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Showing posts with label the law and the referendum. Show all posts
Showing posts with label the law and the referendum. Show all posts

Saturday, 11 February 2012

Get the facts, Scottish voters!

The following represents my individual understanding, as a voter, of some essential facts about the background to the referendum vote in Autumn 2014. Since I am not an expert in any of the subjects covered, my understanding may well be in error: it is undoubtedly simplified. I speak for no one but myself.

I have tried to exclude any personal value judgements from the details set out below – I believe them to be factual, and not coloured by personal beliefs or political orientation. I am happy to accept correction of factual errors, but please don’t offer complex interpretation, since my objective is to contribute as an individual to my Voters in The Village initiative, and I want to keep it simple – but not simplistic.

I would ask particularly that you do not offer legal interpretations or views: almost everything to do with the referendum is contested by legal and other experts, all highly vocal – and in some cases abusive(!) – in their assertion of the absolute rightness of their particular perspectives.

The dilemma of the referendum voter will be how to decide between alternative legal, political and ‘expert’ views in deciding how to vote. Faced with conflicting views and interpretation of ‘facts’, ultimately the voter decision will be based significantly on belief and trust.

That’s democracy  - that’s life …

MY UNDERSTANDING OF ESSENTIAL FACTS ABOUT THE REFERENDUM

In early 1706, Scotland and England were two independent kingdoms with the same monarch and had been since 1603. (If Scotland becomes independent, Scotland and England would again be two independent kingdoms with one monarch – the Queen will be retained as constitutional monarch, as will her lawful successors.)

Following negotiations between England and Scotland, a Treaty of Union was agreed on 22nd July 1706. The English Parliament then passed The Union with Scotland Act in 1706 and the Scottish Parliament passed The Union with England Act in 1707.

The two acts took effect on 1st May 1707, and both the Scottish and the English Parliaments united to become the Parliament of Great Britain based in the Palace of Westminster. (The two Acts are referred to as the Union of the Parliaments.

IRELAND

Ireland, the third kingdom, was not included in the Union. Ireland was legally subordinate to England (until 1784) but had its own Parliament. It asked to join the new Union of Scotland and England, but was refused. It eventually was accepted into the Union (The UK) on 1st January 1801

Ireland was partitioned into two parts on 6th December 1922 by The Government of Ireland Act of 1920, Southern Ireland and Northern Ireland, known as The Irish Free State.

For a very brief period, Northern Ireland was no longer part of The United Kingdom, but was given the right to opt out of the Irish Free state and did so on 13th December 1922. In 1937, The Irish Free state was renamed Ireland, then in 1949, The Republic of Ireland.

WALES

Wales was conquered by England in 1282, had a brief period of independence early in the 14th century, but then was re-conquered and under the Laws in Wales Acts of 1535-1532 became completely part of the English legal system and Parliament.

DEVOLUTION

Scotland voted in a referendum for the creation of a Scottish Parliament in 1999.

Wales voted in a referendum for the creation of The National Assembly of Wales in 1999.

The Northern Ireland Parliament dates from home rule in 1920/22, and is now the Northern Ireland Assembly and the Northern Ireland Executive.

Scotland has certain devolved powers under the Scotland Act but many power are reserved to the Westminster Parliament (The UK Parliament). The Westminster Parliament is sovereign, i.e. only Westminster can devolve powers and only Westminster can amend the Scotland Act. Westminster can add devolved powers or revoke those already granted.

THE REFERENDUM

A referendum is a direct vote in which the total electorate is asked to accept or reject a direct proposal, usually one of major significance. It is direct democracy, as opposed to elective democracy, where elected representatives then vote on issue in on behalf of their constituents.

Referendums are binding in some countries – in certain circumstance they can be mandatory - but not in the UK. In the UK, a referendum is neither mandatory nor binding, but the result is usually respected by government.

Only two referendums have involved the entire UK electorate – The UK European communities membership referendum in 1975 and The UK Alternative Vote Referendum 2011

A devolution referendum for the creation of a Scottish Assembly was held in in 1977. The vote was 52% to 48%, with 63.6% of those eligible to vote (the turnout) casting their vote. This meant that 32.9% of the electorate had voted yes, and since a condition of the referendum was that at least 40% of the electorate must vote, The Scotland Act 1978, designed to introduce devolution, was repealed.

The Scottish Parliament Referendum the devolution referendum – was held in September 1997. 44.87% of the electorate voted and 74.3% of those voting voted for devolution. This means that 33.34% of those eligible to vote voted for devolution.

A referendum on the independence of Scotland will be held in the autumn of 2014. Autumn 2014 starts on the 23rd of September. The earliest date for the referendum is therefore 23rd September 2014, and the latest date is 20th December 2014.

The referendum will be a consultative referendum and will not in itself bring about independence. The Westminster Government and the UK Prime Minister have already confirmed that if the Scottish electorate vote for independence, the UK government will accept this outcome and will negotiate with the Scottish Government on the terms of independence. The negotiations are likely to take years to finalise.

The Scottish Government has an anti-nuclear weapons policy, and if the Scottish electorate vote for independence, nuclear weapons systems – i.e. the Trident weapons system - will be removed from Scotland and Scottish waters.

The anti-nuclear policy extends to any defence alliance committed to nuclear weapons. An independent Scotland will withdraw from NATO, but liaise with NATO through Partnership for Peace, a non-nuclear alliance involving other European countries.

An independent Scotland would have its own defence forces and its own foreign policy, and will participate in appropriate alliances and coalitions with other countries as circumstances dictate.

An independent Scotland will be a member of the European Union, but will not join the euro: it will continue to use sterling as a tradable currency, and will operate in a currency union. The Bank of England is independent of the UK government and sets its own interest rates and policy. England, Wales and Northern Ireland will continue to accept the Bank of England in that role. Scotland will accept the Bank of England as the central bank in a currency union until such time as it decides to change to another currency. It is highly unlikely that this could happen within a decade.

Wednesday, 11 January 2012

Scotland’s independence referendum–the law and the Supreme Court

An extract from what I had to say on the law and Scotland on 13th October UK Supreme Court - constitutional and independence implications

This also contains links to a number of earlier blogs on Scottish Law and the Supreme Court – see URL links.

EXTRACT

Thursday, 13 October 2011

In the light of the recent UK Supreme Court judgment (I spell it judgment against my instincts towards judgement because I believe this is legal practice) and certain remarks about what the Scottish Parliament can and cannot do - which some have interpreted as a shot across the SNP Government’s bows in relation to the referendum - a number of correspondents have asked me if I plan to comment. Firstly, this is properly Peat Worrier’s blog territory, and secondly, I have said pretty much what I wanted to say about the UK Supreme Court in the following blogs -

The UK Supreme Court and the Scottish legal system

The UK Supreme Court–FMQs 16th June 2011 – Holyrood

The UK Supreme Court, the judges–and the Union’s future

The UK Supreme Court–the debate polarises and takes on new dimensions

DAVID CAMERON’S STATEMENT, COMMONS DEBATE 10th Jan. AND SUBSEQUENT FALLOUT

I am not a lawyer. Fortunately, nationalists have a lawyer who blogs – Lallands Peat Worrier, who recently outed himself on television, revealing a long-haired young man – Andrew Tickell who was not at all like the image built up by many readers of his superb blog, who may have fondly imagined him, as I did, as a crusty old Edinburgh lawyer in a old leather armchair, with whisky in hand.

Anyone who wants an informed and authoritative account of the law as it relates to Scottish and UK affairs, independence and referendums should go to his blog Lallands Peat Worrier

My perspective of the law as it affect Scotland’s independence is that of an informed voter, with a special knowledge of negotiation and the dynamics of reaching agreement in situations of conflict, especially ones that are defined by formal and perhaps legally binding agreements and contracts. In other words, my expertise lies in defining how a party to a dispute should regard the law and how that party or parties may - or may not - use the law to resolve disputes, i.e. a client perspective.

FUNDAMENTALS AS I SEE THEM

The law as it applies to political and constitutional matters is a very different beast to the criminal law and civil law, especially when that law reaches beyond the nation state, e.g. European Law, international law and human rights legislation.

The issue between Scotland and the UK involves Scottish Law, UK Law, especially as it relates to devolution, European Law and potentially international law.

Two ancient legal systems exist side by side, and have done for over 300 years in the United Kingdom. The Union made one aspect of that law supreme across the UK through the UK Parliament, Westminster. Scotland has its Parliament and its devolved administration by courtesy of that law, The Scotland Act, and the extent of the Scottish Parliament’s powers are determined by that Act, and can be altered or revoked by the UK Parliament.

The UK and Scotland are also bound by European law and by the European Human Rights Act and the European Court of Human Rights at Strasbourg.

Until the establishment of the UK Supreme Court, appeals on certain matters of law went to Strasbourg. The UK Supreme Court was set up to provide a UK Court of Appeal on Human Rights matters, but also to rule on constitutional matters.

It was no coincidence that the UK Supreme Court was set up with such powers at the same time as the Westminster Government became aware that the independence of Scotland had become a very real possibility, with huge constitutional implications.

Scotland’s wish to be independent means that it wishes to be independent of all UK law, and therefore of the UK Supreme Court. But that system of law, and specifically that court – the UK Supreme Court - can restrict or frustrate Scotland’s attempts to be secure its independence – or at least, it can attempt to do so.

It can be argued that it was set up at this time to permit it to do exactly that, and no amount of high rhetoric about the rule of law can obscure that stark possibility. All the indicators in the dispute that has built up since the UK Prime Minister’s ill-judged intervention into Scottish affairs tend to support that conclusion.

That is not to say that the UK Supreme Court would accept this attempt to politicise its role – one can hope that they wouldn’t - but remember the the UK decided to go into an illegal war in Iraq on very dubious grounds, based on legal advice at the highest level, advice that was changed at the last moment.

The message is – We, the UK Government, will use the legal system that Scotland’s independence seeks to be free of to control and limit its right to consult the Scottish people. Unless Scotland accepts the UK Parliament’s conditions for the referendum and its right to control and monitor it with its own designated bodies, the UK Supreme Court will be used to challenge, delay and block the referendum, and declare it illegal.

In other words, the interest group that wants to keep Scotland in the Union, and bound by this framework of law, will attempt to use that law to stop Scotland from determining whether the voters of Scotland wish to remain a part of that legal system.

Of course, all of this mumbo-jumbo is cloaked in language that suggest that the UK has Scotland’s best interests at heart, and that they wish to facilitate the referendum. No one who watched and listened to all of yesterday’s one-and-a-quarter hour debate in the Commons could seriously entertain such a proposition.

This is a stark, high-stakes political game, with the law being used as a tool in that game to maintain the dominant power structure.

The UK Government -

- did not want a Nationalist Government – the devolved settlement and the electoral system were specifically designed to prevent nationalists from ever gaining power

- did not want a referendum at all, and frustrated attempts by the minority Scottish Government to call one in the last term of SNP Government

- now, faced with the inevitability of a referendum being called, the UK Government wants it to be held at a time and in a manner that will ensure that independence is rejected, and are willing to use the law and specifically the new UK Supreme Court to block or delay the referendum if their conditions are not met.

The Scottish Government, in contrast, wants to hold the referendum on their timescale, identified broadly in the election campaign as the second half of the Parliamentary term, and now specifically confirmed as Autumn 2014, with the Scottish Government determining the timing, eligibility to vote, the questions and the question formulation. They also want to win.

This is not a legal dispute – it is naked power politics, with a willingness to use the law to further the political objectives of each party to the dispute.

But the SNP Government can claim the moral high ground, because their wish is to determine the will of the Scottish electorate democratically, and to accept their verdict.

The last thing the UK Government want is to allow the Scottish people their voice, because the Scottish people have decisively rejected the two parties that now constitute the UK Government.

The last thing the Labour Party wants is for the voice of the Scottish people to be heard, because the Scottish people decisively rejected them on May 5th 2011, as the people of the UK decisively rejected them in May 2010.

The UK Labour Party will have a dismal future when Scotland becomes independent. All Scottish Labour politicians (MPS) in Westminster (and all Scottish Tory and LibDems MPs) would become redundant overnight, Scottish Lords would be in a very strange place indeed, and only Scottish Labour politicians in Holyrood, i.e. MSPs, would have a political future, and perhaps a bright one, in the new Scotland.

Some are beginning to recognise this.

COMMERCIAL AND CIVIL ANALOGIES

Consider what happens if a breakdown occurs in a a civil contract of long duration. Firstly, let it be clearly stated that it does not take both parties to end the relationship – it only requires that one is determined to end that relationship. The only question then is the manner in which the relationship is ended. It can be done amicably and legally by agreement and by observing the previously agreed terms of the relationship, or one party can simply walk away unilaterally, leaving the other party to determine how they will react.

The other party cannot stop the relationship ending – they can only attempt to penalise the party walking away, by either invoking legal penalties provided for in the original contract, or attempting to secure damages by law.

Ideally, parties negotiate the terms of the breakup without invoking the law, or perhaps use the law to assist in the negotiations and the drafting of the agreed settlement.

The decision on whether or not to use the law in such dispute is made by the parties to the dispute, unlike under the criminal law, where if a breach occurs, the prosecuting authorities may decide to invoke the law whether or not the parties agree.

(If I murder another person, the decision to invoke the law and to prosecute does not lie with the dependants of the deceased. If I rob a bank, the bank can’t decide to let me off – a crime has been committed and the law will act regardless of the will of the parties.)

The way in which disputes over the independence of nations are resolved follow loosely the same principles – independence can be achieved by negotiation, with reference to the law, it can be achieved by force, ignoring the law – i.e by revolution - or it can be achieved by UDI – a unilateral declaration of independence. If this is not challenged, it is called a velvet revolution, e.g Slovenia.

There is are abundant historical examples of countries achieving their independence, some very recent, many from the British Empire, and there are current examples that are works in progress, e.g. the Arab Spring.

Of one thing you can be sure – the law will not be the key determinant in Scotland’s future – it will be the will of the people, and, I hope, the good sense of the politicians, with minimal reference to the law.

Read my previous blogs (see links above) for more information. If the law itself interests you, read the estimable Lallands Peat Worrier.

Saor Alba!