Scottish Parliament cannot hold Independence vote...

azzuri · Scottish Parliament cannot hold Independence vote...

Scottish Parliament does not have the powers to hold independence vote

By Paul Hutcheon Scottish Political Editor

HOLYROOD would not have the power to organise a referendum on independence in the event of an SNP victory next year, according to official Scottish Executive guidance.

A poll on creating a separate Scottish state could only be arranged by MPs because the constitution is reserved to Westminster.

The revelation casts doubt on whether a Nationalist government in Edinburgh could ever offer Scots a vote on independence. SNP leader Alex Salmond has dismissed the advice and warned Labour not to ignore the “sovereignty of the Scottish people”.

The row began after the Sunday Herald obtained a Scottish Executive file on the parliament’s ability to stage an independence referendum.

Nationalist policy is for an SNP-led Executive to legislate for an independence vote during the party’s first term.

The policy has long been shrouded in controversy after Labour claimed Holyrood did not have the power to organise a referendum. It flared up as an election issue in 2003 after Whitehall officials were briefed that the UK government would block the SNP’s key demand if the party won a Holyrood election.

Now the Executive’s own advice states MSPs cannot offer Scots a vote on whether to remain part of Britain. A paper on independence states: “Scottish parliament does not have the powers to pass legislation authorising expenditure on any referendum. [It] can only pass legislation in devolved areas, and since the UK constitution is a reserved area, it would be ultra vires [beyond its power] for the parliament to pass legislation to authorise a referendum on any aspect of the constitution.” The guidance adds: “Neither can Scottish ministers have any function in connection with the holding of such a referendum.”

Another document insists MSPs would not be allowed to spend public money on organising an independence vote because the matter is reserved. I f a Holyrood election produced an SNP majority, it noted: “It would continue to be a matter for the UK government and the Westminster parliament to decide whether or not to hold a referendum.”

Polls show the Nationalists are set to make gains from Labour that could see Salmond replace Jack McConnell as First Minister.

Nationalist sources feel the problem can be solved by an SNP-led Executive staging a “consultative” referendum on independence. It would mean a “yes” vote resulting in the Executive starting negotiations with the government to establish a separate Scottish state.

Executive guidance makes it clear any referendum on a reserved matter, regardless of whether it is consultative, could not be funded by public money.

Salmond said he disputed the Executive’s guidance : “We have legal advice that makes us very confident.

“The overriding principle is the sovereignty of the Scottish people, and to argue otherwise is to commit political suicide. The parliament can consult on whatever it pleases.”

But Labour peer Lord Foulkes insisted Holyrood was unable to organise an independence vote: “The Executive guidance is the correct position. Salmond is trying to pretend the parliament has the power to hold a referendum, but he is misleading himself and others. The SNP would have no constitutional right to do it.”

Tory MP and shadow Scottish secretary David Mundell also said he agreed with the Executive advice: “I welcome this clarification, as it would be outrageous for public money to be used to help break up the United Kingdom. It’s quite clear to me that independence is a Westminster matter. The key for the SNP is to get a majority of Scots to vote for them at a general election.”

A spokeswoman for the Executive said ministers backed their own guidance on an independence referendum.

13 August 2006

see - http://www.sundayherald.com/57233

An Dà Shealladh

More scare stories. They must really be worried about the forthcoming election and real fear of loosing.

There is no way Tony Blair or whoever is in charge could ignore the will of the people.
His whole lie on invading Iraq and various other Countries is that he is defending freedom and democracy.How can he defend a democratic vote to split the UK ?

carol

There's nothing like being shackled to Westminster Shocked

This alone should make the Scottish people more determined to demand a referendum and put the Scottish Parly and Westminster to the test.

People are needing to take to the streets and make their voices heard. Independence First's march at the end of September will be hopefully the first of a series of marches getting the message across. All we need now is the people to be there! Please put Independence First on the 30th September, rain, hail, sleet or snow. Forget the rugby matches and the footie for one day, just be there.

We are also in the process of petitioning the Scottish parliament and are at present raising an e-petition followed with a 'paper' petition in the autumn. The e-petition will hopefully be on-line leading up to the march. No doubt our first place of call with the link will be here.

It's now down to the people to help make it happen, here's hoping the politicians hear us out.

Carol

Economist

I must admit, I've been worried by this. The Scotland Act states that the Constitution of the UK, the Union of Scotland and England and the practice of having a referendum are reserved to the UK Parliament.

Presumably to hold a referendum the SNP-led executive would need to pass a bill in the Scottish Parliament. Every bill passed by the Executive needs to be certified by the Presiding Officer to ensure it meets the criteria of the Scotland Act. It goes to the cabinet office in London and If it goes beyond the Scotland Act, the Secretary of State for Scotland can refuse its submission for Royal Assent. That hasn't happened because Labour is in power in London and Edinburgh. I've no doubt it will happen more frequently, if there are two different parties in power at Westminster and Holyrood.

I hope I'm wrong, this is more Unionist propaganda and there are legal ways round it (there's bound to be). But if not, hopefully it should show everyone in Scotland just how impotent their parliament really is when it cannot do something as basic as consulting the Scottish people regarding their wishes, and then acting upon that Evil or Very Mad

IF Convenor

The executive can hold a consultative referendum. If funds are refused, I'm sure a subscription can be raised; I'll make a generous contribution! I doubt if it would need legislation.

If the ptb in Whitehall refuse either the referendum or the result, they are burying themselves. They'll prove their anti-democratic credentials and they'll be in violation of the UN Charter which guarantees the right to self-determination. We will not let them off the hook.

It would be great to see a special sitting of the Scottish Parliament revoke the Act of Union.

True Scotsman

I was worried this would happan myself. It does say that UK Constitution is a reserved issue & the Act of Union, 1707 & Scottish Independence is a Constitutional issue. However early on this year there were signs of Tony Blair was starting too get worried over the Scottish Independence issue. It will be an issue when it gets closer too the 2007 Scottish Parliament Elections.

True Scotsman

Some UK Prime Ministers, including Margret Thatcher & John Major, have said that the Scottish people have the right too self-determination. Under the
Vienna Convention on Succession of States in respect of Treaties does guarantee the right to self-determination.

http://en.wikipedia.org/wiki/Vien..._of_States_in_respect_of_Treaties

http://www.taiwandocuments.org/vienna02.htm

SLG

Aye, but they will argue how that self-determination is expressed.

IF Convenor

Never mind the Vienna Convention, read the United Nations Charter. The UK is a founder member of the UN and was among the first to sign the Charter.

http://www.un.org/aboutun/charter/

Article 1.2 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;

Article 2.2 All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

Article 73 (in part) Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:

a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;

b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;

See also http://www.unhchr.ch/tbs/doc.nsf/...f37fc12563ed004960b4?Opendocument

SLG

But what's to stop them saying, as David Mundell does in the Herald article, that the powers over the constitution lie with Westminster and the self-determination of the Scottish people must be directed through it.

IF Convenor

Nothing.

But if the Scottish Parliament or Executive can clearly demonstrate a desire for independence, as would be the case with a majority in a referendum, how is the British Government going to resist? They have signed treaties and charters upholding these very rights, past Prime Ministers have gone on the record stating that if the people of Scotland want independence they shall have it. How can they deny it when the time comes?

The Scottish Parliament may not have the power to hold a binding constitutional referendum but they can most definitely find a way to hold a consultative referendum and, once the results are in, there will be no way to deny a clearly demonstrated choice.

SLG

I agree, if we can demonstrate that desire for independence, it would happen. I'm just thinking through the different scenarios. What if the Scottish Parliament organises a referendum, but the Unionists boycott it on the basis that Holyrood has no right. Could that not nullify any result?

IF Convenor

Not if the turnout is high enough.

Let's say the unionists boycott, but the yes vote is 1,000,000+. Who's going to deny that's a mandate? Given the level of turnout at General Elections, who would deny that that wasn't a substantial mandate?

Even better if it's 2,000,000 or more, but anything over 1,000,000 would be a vindication in my eyes.

Babygael

If said

IF Convenor

You're wrong.

Happy now?

SLG

IF Convenor

Now you're getting close to the realms of revolution! I'm not saying it won't come to that, but it would be a brave council which would go against a Parliamentary majority. And keep in mind councils will be elected by STV PR next year so there will far fewer, if any, Labour dominated councils.

When it comes right down to it, the unionists will bluster (they've had enough practice) but I think they'll cave. It has been suggested that between a third and a half of Labour voters support independence so when it comes to a single issue referendum Labour's going to find itself fighting a sizeable proportion of its own support base. That is not a situation the pro-independence parties will face (except maybe for the SWiPes in the SSP).

Babygael

Cado

The circular logic present here is ridiculous. The whole purpose of independence is to setourselves free from the imposition of the Westminster village.

Their reply to this: "You can't, because we haven't said that you can".

Statements such as the one made and the outlook contained therein only go to prove the point IMO.

darkside

Maol.Chaluim

IF Convener - surely funds for a referendum can't be refused, as the SP gets a block grant from Westminster, and it can decide how to spend it's own pocket money, can it not?

IF Convenor

That's what I was thinking too, but I'm sure Gordy Broon will try some skullduggery.

I'm just saying if the money was withheld in some way I'm sure it could be raised by other means.

What's the Executive's advertising budget at the moment?

SLG

If I'm reading this correctly, the advertising budget 2005-2006 was £8,718,000. See http://www.scotland.gov.uk/Publications/2005/09/06112356/24241. How much do you think it would cost to run the referendum?

IF Convenor

Way less than 8,718,000 of your earth pounds I imagine. Very Happy

SLG

Were there any expenses published for the devolution referendum?

IF Convenor

Probably... time to ask Mister Google...

IF Convenor

According to http://www.publications.parliamen...203/cmbills/003/en/0300003x-a.htm a referendum costs 80p per registered voter. How many in Scotland? 3 million? 3.5? Let's take the upper figure, that would be 2.8 million to run a referendum.

Reluctant Hero

Regardless of where the money comes from for the actual referendum, I think it is probably more important that the "Yes" lobby secure enough funding to sustain a lengthy and effective campaign.

Some people vote for whoever shouts loudest and longest and when the counting ends, these votes may be crucial.

Economist

As long as legislation isn't needed, then I cannot see how they could be prevented from holding a referendum.

I was really annoyed by the sneering of Scotland's only Tory MP, the supposedly honourable member for Dumfriesshire, Clydesdale and Tweeddale, on the issue that it would be "Westminster that decided these things" and that it was a completely abhorrent thought that the Scottish Parliament would have the cheek to ask the people of Scotland what they thought of their constitutional future, independent of Holyrood's masters in London (composed almost entirely of MP's that are unaccountable to us in Scotland). It's utterings like that, that show why (in their present form) the Tories are on their way to extinction in Scotland

FALSYDE

There are a number of red herrings to this story and the fact that it has been 'floated' via the Unionist Herald is no accident.
Some "FACTS"
[a] there is NO UK CONSTITUTION per se;
[b] the SEP has, and still maintains that the need for a referendum may of itself be another red herring because there is only one constitution per se within the UK and that is the earliest written consitution in the world, i.e. the Scots Consitution;
[c] were the Scots electorate to send 65+ nationalist MSPs to Holyrood they would be perfectly entitled, AND would be expected to lay before parliament a bill to repeal the Act of Union which were it to be carried it would result in a done deal;
[d] not surprisingly there would be a reasonable expectation of load noises off from Westminster but how would that play around the world amongst the post colonial era nations, not well especially given all the rhetoric and bullshit from our Uncle Tom of a Prime Minister on the subject of freedom and democracy. Assume Westminster would be shafted, because it will be.

The SEP have agreed out of solidarity with other nationalists to support a referendum but we still regard it as a needless excercise, the only vote that counts constitutionally and would be undeniable even by Westminster is the vote of the Scots people at an election. Do remember the Scots Constitution, paraphrased for simplicty -"we the Scots are sovereign and delegate our sovereignty to crown and parliament to excercise on our behalf, were they to fail to do so we will put them aside and appoint others". Do also remember that while England's so called constitution resides with parliament [Westminster] and is based on Common Law, this country specifically retained its seperate legal system so that cuts no ice here and the Scots consitution is an internationally reckonised document upon which no less that of the USA was largely founded and ours resides with the Scots people and nobody else. NOTHING in the Treaty of Union abrogated that fact, and it is a widely held consitutional practice internationally that no parliament can bind its sucessor.

Keep the faith and don't listen to the factually inaccurate and ill informed amongst us and our southern neighbours. We gave away nothing permanently in 1707! However much they might wish to think it.

Maol.Chaluim

Good to hear from you, FALSYDE. Smile

Quick question:

Suppose a majority of pro-independence MPS are elected in 2007, including one or two SEP members. Would you introduce a bill to declare independence, or support the SNP's bill to hold a referendum?

IF Convenor

The Declaration of Arbroath is nothing more nor less than a letter to the Pope asking him to put pressure on England to stop playing silly buggers with Scotland. I have never heard it recognised as a constitution for Scotland.

The Acts of Union were meant to be permanent. It says so right in the preamble.

That having been said, I agree that Scotland can regain its independence simply by repealing the 1707 Act. And I agree that sovereignty rests with the population of Scotland, not Parliament, which is the case in England.

Where I disagree is with the belief that electing a majority of pro-independence MSPs is enough by itself. Political parties have manifestos which deal with a wide range of topics and people vote for political parties on the basis of these manifestos. Who's to say which parts of which manifestos any individual may have voted for? The only way to unequivocally settle whether or not there is majority support for independence is with a specific referendum on independence. A successful referendum leaves Westminster and Holyrood with no wiggle room. The sovereign people of Scotland will have declared their will and that will be that.

True Scotsman

This what Michael Forsyth, a staunch Unionist, once said " Scotland is sovereign under a union and we can leave at any time."

Aventinian

Aventinian

IF Convenor

Been done in the '50s, and was dumped as soon as it reached Downing Street.

The fact is the Scottish Parliament or the Executive (which has its own budget, including about nine million pounds for advertising) can hold a consultative referendum on any matter. If that referendum produces a large turnout and a large majority in favour, what rational government is going to deny the proven will of the people?

The UK is a founder member of the United Nations and signed up to the Charter. Article one of the UN Charter guarantees the right to self determination. It'll be a brave or foolhardy UK Government which denies Scotland self determination in the face of a clear majority in a consultative referendum.

Avatar

"It'll be a brave or foolhardy UK Government which denies Scotland self determination in the face of a clear majority in a consultative referendum"

There's no way they could, if they did what would be the alternative? A Scottish terrorist group? Would the Welsh Nationalists and the Republicans in NI still be confident that they can acheive their aims through peaceful means within the political system? It would result in nothing less than civil war.

Aventinian

Reluctant Hero

Aventinian

neil8r

So what are Unionists scared of?

Surely if they think they are right in regards our consitutional status then a referendum would back the status quo and a no vote for independence would kill off the Nationalist side for a generation.

Maol.Chaluim

Aventinian -

Would you question the legitimacy of the United States, as their declaration of independence was illegal?

IF Convenor

Aventinian

Aventinian

IF Convenor

Scotland is governed with only token representation. This is inevitable as Scotland has less that 9% of the UK population.

Scotland has a separate legal system to the rest of the UK.

If it was justifiable for the American colonies on these grounds, what say you to Scotland's case?