Friday, October 21, 2016

No, the Westminster government cannot prevent Holyrood from voting on whether there should be an independence referendum

In case you're wondering, the story that appeared on the Courier website last night about the draft indyref bill is a monumental red herring.  Basically the claim was that the Scottish Government wouldn't even be able to table the bill at Holyrood without London's "permission", because the Presiding Officer might not certify it as being within the parliament's powers.  But it doesn't actually matter whether that's true or not, because the introduction to the draft bill states this -

"If the Scottish Government decided to formally introduce this Bill to Parliament, it would be expected that a section 30 order would be sought and agreed, as in 2014."


The most reasonable interpretation of those words is that a section 30 order would be sought and agreed before the bill is formally introduced.  No parliamentary vote is required for the Scottish Government to simply pick up the phone to London, but as there have been speculative (and utterly hopeless) mutterings about a "lack of mandate", the likelihood is that a symbolic vote would be held to put beyond any dispute that a referendum is the will of the directly-elected Scottish Parliament.  In contrast to the rules on legislation, it is possible for Holyrood to debate and vote on motions relating to absolutely any subject, even one that has nothing whatever to do with the parliament's current powers.  Previous examples include the Iraq War, unilateral nuclear disarmament, and the principle of independence.

It's also not the case, as our resident troll Aldo tried to claim yesterday, that the draft bill "reveals" that Westminster's permission is "required" for any independence referendum to take place.  Quite the reverse, in fact.  The bill notes that the purpose of the section 30 order last time around was simply to "put it beyond doubt" that the parliament had the right to legislate. The clear implication is that even if the London government were stupid enough to try to stand in the way, it might well still be possible to hold a consultative referendum without a section 30 order - albeit the question would probably have to be very carefully framed. The legal expert Professor Robert Black has stated that this would be a viable option.

If all else fails, of course, there's still the nuclear option that we've discussed a few times on this blog - the Scottish Government could resign and trigger an early Scottish Parliament election. That election would have one of two functions - either a) to gain a "double mandate" for a referendum just to ram it down Theresa May's throat that the mandate exists whether she likes it or not, or b) to gain an outright mandate for independence itself. The latter would be achieved by the SNP (and probably also the Greens) putting the necessary wording in their manifesto.

31 comments:

  1. There is, of course also the "thermo-nuclear" option, which is that if May decides to abrogate the EU Accession Treaty of 1972 using perogative powers rather than a parliamentary repeal of the Act, and gets away with it, the FM can use those same perogative powers to abrogate the Treaty of Union of 1707 :-)

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    1. Would those be the prerogrative powers that might not even exist in Scotland due to them not existing at any point in history. The ones that Westminster rather than the Prime Minister or even the "Government" as she puts it have to vote on as ending a treaty is involved.

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    2. While I would agree these Royal powers are of English origin, the use of them by the political State is more recent, and occurs AFTER the Treaty of Union. It may then be argued that the "Powers" having moved from Royalty to the political State, then the "Powers" are then at the disposal of the legal jurisdictions which form that political State.
      In other words it must have moved from Royalty, to BOTH the English and the Scottish legal framework which form the United Kingdom as a LEGAL entity.

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    3. The Royal Prerogative is explicitly NOT reserved by the Scotland Act.

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    4. Correct. And that amuses me no end.

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  2. Indeed and it was always agreed even by Thatcher that a WM majority for the SNP in Scotland was a mandate for indi!

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  3. Nuclear or not, the energy is flowing in the SG's favour.

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  4. "The undecideds and the bottlers will put it in the back of the net for 'remain'. I'm sure Cameron also has a few tricks up his sleeve to deploy in the dying days of the campaign."

    Aldo

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  5. There is also the international conventions on self determination.
    Westminster cannot acknowledge the right of Scottish self determination in 2014 and reject it in 2018.
    Either we have that right or we don't.
    This time,the EU will be backing Scotland and not Westminster which would leave London even more isolated in the world community.
    Even their boss in Washington is very displeased with their isolationist xenophobia and would not look kindly on actions seen as anti democratic especially when they are trying to do a trade deal with the EU.
    England's bid for "independence" from the EU has completely changed everything and leaves Westminster in a much weakened state.

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  6. But but but... surely Ruth Davidson can't be wrong when she said:

    “You don’t get a referendum for free, you have to earn it. So if the Greens and the SNP – and the SSP or any of the other parties who’ve declared an interest in independence – get over the line and can make a coalition, make a majority, get the votes in the Parliament, then they’ll vote through a referendum, and that’s what democracy’s all about… it’s perfectly simple”

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  7. On timing of Indyref2? Surely to benefit Europe's negotiators, Scotland becoming independent would have to come as early as possible during the article 50 two year negotiation period?

    Would it not make sense and be completely legitimate for Europe's Brexit team to say to Scotland 'we recognise your decisive vote to remain as European citizens and would be happy to have you remain as full members of the EU in place of the exiting rUK BUT in order to avoid your current UK government negotiating you out of the the EU as part of their article 50 negotiation strategy we will need know your position re independence by the end of 2017'

    For example, much is being made of how much more the EU market 'needs' the UK than the UK needs the EU. If Scotland's market (which I believe is one of England's largest trading partners) were to suddenly be removed from the UK and added to the EU side of the trading equation I am sure this would certainly strengthen the EU negotiators hand. Same for fishing, energy, life sciences etc.etc.

    In fact, if those Brexit negotiations were carried out by the UK on our behalf and then we vote for Independence and remain within the EU at the last minute surely a great deal of those rUK negotiations would become null and void.

    It also changes completely the argument from Indyref1 that England is Scotland's largest market but Scotland is only England's (from memory) 3rd largest market, therefore Scotland should somehow fear England come Independence. Scotland's market (as part of the EU) may well be England's largest trading market. Can't wait to sell that on the doorstep :-)

    I think that one of the major differences between Indyref1 & 2 is that we now have a very, very large third party involved with legitimate self interests in the timing and result of any Indyref2 decision. This is why I think it could be entirely possible to have a stream of European leaders serenading Scotland from the steps of Bute House very soon after Theresa May hits the button on Article 50. Until then UK is still a full member state whose interests have to be considered. After Article 50 they are opponents that need to be negotiated against! This is why Theresa May tried so hard last night to underline the UK's status as full active members throughout the coming two year article 50 process (and why it was received so badly by the 27 remaining members).

    braco

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    1. Well.that all makes sense. So i am sure they will ignore it.

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    2. I think it is mostly about ensuring that the EU position isn't allowed to change between now and the formal exit announcement.
      I.E. ensuring their current veto is maintained until formal negotiations commence.
      In practice,they can't stop informal meetings happening without their presence,which is already the case but it is an attempt to hold the present line.
      They (Westminster) are not in a good place.

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  8. Glasgow Working Class 2October 21, 2016 at 6:48 PM

    You lot of fash have given up on democracy.

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    1. “You don’t get a referendum for free, you have to earn it. So if the Greens and the SNP – and the SSP or any of the other parties who’ve declared an interest in independence – get over the line and can make a coalition, make a majority, get the votes in the Parliament, then they’ll vote through a referendum, and that’s what democracy’s all about… it’s perfectly simple”.

      Eat your cereal.

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    2. Glasgow Working Class 2October 21, 2016 at 10:08 PM

      You will lose if there is another referendum then you will want another. The taxpayer paying for your fun.

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    3. Eat your cereal.

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  9. Glasgow Working Class 2October 21, 2016 at 8:36 PM

    The SSP, who are they now since gorgeous big Tam left. We could have a monthly referendum at taxpayers expense until you fash win. At least those attending foodbanks will be free, poor and skint. But being free will make them feel better as hand out food will taste better.

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    1. I'm amazed at the number of economist professors littering the internet (overlooking for now the joke about how economists have predicted 5 of the last 3 recessions). So unionists are very sure Scotland's economy would go down the pan (or further down the pan). However, I never hear them putting much flesh on the argument such as: well, of course in the previous cases of independence such as Slovakia, or Croatia, or Slovenia, economic contexts are completely different because ... In fact, outside of the fact that independence often, though not always, takes place in positions of crisis (economic or otherwise), I sometimes wonder if unionists would say, sure, another 20 years of Westminster rule and I'll be up for indy. Doubt it. They'll be happy with the most powerful devolved parliament in the world (sic) getting blamed for it all and continue to believe Scotland couldn't run a piss up in a brewery.

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    2. Glasgow Working Class 2October 21, 2016 at 10:04 PM

      It would be an expensive brewery piss up if the Nat sis get their way with price rises giving larger profits to the supermarkets.

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    3. Do you know, I always thought that looming price increases in the supermarkets were the result of the collapse in the pound since England voted to leave the EU. I am extremely distressed to learn that it's actually MY fault because I voted along with most other Scottish voters NOT to leave the EU.

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    4. gwc2 - please take your Britnat si medication, your childish rants are so pathetic - why not just let the grown ups have a sensible debate?

      "Nurse......"

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    5. Glasgow Working Class 2October 21, 2016 at 11:54 PM

      Buy an extra can it helps distress and you wake up in the morning and have another can. Life is great in Scotland and the Union. German beer ist good also at 5% proof followed by Bratwurst und Kartoffelen mitt salat and you wake up in the morning and have another Kolsch. Better in the EU.

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    6. Such overwhelming proof of your consistent inanity in that last post, never mind the medication just bring a Britnat si straitjacket for gwc2 . Hang on, do they make them in child size??

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    7. Glasgow Working Class 2October 22, 2016 at 1:23 AM

      You are rubbing yer chest and smiling tae yerself with that last post. Ye hiv tae laugh. Fold yer shorts now Nat si bhoy before ye hit yer scratcher.

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    8. We shouldn't underestimate the drip drip effect of constant and stark contrast between pro European SG engaging with EU and fractious, xenophobic Westminster. This will be the daily impression forming in people's minds from next April onwards.

      I thought the analogy of a divorcing couple from one EU leader (who?) was apt: the UK is like the husband who wants the split up but demands "full marital relations" until he actually moves out. Well neither the EU nor Scotland will want to continue being shafted by the rUK from the minute Article 50 is triggered.

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    9. The sockpuppet tory twat of a troll doesn't have a fucking clue about scotlandOctober 22, 2016 at 9:06 AM

      "The SSP, who are they now since gorgeous big Tam left."

      Again, precisely what part of scotland are you pretending to be from?

      Kingston upon Thames?


      Nobody in scotland has EVER called him "big Tam" you clueless tory twat.

      ROFLMFAO!

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    10. Glasgow Working Class 2October 22, 2016 at 10:49 AM

      I live in the same Tartan Tory held constituency as Big Tam ya Nat si prick.

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    11. The sockpuppet tory twat of a troll doesn't have a fucking clue about scotlandOctober 22, 2016 at 4:03 PM

      No ye fucking don't sockpuppet and it's no exactly hard tae tell.

      Piss off back to Stormfront Lite you lying tory twat.

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  10. I think that the time has come for UK to part company. There is an obvious difference in the way each country wants to go. Its unfair on each country really and I think they should be free to govern indavidually as independant countries.Nobody can deny the amount of bullshit which has been spouted previously, recently and currently from both sides.Whats in the past is in the past lets embrace the future thought of independance for each nation, forget all the crap and start a fresh as independant and good friends. I see no problem with that.

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