Referendums, legality and usurpation.

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

Most recently we have one 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 and their meaning and effects should be "crystal clear".

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. While David Cameron in referring to the referendum as being for Scotland to decide, apparently agrees with this stance.

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 the same 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”.

His use of the 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.
 
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, is it Prof Tomkins who appears to know what he’s speaking about with respect to UK constitutional law, or is it Holyrood who have certainly set out their stall on this issue.

One aspect both sides agree upon, as voiced in Professor Tomkins’ submission is that "For a referendum to be constitutionally acceptable, the questions to be asked must be crystal clear as to their meaning and their effects. That is to say, the options must be clearly defined and it must be clear what the consequences are of voting in any particular way."

A spokesman for Alex Salmond 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 the legal position and will bring forward a Referendum Bill for the vote on Scotland's future to take place in the second half of this parliament."

Professor Tomkins apparently has the crux of the matter; under UK law Holyrood doesn’t have the legislative authority to legislate for a constitutional referendum. UK law is very clear on this in that “the constitution” is a reserved matter. This gives a notional meaning that if Holyrood wanted a referendum on prescription charges or university fees then such is within its competence, but on the constitution the parliament in Edinburgh would be exceeding its remit – 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?

For whom it is preferable is indicated in his statement. As he calls for any referendum to be held as quickly as possible, his is 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 preferable from a Union perspective only.

Professor 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 with a unified government under a potentially worthless treaty. 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” Scotland’s laws. In effect it promised to uphold Scotland’s constitution.

This brings the Vienna Convention on Treaty law into play, with the UK being a signatory. Interestingly one country that Whitehall has authority to enter into treaties with is Scotland. Wales and N. Ireland are notable for their absence. 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.

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. Had Scotland been taken by right of conquest and not entered into a treaty this fact might not hold true.

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 reportedly 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 declared 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.

The best that London could hope for is a delaying tactic, which with incessant screams of “referendum now” 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 the 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. Alex Salmond would also have an irrefutable mandate for UDI under such a scenario; the only question is will he use it?

At day’s end David Cameron will decide the path Westminster walks after the Scottish referendum, however he may yet choose to dictate the path that our nation will follow up to that point, but in so doing he must tread with great care of he is to avoid his personal Rhodesia moment. Although none in the Scots government at Holyrood openly talks UDI, it would be foolish to think there aren’t contingency plans for almost every foreseeable eventuality.