believe indy twitter then we are also to believe that Scotland derives a legal right to self-determination from the UN's founding charter.  Let's have a look at what it says:

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
There's not much detail here, is there? It's actually quite confusing because it introduces a lot of concepts yet defines none. What happens if the self-determination of peoples leads to unfriendly relations between nations? Do the rights of peoples take primacy over the rights of nations?  Which principles might make that decision? What is self-determination?  Does it mean a secession referendum backed by primary legislation? Or does it mean something else?  What are "appropriate meaures"?  Who decides if a measure is appropriate or not?  This is a statement of intent for a fledgling institution rather than the basis of international law.  We cannot infer anything about Scotland's right to a secession referendum from the founding charter of the UN.
 
If the UN's founding charter has no clues perhaps we can look at some other communications from the UN.  In 1960, the UN published the Declaration on the Granting of Independence to Colonial Countries and Peoples.  When I first blogged about this I noted that this is a rather confusing document because it uses terms like "peoples" and "territories" interchangably and I was left scratching my head about whether self-determination was primarily about peoples or territories.  Perhaps it was written this way to give it the broadest political force.  To be honest, it doesn't matter because Scotland is objectively (and legally) not a colony so it would be foolish to look for clues about rights to secession referendums in lengthy texts about colonial countries and peoples. 
 
By 1970 the world was a very different place: decolonization was largely complete and worries about Soviet power came to dominate international thought. The UN responded by releasing the
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nation.   Similar to the 1960 declaration on decolonisation, the 1970 declaration on friendly relations contains a section devoted to self-determination.  Once again, it repeats the hazy use of technical terms.  However, for the first time it sets out a strict test for the right to self-determination:
"Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour."
A summary is that the territorial integrity of UN member states takes precedence over rights to self-determination except in cases where representation is denied and denied on the basis of race, creed or colour. Now, Scotland is not denied representation and it is certainly not denied it on the basis of race, creed or colour.  Our complaint is entirely about the quality and geography of representation rather than the quantity. Even though we haven't yet defined self-determination we can be quite sure we do not have a protected right to it in international law in any way we might want it to mean.  Should we be surprised by any of this?  I don't think so.   After all, who would join an institution hell-bent on destroying its own membership?  This was neatly summarised by Professor Jon Van Dyke in 1970:
 
 “…the United Nations would be in an extremely difficult position if it were to interpret the right of self-determination in such a way as to invite or justify attacks on the territorial integrity of its own members”.

All we've learnt so far is that Scotland has no protected right to self-determination in international law in the way we might hope but we still don't haven't defined terms.  What does self-determination mean anyway?  Well, if you start reading about self-determination you quickly learn that it comes in two flavours: internal and external. Here's a neat summary of the principles involved:

[The] idea of self-determination was a complex of ideas rather than a single concept. Thus the principle of internal self-determination, or self-determination on the national level, should be distinguished from that of external self-determination, or self-determination on the international level. The former was the right of a nation, already constituted as a State, to choose its form of government and to determine the policy it meant to pursue. The latter was the right of a group which considered itself a nation to form a State of its own.

I hope it's clear by now that the process of decolonisation in the 1960s was a process of external self-determination.   Nations like Kenya were not sovereign states because they were ruled by a colonial power that purposefully denied them representation.  The process of external self-determination allowed Kenya to become a sovereign state. Internal self-determination, on the other hand, is about the rights to representation within an already sovereign state. 

Where does Scotland fit into this?   Many would argue that Scotland is a nation that wishes "to form a State of its own" and therefore has a protected right in international law to external self-determination.  There is an insurmountable problem with this agument.  The problem is that self-determination for Scotland, in the sense that indy supporters wish it to mean, is concerned with redrawing the territorial boundary of  a UN member state. To claim that right Scotland would need to demonstrate that it is denied representation on the basis of race, creed or colour. Despite hot-headed bloggers who enthusiastically aver that Scotland is a de facto colony, this is simply not true.  Scotland is not denied representation and it is certainly not denied it on the basis of race, creed or colour. 
 
If Scotland cannot meet the conditions for a protected right to external self-determination then we are left with a protected right to internal self-determination.  This is not nothing.  If you don't believe me then imagine a world in which we didn't get to vote.  Not only does Scotland get to choose its representatives at Westminster but it gets to choose even more representatives at Holyrood. In fact,  Holyrood is a perfect expression of internal self-determination.  Anyone litigating the right to internal self-determination would quickly find that they already have the prize they're seeking.  

There's another twist to the tale. Let's imagine for a second that Scotland did have the right to external self-determination in international law and that explicitly meant a right to hold a secession referendum. Does that bring us any nearer to a referendum?  No, it doesn't, primarily because the UK operates a dualist legal system.  This means that it considers the UK court system separate from international courts like the European Court of Human Rights and the International Court of Justice.  As a consequence, rulings from international courts have no effect in UK domestic law. Another way of expressing this is that the source of all law in the UK is Westminster.  Any ruling from an international court must first be written into UK domestic law as legislative text and then passed by Westminster. This naturally all takes time and it would be perfectly normal for some years to pass.  If the UK government wished to sit on its hands in the hope that the SNP eventually lose their Holyrood majority that would certainly be an attractive option. 

What have we learnt?  
  • Countries like Scotland have a protected right to internal self-determination in international law but that is a right already enjoyed by countries like Scotland.  
  • Countries like Scotland do not have a protected right to hold a secession referendum in international law.
  • A victory in an international court does not mean very much if you're in a hurry. 
  • Banging on about litigating a right to hold a secession referendum is a gigantic waste of time that makes everyone look foolish. 
  • Professor Marc Weller, not Mark Weller.

Over and out,

Terry

PS The Canadian Supreme Court considered the right of self-determination of Quebec with regard to international law.  It concluded that such rights were limited to cases of colonial rule and foreign occupation.  This matches the strict test outlined in the UN's declaration on friendly relations.

PPS I'm fed up with futile litigation and threats of futile litigation.  Politics determines law but it is rare for law to determine politics. If Martin Keatings had understood this a bit better he could have returned most of the £250k that he crowdfunded.

PPPS EU law had primacy over UK law for the duration of the UK's membership of the EU but this was a consequence of a direct instruction by Westminster to the UK's court system in the European Communities Act 1972. In the event that there was a collision between UK and EU law, UK courts were to consider EU law as having primacy. This provision has never been replicated by the UK.

PPPPS Article 2(4) of the UN's founding charter contains provisions that protects the territorial integrity of its member states. The tension summarised by Professor Van Dyke back in 1970 was there all along.  If you see someone post something about Article 1(2) ask them how they feel about Article 2(4) and whether self-determination might be a bit more complicated than they think it is.

PPPPPS It is deeply offensive to refer to Scotland as a colony.  After all, Scotland eagerly participated in the British Empire and profited handsomely from its role as coloniser.  Scotland needs to face up to its violent past and stop playing the victim.


 

Thursday, 1 October 2020

ISP Report Card

 
I'm sure everyone is aware that there are several new independence parties hoping to return some MSPs on the list vote at the next Holyrood election in 2021. One of these, the ISP (Independence for Scotland Party), recently made the news because one of its founders published a video with some poorly judged comments about Donald Trump and the Black Lives Matter campaign. Given their newsworthiness, I decided to take a look at their policies to try to work out if this is a credible party worthy of a vote. All of the ISP's policies are published here. As you can see, there's not much detail or breadth but this just makes my review that bit easier.


The ISP will look to renew trading ties with Europe by joining the European Free Trade Association (EFTA) as an initial step. We will also look at the merits of joining the Nordic Council, which has Scandinavian member states with a similar climate and economic profile to ourselves.

 

Let's start with their policy on Europe. Their policy on Europe is to join EFTA "as an initial step". The wording here communicates the idea that, as of today,  they only advocate that first step and no other steps. This rules out joining the EEA or entering into an EU Cooperation Agreement because they both require more steps. It also rules out any misguided attempt to replicate Switzerland's patchwork of bilaterals. This is an odd choice. It's an odd choice because EFTA doesn't do very much on its own. Back in the 1960s it was very much the alternative to the EU, offering a much looser arrangement than the EU's long-term goal of ever closer integration. Fast forward to the late 1980s, however, and almost everyone had left to join the EU. After the Maastricht treaty came into force, EFTA just wasn't enough any more. Norway, Iceland and Liechtenstein became full members of the EU Internal Market by signing the EEA agreement. This uses EFTA institutions for governance and enforcement of the EU Internal Market for non-EU countries. Switzerland, on the other hand, opted for a complex patchwork of inter-linked bilateral agreements. There is no single member of EFTA that considers it sufficient for their needs. Despite this, it will be more than enough for Scotland?

Things get weirder with the ISP's pledge to consider joining the Nordic Council. The Nordic Council is a historic cooperation that today focuses on the promotion of Nordic languages. It's working languages are Finnish, Icelandic, Norwegian, Swedish and Danish. Why would Scotland join this? What exactly is our interest in Nordic languages? Answers on a postcard to Victoria Johnson the remaining members of the executive.


The ISP believes that certain issues should always be a matter for the individual, even if we disagree with them. As such, we will not compel elected members on votes pertaining to faith or conscience.



I think it's time to address the reasons the ISP grabbed my attention. One of their founders posted a video with comments that proved unpopular with the rest of the party. According to party communications, she departed some weeks ago. Despite this, she is still listed as an office holder on their website. Well done, everyone involved. Now, this post is about policy rather than politics so I started to wonder why she was forced to quit given that it is party policy to allow members to speak out on "certain matters" of conscience. It strikes me that nothing said by Victoria Johnson violates any policy published on their website. It appears to be the case that somebody, somewhere arbitrarily decided that the US election could not be categorised as "certain matters". This raises all sorts of questions about party democracy and process because it feels like she was hounded out by an angry mob on social media rather than because she violated any particular party policy. It's perfectly possible to be uncomfortable with Victoria Johnson's comments and with the way the ISP responded.

 

Once elected, the first action taken by the ISP in the Scottish parliament will be to call a vote on proceeding with an independence referendum. Our instruction to the Scottish government will be to hold a referendum on the question ‘Should Scotland be an Independent Country?’ at the earliest date possible and within the life of the new Parliament.

I would guess the policy that attracts many to the ISP is their pledge to have an indy ref come hell or high water. If you've read any of my recent posts you won't need reminded that this comes with unsolved political challenges. The key point here is that it is inconsistent to believe that Westminster will refuse a S30 but to simultaneously believe that it will negotiate independence in good faith without a prior political commitment to recognise the result of a successful indy referendum. The only way out of this conundrum is UDI. If you've read any of my recent posts you won't need reminded that UDI is a challenge to democracy itself. If you approach their policy statement hoping for more details around their strategy, you'll be as disappointed as I was.

The ISP believes that trans people, like all other groups in society should be free to dress, live and love how they please. However, we oppose self ID on the grounds that it does not add anything to the rights that trans people currently enjoy and the legislation, as it stands will severely affect sex based women’s rights. We will oppose Self ID on that principle.

 The ISP certainly do have a policy on the Gender Recognition Act. To be honest, I'm utterly relaxed about the GRA being implemented or amended or scrapped. I don't really care. I have never once had a conversation about the GRA or overheard one in real life. Beyond the social media warriors yelling "terf" and "transphobe" at each other, this is neither a vote winner nor a vote loser. Of all their policies, however, this is the one that is most clearly specified. There is no ambiguity here at all and I don't need any more details to understand their intent. This is interesting in itself because the ISP has a healthy twitter following of people who believe the SNP are full of woke careerists more interested in non-binary identity politics than they are in independence. Given their paucity of policy breadth and detail on display here, it just feels odd that a policy centred on gender identity is the one that is the most detailed. It all feels a bit "culture war". What do you think?

What have we learnt? Beyond the GRA, the ISP don't really have any detailed policies as of yet. It's hard to say if their policy on Europe is just some popular buzzwords plucked from the ether or if rejecting EU integration is a deliberate ploy. The weird Nordic Council plan makes me think they never really thought much about their policy. On the other hand, there are some extremely popular indy bloggers out there who are both anti-EU and anti-GRA. Is the whole thing just a placeholder written in a hurry or an early advancement of the culture war? I don't know. I do know it's early days but I expected better in terms of breadth and depth. None of this gives the impression of a party serious about process or policy. They'll need to get better at both if they hope to operate at the scale required to win seats.

Monday, 7 September 2020

State of (Unilateral) Independence

 

In my last post, I pointed out that Westminster consent to implement a Yes vote can either be gained before an indy referendum or after an indy referendum.  I also tried to point out that the order in which consent is gained has a profound influence on the effect of the referendum because it changes the popular understanding of its constitutional significance. Holding a referendum without a prior commitment to implement the result has the potential to make the referendum more an exercise in sampling opinion and less a decision-making event. If the referendum has the flavour of an opinion sampling exercise there are no guarantees that Westminster will consent post hoc to give effect to the referendum with the necessary legislative amendments to the UK constitution. Now, this argument instantly led to all sorts of accusations and ad hominems, which I will not repeat here. A polite summary is that this is a defeatist argument and we don't need Westminster. This is logically true: independence can be achieved bilterally or unilaterally. Scotland could just unilaterally declare its independence. Why don't we just go ahead and do that? In this post, I'm going to argue that UDI is an impractical path to independence and we should all forget about it.

Who exactly in Scotland could declare independence?  The answer to that is literally anyone who can write a short text and publish it somewhere. If they can get some friends to sign it, all the better. If Craig Murray and Gareth Wardell wrote a short text declaring independence and published it on their blogs, would Scotland be independent? I don't think they'd get very far because most people in Scotland don't really know who they are and it's doubtful the public would consider that they have any authority. I mean, they're just two humans with a blog and an appetite for polemic.  They don't have a government or a parliament and they wouldn't be unable to exert control over the police or the fire service or local authorities: literally nobody would recognise them as the source of law in Scotland. What if they said they had formed a parliament in Craig Murray's basement and appointed Stuart Campbell as Minister of Non-Binary Affairs? I'm sure we can all agree this isn't going to fly.

Ok, we've had our fun making fun of more successful bloggers so let's get back to serious chat. Which institution is most likely to be able to gather popular consent for their declaration of independence? I would guess the Scottish Parliament is the only answer.  In practice, any UDI would surely begin with a political statement from the Scottish Parliament. This would require some kind of vote in parlaiment with a majority outcome for UDI. I don't imagine the current Scottish government entertaining this idea and I certainly don't see the Scottish parliament voting for it because it is "stuffed full of dull SNP careerists more interested in their pension plan than independence".  UDI has fallen at the first practical hurdle. There's an obvious conundrum here:  the people expressing the loudest support for UDI actually depend on the much maligned "dull careerists" of the SNP to suddenly behave like wild and crazy mavericks.

What would happen if the Scottish parliament was indeed full of indy mavericks itching for UDI?  What would they need to do?  The first thing they would need to do is to make Holyrood sovereign by issuing emergency legislation for all reserved matters. All of the law sourced at Westminster would now need Holyrood as its source. This is understandably complex but let's just imagine that it all got done and that the indy mavericks held their nerve to vote for every single legislative act introduced by the Scottish government. Domestically, at least, Scotland is now divorced from the UK.  What happens now?  How does it all work in practice?

Let's imagine you work as a senior civil servant and your responsibility is to ensure that tax raised in Scotland ends up in the UK Treasury.  This system has to stop.  All of that tax has to now be made available to the Scottish government. To this end, an instruction lands on your desk to perform a specific action that will alter the money transfer. Meanwhile, you have implicit instructions in your employment contract that tell you not to alter the money transfer.  What we have here is a tension - not implementing the instruction will get you sacked but implementing it will be considered an act of larceny by rUK.  Which of the two authorities should be considered as the true authority?  This tension is replicated for customs officers at Glasgow Airport, nuclear regulators, patent clerks, judges, pharmaceutical trials. It is a long list. If government is to be by consent then how is the consent of civic and state institutions and everyone working in them guaranteed?  How is public consent guaranteed?  Answers on a postcard...

We've just looked at UDI within Scotland so far but let's widen our scope to the UK.  It's an objective fact that Scotland is now a contested territory:  the Act of Union remains forceful but simultaneously it is not forceful.  To stop being a contested territory it is necessary for the UK to repeal and amend the legislation that maintains Scotland as a constituent part of the UK. What would actually happen? I honestly don't know. Maybe the UK government would just accept the situation, recognise Scotland as an independent state and ask the House of Commons to agree to all the necessary changes. That feels like a humiliating option for the UK. On the other hand, they might argue that they continue to recognise the status quo.

A popular myth on social media is that UDI is a protected right in international law. The source of this myth is Craig Murray but he's not really to blame for the way he has been misunderstood and misrepresented.  The myth arises from a case at the International Court of Justice of the United Nations concerning Kosovo's independence.  The ICJ was asked to rule on the lawfulness of Kosovo's UDI. It ruled that there was nothing in international law that makes UDI unlawful.  This is absolutely not the same as UDI being a protected right: it merely says that the lawfulness of UDI is a matter for domestic law and not a matter for international law. I think we can all agree that UDI presents plenty of opportunities for accusations of unlawfulness.  If you believe the myth then you believe that a higher law takes precedence over domestic law and that accusations of unlawfulness have no force. This is important because it changes the way that Scotland would be internationally recognised as a sovereign nation. If you believe the myth then you also believe that countries like Germany would recognise Scotland because it would work on the premise that international law usurps UK domestic law. This is entirely false. Germany has no compulsion to recognise Scotland as a sovereign state.

For Germany to recognise Scotland as a sovereign state in practice it has to amend its national law to add Scotland to all sorts of governmental lists. For example, it would need to recognise that Scotland upholds international aviation standards to allow Lufthansa to fly to or from Scotland. At some point, it would need to recognise Scottish passports and money and data and chemicals and pharmaceutical products.  If you're Scottish and you work in Germany you might find yourself in all sorts of trouble if you try to claim residence rights based on a Scottish passport. If you live in Scotland and you need medical isotopes to be imported under international license you might also find yourself in all sorts of trouble.  There are likely thousands of pressure points like this. If the German government are to bother with the legislative effort it has to be worth it.  A summary of their legislative dilemma is that the upside of action has to be larger than the downside of inaction.  The choice they make is entirely political.

It is just not in Germany's interests to recognise an independent Scotland if its key office holders are fugitives from UK law. They'll be under pressure from both the UK and any number of close allies with their own internal secession movements to recognise the UK as it was. It's an objective fact that stable democracies with functioning state and civic institutions do not reward unlawfulness and constitutional chaos.  At least in the short term, Scotland would not achieve the status of recognised sovereign state by key institutions. That means we don't join the EU or the UN or EFTA or the Council of Europe.  It might mean that our currency cannot be traded on international markets because nobody can guarantee that international standards will be upheld. In that kind of environemnt, money can only flow out of Scotland and never in because everyone will want to reduce their risk.  We might not be able to travel anywhere, senior office holders might be subject to international arrest warrants, exports and imports will be severely disrupted. The whole country will be in a Brexity mess of its own making.

UDI is impractical to sustain. It's hard to believe that any government could survive the kinds of shocks described above, particularly if it was all done without consent.  It's worth noting that none of this requires any action by the UK government.  All they have to do is sit back and watch it all unravel. Of course, UDI is perfectly sustainable if we simultaneously abandon the principle of government by consent. I guess we shouldn't be surprised that undemocratic action leads to yet more undemocratic actions.

If the unilateral path is impractical then logical dictates that we ought to explore the bilateral option some more. Logic also dictates that the bilateral option requires Westminster consent, either before or after a referendum.  If you advocate gaining that consent after a successful indy ref then please demonstrate how you're going to achieve your goal.  If, on the other hand, you still support UDI then please let me know which 20th century dictator is your favourite because I'd like to purchase the appropriate uniform before the rush. 

Over and out,

Terry

PS I did not address the frequently used "legal" argument that "the people of Scotland are sovereign".  This is  the argument most commonly used to explain away the need for bilateral agreement. First, I would never advocate employing a legal argument to solve a political problem.  Second, I'm thinking of setting up a cash prize competition for anyone who can point to any statute or common law that protects the unique sovereignty of the Scottish people.  Third, what does it even mean and how is it relevant?

PPS Kosovo is a frequent visitor to indy twitter but it is not a shining example.  After many years, it has achieved only a patchwork of recognition.  International politics being what it it is today, Kosov is now experiencing the process of derecogntion with Russia and states allied to it actively working against Kosovo's recognition. 

PPPS We know exactly what happened to Catalonia.  I just don't understand how any rational human could advocate repeating their many, many amateurish mistakes.


Wednesday, 19 August 2020

The Sound of the Crowdfunder

I'm sure everyone is aware of an ongoing crowdfunder to determine the competence of the Scottish government to hold a referendum on Scottish independence. There's a lot of confusion about the case but in this instance it is the litigants themselves who are the source of most of it. I think it's worth exploring what it's all about and why there are legitimate concerns about what they are doing and how they are doing it.


If you look at the crowdjustice website you'll see that there have been two distinct campaigns on related topics.  This already sets off very loud alarm bells because winning any one of these negates the value of litigating the other. Luckily(??!!!), only one of these cases has any chance of success.  In chronological order, the first case aims to sue the UK government in order to compel it to issue a S30 order.  Now, introducing primary legislation to the UK Parliament is a power held uniquely by the government as a consequence of its majority. Governments cannot be legally compelled to introduce legislation but even if they could parliament could not be legally compelled to vote for it. The principle of parliamentary sovereignty, after all, is well stablished. I'm afraid to say that this original crowdfunder betrays a complete lack of understanding of the UK's constitution. Soliciting for donations on this premise is on the verge of negligence. For the interest of doubt, I was being polite in the last sentence. 

Why is there a second case?  Well, it seems that after asking their legal counsel a question about compelling the UK government to begin the S30 process, Forward As One received a reply to a completely different question about devolved competences on legislating for referendums.  This reply forms the basis of their second crowdfunding campaign. It appears, however, that Forward As One again do not understand their own litigation because they have been busy writing letters to MSPs  suggesting this is a case about the "sovereign right of the people within Scotland's borders to define their own constitutional future". To be honest, the letter they wrote to MSPs is an embarrassment of stupid but this sentence is a perfect example because it is so far off the mark that it is quite unbelievable. Any litigation on the sovereignty of the Scottish parliament would be as misguided as their original plan to sue the UK government.  Luckily, that isn't what the case is about. 

What is the case about?  The case will test a conundrum at the heart of the Scotland Act. The Scotland Act devolves referendums but reserves the constitution.  What about a referendum on the constitution?  This has been considered in great detail by the Constitution Committee of the House of Lords way back in 2012. Their findings led to the S30 order that was the starting point of the 2014 indy ref. However, the report points out that an authoritative determination of the legal issues could only be given by the courts. Well, that wish is going to come true to at least some extent.

Before we discuss the case, it's worth thinking about referendums for a second.  What are they for?  Well, in the UK they are to make decisions that the legislature cannot make. The key point here is that referendums are decisions-making events because they are a substitute for parliament making a decision. Decisions are quite distinct from opinions because decisions have consequences.  But how are those decisions implemented? Well, they are implemented by the government drafting the necessary legislation, followed by parliamentary amendments, and votes on the amendments and amendments to the amendments and votes on those and so on until a wording is found that can be accepted or rejected. This all gives the sense that referendums are no more than fancy opinion polls, that they are purely advisory. In strictly legal terms this is true. There is no legal compulsion for parliament to implement any decision made by a referendum. Even if the referendum question included draft legislation, there is nothing to stop parliament amending the hell out of it or simply rejecting it altogether.

Does anything bind parliament to implement the decision of a referendum?  The answer to that is political force rather than legal force.  Parliament makes politically binding commitments in advance to implement the decision made by the referendum.  I'm sure we all remember David Cameron saying that the decision of the British people to leave or remain in the EU would be implemented. He meant it. Parliament meant it. In fact, the entire system of government in the UK has been tied up in knots for for years now trying to implement one of the most stupid decisions of all time.  Despite 5/6 of parliamentarians supporting the Remain option, the UK still left the EU. This political force is very real.

Now, I dont remember David Cameron standing on the steps of Nr 10 and promising he would implement the results of the 2014 indy ref.  This is because he didn't need to. The political commitment to implement the result was already built into the  Edinburgh Agreement, which set out, in the broadest of terms, an agreed set of principles that would govern the conduct of the referendum. One of these terms is a commitment to "respect the result".  To my mind, this is an unequivocal political commitment to implement the result.  Sure, it's legal footing might have been contested but this is all about politics and not about the law. If you're noticing a pattern that it's all about politics and not about the law then I'm doing ok in this post.


Independence has many paths but the path with the best outcome is the one that builds on consent. Without consent we can wave goodbye to EU membership and instead join an exclusive club that includes Abkhazia, Transdnistria, South Ossetia and Nagornoh Karabakh. International politics is a grim world where countries protect their foreign policy objectives.  No matter what Craig Murray might suggest, no sane country has a foreign policy objective that involves deliberately and pointlessly annoying their closest allies by recognising breakaway states. It's an objective fact that an independent Scotland would become a contested territory unless parliament first repeals all manner of legislation to modify the UK's constitution. An absence of consent doesn't mean tanks at the border or marshal law but it does mean a legal, constitutional and democratic mess that would be easily worse than remaining in the UK.  In this kind of mess, you do need to think about the countries that will let you through passport control.  I'll be spending summer in Tehran, next year. What about you?


Ok, back to the crowdfunder. Their aim is to determine the competence of the Scottish Parliament to legislate for a referendum on independence.  The argument developed by their legal team is that an independence majority does not automatically lead to constitutional change. Now, that is legally true because the path to independence requires the UK parliament to agree to all sorts of changes to the primary legislation that governs the UK's constitution. If a referendum does not automatically lead to constitutional change then it does not interfere with the principle that the constitution is reserved. The Scottish Parliament may therefore use its powers under the Scotand Act to hold a referendum on a question about the constitution. This is a plausible argument that has been raised by academics on quite a few occasions.

Is the referendum proposed by the litigants different in its character to the 2014 indy ref?  It is a decision-making referendum or is it just sampling opinion or is it something else altogether? This is where I wonder about the intellectual capacity of the campaign team behind the litigation.  The referendum ought to lead somewhere because if it doesn't we will have squandered the limited opportunities we have to hold one.  Only the UK Parliament can really answer the question about the consequences of an indicative Yes but we truly cannot know in advance how they will react.  We can say with some certainty that a S30 signifies a political commitment to implement the result of the referendum. What can we guarantee about a referendum that was never backed by political force? It is an open question.

Today, I read a blog post suggesting that the SNP should reject any S30 offer because it will be a poisoned chalice configured with Unionist traps, barbed wire and mendacity. I'm paraphrasing, obviously, but that was the gist. This argument is truly misleading because an "indicative" referendum, or indeed any referendum that doesn't build on House of Commons consent, are the only ones that can be easily ignored.  I doubt Westminster would completely ignore it, to be honest.  I mean, they'll set up working groups to explore federalism or fiddle with the Scotland Act or make a big show of spending money but that might be all we get. It's hard to say what they would do but it strikes me as unlikely they'd just stick their fingers in their ears.  Equally, who would bet on the current government beginning secession talks based on an indicative referendum?  Those secession talks would require parliamentary consent at some point, after all.  Parliament never gave its consent to hold a referendum so why should they consent to repeal the Act of Union? Another open question.

You might have guessed that I've not donated to any of the crowdfunders mentioned here. I'm simply not convinced that even a positive legal outcome leads anywhere positive in reality.  In fact, a positive legal outcome might be the barrier to real constitutional change because it might end up squandering a referendum on a politically expensive opinion poll.  How many referendums exactly are left in the referendum bank?  On top of that, there are serious questions about the ability of Forward As One to meaningfully complete litigation or to understand what that might involve. Their record so far suggests they fundamentally do not understand their own case to the extent that they really should not be soliciting for donations.

It's an objective fact that the 2014 indy ref started with a Holyrood win based on an unconditional manifesto pledge to hold a referendum and ended with a political commitment from all sides to implement the result. Why is everyone so convinced it won't happen again?

Over and out,

Terry

PS I suppose if you support UDI then you probably don't care about political commitments from Westminster and I suppose that's the position of  many of the loudest indy bloggers. It's just that these strategies lead to impractical paths to constitutional change. It's yet another one of those pathways that suits fanatics who probably have thought it through but for most people it doesn't stand up to the thinnest scrutiny.  The problem is that these kinds of arguments are never scrutinised and when they are it all inevitably leads to all sorts of wild accusations and name-calling.

PPS I suppose if you truly support UDI it would be logically inconsistent to bother with a referendum at all.

PPPS Don't get excited, this is a one-off.

PPPPS  If I worked at Buzzfeed I would have titled this, "10 Reasons Why Sturgeon Is Right".