Tuesday, 10 January 2012

Referendums, who can call them.

There is ongoing confusion for many over the legality of the upcoming independence referendum, who can hold it, when, what the question(s) should be and will it be binding or advisory. This confusion is perpetrated by widespread dis-reporting in the mainstream media without full verification of all the underlying facts.

There is certainly an issue now that Westminster claims it has the “legal authority” to grant Scotland a referendum, with David Cameron speaking of ‘legally binding”, control of content and “sunset clauses”. The only definite thing that can be said of the last week is that the Union and its supporters have elevated the rhetoric. 

Being clear, Westminster certainly has the authority to call a referendum in Scotland; it has done so in the past. Holyrood also has the authority to call a referendum. In theory, anyone can call for a poll in a populous, it's called Democracy.

Stepping back one can understand where Cameron is getting his legal input. The Union case for interference comes from sources such as professor Tomkins, an expert on constitutional law at Glasgow University, who largely echoed Aiden O’Neil’s earlier comments by informing the Scottish affairs committee in Westminster that “any referendum should be run by the Electoral Commission and, for it to be acceptable, the questions, their meaning and effects should be "crystal clear".

The only part of the statement which is unarguable is that “the questions, their meaning and effects should be crystal clear”. As to the remainder it’s quite normal for an independence referendum, or in Scotland’s case a restoration or repatriation referendum to be the province of international or external authorities.

Professor Tomkins is described as a leading academic in the field of constitutional law; therefore his views certainly deserve merit as does his warning that there is a "very strong" argument in constitutional law that the Scottish Government will be exceeding its statutory powers by staging an independence referendum.

The Scottish affairs committee at Westminster is certainly exceeding its remit, as it is limited to commenting and examining the affairs of the Scottish Office, not Holyrood, but is Holyrood also exceeding its remit as the good professor would infer and have us believe.

Alex Salmond has rejected this and all previous claims that the Scottish Government lacks the powers to hold an independence referendum. David Cameron who previously referred to the referendum as being for Scotland to decide has now apparently changed his views.

Immediate indications are that the proposed poll is legal from the standpoint of both leaders and that what is proposed by the Scottish affairs committee and its quoted expert is without basis. Professor Tomkins does throw out credible arguments, similar to those used by others before him as they try to deny Scotland a voice.

In his paper as submitted to Westminster's Scottish affairs committee, Professor Adam Tomkins put forward the argument that there was a "strong constitutional case" for the UK Government, and not Holyrood, to legislate for the referendum. He stated "If the question is 'Should Scotland remain in the United Kingdom?' that is a question on a reserved matter and should therefore be asked (if at all) by HM Government under the authority of an Act of Parliament”.

The use of his wording, “if at all” gives an exceedingly strong indication as to Adam Tomkins personal leanings with regards to dependency or self determination.

The submission to the committee continued "Were the Scottish ministers to seek to ask such a question in a referendum held under the authority of an Act of the Scottish Parliament (ASP), there is (at the least) a very strong argument the ASP would be outwith competence and, therefore, 'not law' under section 29 of the Scotland Act 1998, and that the Scottish ministers would be acting outwith their devolved competence if they sought to exercise powers in pursuit of such an ASP.

"If the question is 'Should the Scottish Government seek to renegotiate with HM Government the terms of the Union?', my view would be the same: this is a reserved matter, even if the referendum question somehow made clear that the renegotiation was not intended to end the Union and that the proposal was not that Scotland should leave the United Kingdom."

Professor Tomkins views are therefore crystal clear; Holyrood doesn’t have the power under the UK constitution to hold a referendum. This is only under an alleged UK constitution, uncodified, unwritten, never voted upon.

Offsetting the opinion of this constitutional law expert appears the previously mentioned views of both Alex Salmond and David Cameron with the Scottish government also firm in its commitment and belief that it both has the legal remit and authority to bring forward a referendum bill followed by a constitutional poll in the second half of the current Scottish Parliament.

Who’s correct and who’s obfuscating?

A spokesman for Alex Salmond previously said "Professor Tomkins needs to catch up", before adding: "Everyone else, including the Prime Minister, accepts the right of the Scottish Government and Parliament to hold the referendum - we are entirely confident of our legal position."

Professor Tomkins and his predecessors apparently chose their words most carefully; under UK law Holyrood doesn’t have the authority to legislate for a constitutional referendum. UK law is very clear on this in that “the constitution” is a reserved matter, per Westminster.

The professor therefore hangs his hat on a peg by stating “it would be preferable for the United Kingdom Parliament to legislate on the matter”.

Interestingly Professor Tomkins doesn’t say “Only Westminster can legislate on this subject”, simply that it would be “preferable”. The issue again is why the use of the word “preferable” and preferable for whom?

In his statement the professor calls for any referendum to be held as quickly as possible, another voice to the constant Union generated bedlam. The use of his word “preferable” is not so quickly explained and as the trails are unravelled it’s clearly demonstrated that it is only preferable from a Union perspective.

Tomkins is apparently viewing the United Kingdom of Great Britain and Northern Ireland as a single country, which it is not. The “UK” in its present form is a state, not a nation, and has only existed under its current name and verifiably compound status since 1926. Constitutional rights in Scotland are different from those in England; therefore that “constitutional argument” is on a shoogly peg indeed.

The original Treaty of Union of 1707 was between two independent nation states, setting aside the legality questions surrounding that agreement there is an indisputable fact that Scotland and England are not “one country” but two nations co-existing as one state with a presently unified “supreme” government.

Effectively under that treaty both Scotland and England devolved their government to Westminster. The Union treaty made no mention of suspending Scotland’s constitution or laws – in fact it promised to “forever uphold” them.

To suggest that Scotland can never withdraw from such a treaty is ludicrous under international law. Even the Foreign office has Scotland listed as a nation with whom it can conduct treaties.

This brings the Vienna Convention on Treaty law into play, with the UK being a signatory. Any bi-lateral treaty can be ended unilaterally with appropriate notification by either party. Scotland in lacking a recognized parliament for some centuries could arguably have been said to have been without the voice that allowed it make such a declaration, absent a declared will of the people.

That situation where Scotland lacked self government has now been rectified, and as Westminster is in agreement that international law trumps national law they are effectively bound by the Scottish Government’s decision in this matter. This could be diluted to state only as long as such decision follows the expressed will of the people. The referendum will give a clear expression of will.

The second player in the referendum arena that Westminster must be mindful of is the United Nations. The UK is a principle member of the UN and signatory to almost every treaty of relevance within its sphere of influence at the UN. The UN position is clear.

The UN charter reads, quite specifically, and was re-affirmed on 10th November 2011 as

“..the Assembly reaffirmed that the universal realisation of the right of all peoples — including those under colonial, foreign and alien domination — to self-determination is a fundamental condition for the effective guarantee, observance, preservation and promotion of human rights.

The Assembly also declares its firm Opposition to acts of foreign military intervention, aggression and occupation, since those have resulted in the suppression of the right of peoples to self-determination and other human rights in certain parts of the world”.

In effect, if the Scottish government were to poll the Scottish people on independence they might contravene Westminster’s interpretation of what’s legal internal to the UK but they should anticipate the backing of the United Nations and the Vienna Convention, both of which the UK is signatory to and bound by under international law.

Fundamentally both Holyrood and London are correct in their assertions.

London is using what it describes as “UK Constitutional Law”, apparently forgetting that we are separate nations bound only by an ancient treaty, many times violated and often effectively amended, most recently in 1926 to include Northern Ireland.

Holyrood is apparently using international law, the Vienna Convention and the stance of the United Nations. In an ideal world Holyrood would therefore set out all aspects of the referendum and Westminster would agree and support – that is democracy at work.

As Westminster is signatory to both the Vienna Convention and the UN charter, and supported the November 10th reaffirmation, with international law usurping national law there is every present appearance of Alex Salmond holding the better hand.

The best that London could hope for is a delaying tactic, which with incessant screams of “referendum now” and a demand for the referendum to be in 2013 would appear to go against current Westminster policy. Any legal delaying tactic by Westminster would also have a strong potential of driving a mass of undecided voters to the pro-independence side of the argument as the SNP would rightfully clamour deprivation of democracy.

Should Westminster choose it can ignore any referendum result as “advisory”, however “the mother of parliaments” would then be in a position of arguing before the UN that the democratic will of a people in its most basic sense, isn’t worth squat.

That is not an argument Westminster will win, meantime one could expect Scotland to chart her own course – hold her referendum on her own schedule and implement the will of the people of Scotland irrespective of Westminster’s wishes.

For the UN to fail to support this would be a most basic, undesirable alteration to international law.

The international community would fundamentally enshrine a precedent in law that the will of a people has no value and that powers once gifted by any state may never be repatriated by that state alone, through peaceful means.

UPDATED@17.17 local time:

Following the announcement by Alex Salmond of the Autumn 2014 date for the referendum, it will be interesting to watch David Cameron's reaction.

Will he indeed remove any possibility of challenge for this and ALL FUTURE Holyrood polls, or will he continue to try to impose conditions, qualifications, addenda or limits?

In the interim, will Westminster work towards a better path for Scotland?


  1. Thanks for the article Hazel. I wonder what Lallands take would be of this, as he seems hell bent on sticking to the law under UK rules?
    It will be interesting to hear waht Moore has to say shortly in the House of Commons. My bet is he will most certainly head straight down the Profs reasoning of argument.

  2. LPW's appears to specialise in Scots and UK law, but this is international. It's not an "internal" affair. This is two nations under a treaty. Just like Westminster in a treaty with Europe. Let's see London's face when/if Brussels turns round and tells them how, when, or what any referendum in returning powers should be. Wouldn't wash with them, why should we allow it to wash with us?

  3. Excellent Toots!

  4. Excellent well argued post Hazel, it would be very helpful however if you added your sources to your posts so that those of us of an enquiring mind (nosey buggers) could read them and critically evaluate them.
    That said great :)


  5. Hazel, I find this to be a useful reference. And I fully agree with you; the treaty of union is a treaty in international law; Westminster does not have the legal authority to alter the treaty.

    See David Walker's paper:




  6. Hear what you're saying Laird, but I'd need a separate blog for all the links. I can use up to 50 or 60 different sources for 1 article, it's why I don't blog daily. The likes of the United Nations resources are easily found by simple Google search.