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SNP's plans for independence ballot branded 'fraudulent' | Quote: | JIM Sillars, a former SNP MP, has cast further doubt over plans for an independence referendum by claiming the policy has been rejected as illegal by official civil-service advice.
SNP plans for a referendum on independence have been in the spotlight over the past few days because of confusion as to when an SNP-led government would publish a bill on a referendum and when the referendum would take place.
Now Mr Sillars, a former deputy leader of the SNP who fell out with the party over its referendum plan, has published briefing papers for ministers which, he claims, show an SNP Executive would not be able to hold a referendum.
Writing in The Scotsman today, Mr Sillars states: "Neither an SNP Executive nor the Scottish Parliament has any powers to hold a referendum on the constitution."
Mr Sillars has obtained a series of background briefing papers for ministers under the Freedom of Information Act.
They state that it would be illegal for any minister to play any part in a referendum on the constitution, questions of which are reserved to Westminster.
Similar guidance was published last year, but Mr Sillars' documents are more detailed and explain key Executive positions in greater depth.
One briefing note from May 2000 states: "The parliament can only pass legislation in devolved areas, and since UK constitution is a reserved area, it would be ultra vires for the parliament to pass legislation to authorise a referendum on any aspect of the constitution."
The paper adds: "Neither can Scottish ministers have any function in connection with holding such a referendum. Even if a majority of MSPs who wished to have a referendum were returned to the Scottish Parliament, this would not alter the legislative competence of the parliament. The question of independence could only be pursued at Westminster."
Another piece of civil-service advice, prepared for a parliamentary question in December 2000, warned against the use of any public funds for a referendum.
It stated: "It would be outwith the parliament's competence to pass legislation to authorise expenditure for a referendum on an aspect of the constitution, as this is a reserved matter."
Mr Sillars is a so-called "fundamentalist", believing the SNP should campaign for independence, not a referendum.
The former MP, who won a famous by-election in Govan for the SNP in 1988 after switching from Labour, said: "You get a mandate for independence by winning a majority of seats and votes for independence. Instead of doing that, the SNP has tied itself up in a referendum, which is probably a fraudulent idea."
Mr Sillars and Mr Salmond have long been political foes, and an SNP spokesman dismissed the documents as "old news". He said the SNP had chosen its referendum question with care, aware the wrong question could be ruled illegal.
The SNP wants voters to answer yes or no to: "The Scottish Parliament should negotiate a new settlement with the British government so that Scotland becomes a sovereign and independent state."
This, party leaders believe, would get round any potential problems of illegality, because the Scottish Parliament has the power to negotiate with Westminster and this could not be dismissed as a reserved issue.
The spokesman said: "The SNP's proposed referendum is about authorising the Scottish Parliament to negotiate independence with Westminster. That is in the vires of the Scottish Parliament and Executive, including on constitutional matters. The bottom line is the Scottish people are sovereign." |
http://news.scotsman.com/scotland.cfm?id=77682007
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Aventinian
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Well, it's been my position all along. Even on the off chance that it was found not to be, it'd be delayed for months, if not years, as it went through all the systems and finally to the Privy Council.
If there's a majority in the Scottish Parliament for a referendum, I imagine Westminster would hold one.
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Economist
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I've seen another legal opinion, that suggests their could be two referendums - the first one would be a consultation or a "consultative referendum" not be straying outside the Scotland Act. The first one would not need to ask a direct question, but something along the lines of:
"Do you authorise the Scottish Executive to enter into discussions with Her Majesty's Government agreeing the terms for Scottish independence?" or
"Do you authorise the Scottish Executive to negotiate the terms for Scotland to be an independent state, which is no longer part of the United Kingdom?"
It isn't asking people to formally decide, but asking them whether they support discussions and negotiations on the subject. After all these discussions could fail, they could pass and a second more explicit referendum held, which would give the final say.
As I say, it is just one more legal opinion to throw into the mix.
| Aventinian wrote: | | If there's a majority in the Scottish Parliament for a referendum, I imagine Westminster would hold one. |
If it were a Tory government in Westminster, I agree 100% with that. If it is a Labour one, then not on your nelly. Even the Scottish LibDems might come around to that kind of thing.
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Hendry
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Re: SNP's plans for independence ballot branded 'fraudulent' | Avatar wrote: | | Quote: | JIM Sillars, a former SNP MP, has cast further doubt over plans for an independence referendum by claiming the policy has been rejected as illegal by official civil-service advice.
SNP plans for a referendum on independence have been in the spotlight over the past few days because of confusion as to when an SNP-led government would publish a bill on a referendum and when the referendum would take place.
Now Mr Sillars, a former deputy leader of the SNP who fell out with the party over its referendum plan, has published briefing papers for ministers which, he claims, show an SNP Executive would not be able to hold a referendum.
Writing in The Scotsman today, Mr Sillars states: "Neither an SNP Executive nor the Scottish Parliament has any powers to hold a referendum on the constitution."
Mr Sillars has obtained a series of background briefing papers for ministers under the Freedom of Information Act.
They state that it would be illegal for any minister to play any part in a referendum on the constitution, questions of which are reserved to Westminster.
Similar guidance was published last year, but Mr Sillars' documents are more detailed and explain key Executive positions in greater depth.
One briefing note from May 2000 states: "The parliament can only pass legislation in devolved areas, and since UK constitution is a reserved area, it would be ultra vires for the parliament to pass legislation to authorise a referendum on any aspect of the constitution."
The paper adds: "Neither can Scottish ministers have any function in connection with holding such a referendum. Even if a majority of MSPs who wished to have a referendum were returned to the Scottish Parliament, this would not alter the legislative competence of the parliament. The question of independence could only be pursued at Westminster."
Another piece of civil-service advice, prepared for a parliamentary question in December 2000, warned against the use of any public funds for a referendum.
It stated: "It would be outwith the parliament's competence to pass legislation to authorise expenditure for a referendum on an aspect of the constitution, as this is a reserved matter."
Mr Sillars is a so-called "fundamentalist", believing the SNP should campaign for independence, not a referendum.
The former MP, who won a famous by-election in Govan for the SNP in 1988 after switching from Labour, said: "You get a mandate for independence by winning a majority of seats and votes for independence. Instead of doing that, the SNP has tied itself up in a referendum, which is probably a fraudulent idea."
Mr Sillars and Mr Salmond have long been political foes, and an SNP spokesman dismissed the documents as "old news". He said the SNP had chosen its referendum question with care, aware the wrong question could be ruled illegal.
The SNP wants voters to answer yes or no to: "The Scottish Parliament should negotiate a new settlement with the British government so that Scotland becomes a sovereign and independent state."
This, party leaders believe, would get round any potential problems of illegality, because the Scottish Parliament has the power to negotiate with Westminster and this could not be dismissed as a reserved issue.
The spokesman said: "The SNP's proposed referendum is about authorising the Scottish Parliament to negotiate independence with Westminster. That is in the vires of the Scottish Parliament and Executive, including on constitutional matters. The bottom line is the Scottish people are sovereign." |
http://news.scotsman.com/scotland.cfm?id=77682007 |
There is nothing new in this guff. It is regularly trotted out by the unionist establishment. Sadly, there is nothing particularly new in Mr Sillars taking positions which aid of the British Establishment either.
The fact of the matter is that the right to self-determination is a basic human right. This is enshrined in the Charter of the UN and signed up to be nearly every nation on Earth in a Covenant on political rights.
As such, it is not possible for people or their representatives, to 'sign away' that right.
The very declaration that the final say on constitutional matters rests with Westminster directly contravenes that right. The right to self-determination states that ONLY the people within the geographical region concerned can say whether they wish to seek self-government. No external person or body can grant them that right. That is what SELF-Determination means.
The host State of the region which seeks self-determination, is also bound by UN regulations to provide a mechanmism for testing for and delivering said self-determination.i.e. usually a referendum. The UK government are also currently dellinquent on that score as well.
Sadly, it is the norm for the external seat of power to try to object to referenda and/or declarer them illegal, but in the end accept the result. See even Moscow re Ukraine.
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Aventinian
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Re: SNP's plans for independence ballot branded 'fraudulent' | Hendry wrote: | | The fact of the matter is that the right to self-determination is a basic human right. This is enshrined in the Charter of the UN and signed up to be nearly every nation on Earth in a Covenant on political rights. |
The UN Charter probably reflects the position of customary law, yes. It doesn't say anything about a human right to self determination. And it talks of territories which - in the clarifying documents and case law before the ICJ (which I have cited many times before on this forum) is stated to be non-incorporated territories: in other words, colonies. Scotland is an integral part of the United Kingdom.
It doesn't apply here any more than it applies to my right to declare my garden an independent state.
| Quote: | | As such, it is not possible for people or their representatives, to 'sign away' that right. |
With the exception of peremptory norms, International law is an entirely voluntary construct between willing states and any provision of it can be opted out of.
| Quote: | | The right to self-determination states that ONLY the people within the geographical region concerned can say whether they wish to seek self-government. No external person or body can grant them that right. That is what SELF-Determination means. |
And you source this from where exactly?
| Quote: | | The host State of the region which seeks self-determination, is also bound by UN regulations to provide a mechanmism for testing for and delivering said self-determination.i.e. usually a referendum. The UK government are also currently dellinquent on that score as well. |
Now I know you're talking nonsense. The UN does not have the authority to make a binding resolution via any of its organs to that effect, nor in any Nationalist's wildest wet dream would states (which are almost all multi-national to some extent) agree to it. I've cited sources many times on this issue, Nationalists seem to see the UN Charter and s**t themselves with delight without any further investigation, you make vague references to needle-in-a-haystack documents that I know fine well don't exist.
I suggest you learn something about the law before commenting on it.
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Aventinian
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| Economist wrote: | I've seen another legal opinion, that suggests their could be two referendums - the first one would be a consultation or a "consultative referendum" not be straying outside the Scotland Act. The first one would not need to ask a direct question, but something along the lines of:
"Do you authorise the Scottish Executive to enter into discussions with Her Majesty's Government agreeing the terms for Scottish independence?" or
"Do you authorise the Scottish Executive to negotiate the terms for Scotland to be an independent state, which is no longer part of the United Kingdom?"
It isn't asking people to formally decide, but asking them whether they support discussions and negotiations on the subject. After all these discussions could fail, they could pass and a second more explicit referendum held, which would give the final say.
As I say, it is just one more legal opinion to throw into the mix.
| Aventinian wrote: | | If there's a majority in the Scottish Parliament for a referendum, I imagine Westminster would hold one. |
If it were a Tory government in Westminster, I agree 100% with that. If it is a Labour one, then not on your nelly. Even the Scottish LibDems might come around to that kind of thing. |
A second referendum to be held by whom? Westminster?
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Economist
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| Aventinian wrote: | | Economist wrote: | I've seen another legal opinion, that suggests their could be two referendums - the first one would be a consultation or a "consultative referendum" not be straying outside the Scotland Act. The first one would not need to ask a direct question, but something along the lines of:
"Do you authorise the Scottish Executive to enter into discussions with Her Majesty's Government agreeing the terms for Scottish independence?" or
"Do you authorise the Scottish Executive to negotiate the terms for Scotland to be an independent state, which is no longer part of the United Kingdom?"
It isn't asking people to formally decide, but asking them whether they support discussions and negotiations on the subject. After all these discussions could fail, they could pass and a second more explicit referendum held, which would give the final say.
As I say, it is just one more legal opinion to throw into the mix.
| Aventinian wrote: | | If there's a majority in the Scottish Parliament for a referendum, I imagine Westminster would hold one. |
If it were a Tory government in Westminster, I agree 100% with that. If it is a Labour one, then not on your nelly. Even the Scottish LibDems might come around to that kind of thing. |
A second referendum to be held by whom? Westminster? |
I'd imagine it would be the Scottish Parliament with Westminster backing, or a collaboration between the two. Although I'd suspect it would be the Scottish Parliament, most likely.
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