Indyref 2: This time it's personal.

[LondonJohn]

It can make a referendum on whatever it want even the color of the paint on westminster's building.

What it cannot make is force the central gov to accept the result as binding. But if they do not, then it is certain to bring a crisis.

And so much also for "sovereignty" issue of brexit.

This is wrong. Referendums have constitutional significance. Referendums on independence have particular constitutional significance. The very act of holding a referendum is a matter of great significance - regardless of whether or not action is taken as a result of the outcome of that referendum.

I will refer back to the opinion of constitutional expert Dr Peter Catterall (who appears to have a clear understanding of the legality involved here, and who certainly has the qualifications and experience to inform his opinion accurately):

Scotland may have its own parliament, but to hold a national referendum it still needs permission from Westminster in London.

Dr. Catterall says: "The argument the UK government may put forward is that it needs to approve a second Scottish referendum and could, in theory, withhold the consent.

http://uk.businessinsider.com/brexit-why-scotland-will-not-get-an-independence-referendum-2016-6


And of course I also refer the reader back to the mechanism underpinning the 2014 Scottish independence referendum, where exactly this constitutional mechanism was activated: the Scottish government negotiated with the UK government, to the point reached by the "Edinburgh Declaration", in which the UK government announced that it would grant Scotland the power to hold an independence referendum, and also gave the assurance that the UK government would assent to Scottish independence if the majority outcome of that referendum was for Leave.

 

[Architect]

So Scotland is not currently a country under that international definition. That's......my point! Of course Scotland would become a country if it were to secede from the UK. And in exactly the same way, those other regions are not currently countries under the international definition. But - as I'm trying to point out - that absolutely does not preclude these regions calling themselves "countries" if they so desire. Just as many refer to "the Principality of Wales", whereas in 2016 Wales is no such thing in the proper definition of the term.

I suggest you reread the post and consider the points made therein as I'm not sure that you understand the distinctions being made.

The term "country" is not the one used in international law inasmuch as it has a variety of meanings depending upon context and is therefore not of assistance in moving the discussion forward.

The usual terms centre around statehood and sovereignty. Clear legal tests for these exist. Scotland meets a number of these tests, partially meets others, and does not meet some.

Your nine blokes down the pub meet none of the tests in any objective manner, and the reference is thus of no import to the discussion at hand.

To put this in perspective, Ireland (in the Eire sense) at the time of its independence (or at least move to Dominion status, as that area is all rather complex) met fewer of the tests than Scotland does at present, due to a variety of issues such as the late recognition of the movement for home rule and greater integration with the English legislative framework from a comparatively early date. This was not, however, an impediment to independence on the basis of clear popular support.

 

[Architect]

<snip>

I will refer back to the opinion of constitutional expert Dr Peter Catterall (who appears to have a clear understanding of the legality involved here, and who certainly has the qualifications and experience to inform his opinion accurately)

<snip>

Is Dr. Catterall your sole authority on the legality of a referendum without Westiminster approval?

 

[LondonJohn]

I suggest you reread the post and consider the points made therein as I'm not sure that you understand the distinctions being made.

The term "country" is not the one used in international law inasmuch as it has a variety of meanings depending upon context and is therefore not of assistance in moving the discussion forward.

The usual terms centre around statehood and sovereignty. Clear legal tests for these exist. Scotland meets a number of these tests, partially meets others, and does not meet some.

Your nine blokes down the pub meet none of the tests in any objective manner, and the reference is thus of no import to the discussion at hand.

To put this in perspective, Ireland (in the Eire sense) at the time of its independence (or at least move to Dominion status, as that area is all rather complex) met fewer of the tests than Scotland does at present, due to a variety of issues such as the late recognition of the movement for home rule and greater integration with the English legislative framework from a comparatively early date. This was not, however, an impediment to independence on the basis of clear popular support.

Aggh! This is the salient point here. Whether Scotland meets none of the criteria or almost all of the criteria.... provided Scotland doesn't meet ALL the defining criteria, it is not a country under that international definition!

I and my hypothetical nine mates hell-bent on forming an independent state meet far fewer of the defining criteria than Scotland, of course. But both Scotland and "the ten mates" fail the test. The fact that Scotland fails it by a relatively small margin and my nine mates and I fail it by a landslide makes not a jot of difference to the fact that we both fail the test.

 

[LondonJohn]

Is Dr. Catterall your sole authority on the legality of a referendum without Westiminster approval?

What an interesting and telling question!

Yes, he is currently my "sole authority", chiefly because a) his experience, qualifications and position seem to me to give his opinion pretty cast-iron validity and credibility, b) it chimes with my own reasoned understanding of the situation, and c) I haven't had the time or inclination to search for other authorities.

Why? Do you believe Dr Catterall is wrong in his opinion? If so, do you think he's based his opinion on either factual ignorance of the law/constitution or misinterpretation of the same?

And do you have any credible, qualified authorities who state clearly that it would be within the law for Scotland to hold an independence referendum without the assent of the UK government? If you do, maybe we can talk more on this matter.

 

[Architect]

Aggh! This is the salient point here. Whether Scotland meets none of the criteria or almost all of the criteria.... provided Scotland doesn't meet ALL the defining criteria, it is not a country under that international definition!

I and my hypothetical nine mates hell-bent on forming an independent state meet far fewer of the defining criteria than Scotland, of course. But both Scotland and "the ten mates" fail the test. The fact that Scotland fails it by a relatively small margin and my nine mates and I fail it by a landslide makes not a jot of difference to the fact that we both fail the test.

I am not at all clear on why you continue to make reference to the term "country" as being relevant to the legal position when I have set out the relevant terminology and tests which instead focus on statehood and sovereignty.

I see, however, that you make reference to an "international definition" for the term and therefore do wonder whether you are referring to a seperate legal test (or tests) which I am unaware of. it would thus be of assistance if, in seeking to frame your position, you provide further details of this.

Turning to your latter paragraph, you misunderstand the application or legal (or for that matter) policy tests, the purpose of which is to provide a tightly defined set of criteria as a bar for a decision. Whilst the result is an effective pass or fail, the extent to which the tests are met individually allows one to take a view on the action necessary and thus likelihood of them being met at some future point.

Hence Scotland or Catalonia meet a substantive number of the test criteria and are making moves, whether supported or not, the meet the remainder. 9 blokes down the pub, or Church Street Hartlepool, do not meet any of the tests and are unlikely to ever do so. From that perspective it is therefore reasonable to take a view.

 

[Architect]

What an interesting and telling question!

Yes, he is currently my "sole authority", chiefly because a) his experience, qualifications and position seem to me to give his opinion pretty cast-iron validity and credibility, b) it chimes with my own reasoned understanding of the situation, and c) I haven't had the time or inclination to search for other authorities.

Why? Do you believe Dr Catterall is wrong in his opinion? If so, do you think he's based his opinion on either factual ignorance of the law/constitution or misinterpretation of the same?

And do you have any credible, qualified authorities who state clearly that it would be within the law for Scotland to hold an independence referendum without the assent of the UK government? If you do, maybe we can talk more on this matter.

It is important inasmuch as in order for me to respond meaningfully to Dr. Catterall's point, I need to (a) understand what his detailed position is, (b) take a view on the expertise which he brings the table, and (c) what other views might be worthy of consideration.

So, for example, I think it would be inappropriate to depend upon the selected quotes in the likes of the The Week or The Daily Mail without seeing what the full text or interview said. The language in the section you quoted is far from definitive (my emphasis):

The argument the UK government may put forward is that it needs to approve a second Scottish referendum and could, in theory, withhold the consent

 

[Craig B]

So Scotland is not currently a country under that international definition. That's......my point! Of course Scotland would become a country if it were to secede from the UK. And in exactly the same way, those other regions are not currently countries under the international definition. But - as I'm trying to point out - that absolutely does not preclude these regions calling themselves "countries" if they so desire. Just as many refer to "the Principality of Wales", whereas in 2016 Wales is no such thing in the proper definition of the term.

To make your argument consistent and valid, Wales would need to become a Principality in the proper definition of the term if it were to secede from the UK.

Would it thereby become such a polity in your opinion?

 

[Architect]

Moving on from my last post, let me posit an alternative legal interpretation to whether the Scottish Government is empowered to carry out a further referendum.

The Scottish Government proposes to pass an Act to allow it to honour the manifesto promise to hold a referendum on independence at an appropriate time or, more realistically, in response to the change of circumstances caused by Brexit. The legal basis of Scottish devolution is such an Act would be lawful unless expressley prohibited by the terms of the Scotland Act (1998).

However the holding of referenda is not prohibited and so is legally competent. The claim against lawfulness proposed by the Unionist parties would presumably be that the proposed referendum “relates to” the Union (s.29(3), if you want to check). The argument would therefore be that an Act to hold a referendum would, in itself, have an effect on the Union.

However that's as incorrect as the 9 blokes analogy we saw earlier. The solitary effect of such legislation or other instrument is to provide for the holding of a referendum is - obviously - the holding of that referendum. The Act would have no other effect, at all. Even the result of the subsequent referendum would not have an effect.

Only a further Holyrood Act, presumably following a "yes" vote, purportedly dissolving or amending the terms of the Union would have an effect. Such an Act would, in very clear terms of the 1998 Act, be ultra viries. As a matter of the Act establishing it, the Scottish Parliament could not, even following a "yes" vote, unilaterally dissolve the Union.

In assessing the "effect" of the proposed Act we might also wish to consider the effect of a “no” vote? There answer is, of course, none at all. I am minded here to merely say "sauce for the goose".

The effect of an Act providing for a referendum to be held is, therefore, simply that the referendum takes place. The electorate get a chance to express a view. [FONT=&quot]Governments do not change, UDI is not declared, Scotland does not magically join the UN and enter into treaties. It is difficult to see how it could be denied, on a balanced view, that this reading of the proposed Act would be "possible".

Because all we seem to have are the abbreviated quotes from Dr. Catterall, we don't know whether he really does think that Westminster consent is required, or indeed whether he addresses the hypotehtical mechanism for a consultative referendum which I set out here. We're guessing. And that really isn't what self-proclaimed critical thinkers should be doing.
[/FONT]​

 

[Architect]

To make your argument consistent and valid, Wales would need to become a Principality in the proper definition of the term if it were to secede from the UK.

Would it thereby become such a polity in your opinion?

As an aside, but in a similar vein, I found myself musing as to Finnish independence, which did not really occur until 1917 and even then with some significant restrictions.

Finland had been either part of Sweden or Russia for much of the modern period - specifically a Grand Duchy - and of course was defined linguistically as well as ethnically. Nevertheless it made the transition to statehood and is recognised as such (and a republic at that). They did, mind you, end up having to fight both sides in WW2.

If we apply the argument (or perhaps train of thought) apparently being presented by some posters here, the people of Finland would have required the permission of the people (or at least government) of Russia. That argument just doesn't make sense, as far as I can see.

 

[Archie Gemmill Goal]

I think I'm correct in saying that it cannot (in law) hold a referendum on Scottish independence. It can certainly hold a referendum on matters over which it has jurisdiction. But independence is explicitly not one of those matters - unless and until the UK government devolves this area of jurisdiction to Scotland. Without that, the very act of organising and holding a referendum on independence would be in breach of constitutional law.

No it cannot legislate on constitutional matters but it can certainly hold a referendum on them. A referendum is nothing more than a jumped up opinion poll after all.

In any case the distinction is largely pointless since the only situation that it becomes relevant is one where Westminster is denying the right to hold the referendum and therefore the constitutional approach to independence is being denied. So non-constitutional action would be the only action open to them.

See, you continually come at this issue from the PoV of "the UK government refusing to accept the will of the Scottish people",

Because that's the only situation where the scenario needs to be discussed. You don't need to have a non-constitutional approach if the UK government are playing along.

and similar confrontational rhetoric.

Like Scotland isn't a country? Like regional government? Who is peddling the confrontational position again?

Firstly, I would argue that the UK government is sufficiently sensible, pragmatic and fair to realise that if it is the true and (reasonably) settled will of the majority in Scotland to become independent, then it would almost de facto be in the best interests of the whole of the UK for that to happen.

Then why on Earth spend pages and pages insulting people and insisting that they can stop it if they want to? When you yourself admit that would be not sensible, not pragmatic and not fair and no in the best interests of the UK.

It most assuredly has not "been shown to me". Each of the recent ICJ rulings on UDI make specific and explicit reference to the background situation, in terms of matters related to repression (freedom of speech, freedom of assembly, freedom of representation, freedom to express culture, freedom of press, economic equality, use of force by the parent state, etc) in reaching its verdict. And I'd also argue that the very statement by the ICJ that UDI is not automatically illegal in international law points to the inference that it is legal under certain conditions and circumstances.

What rulings are you referring to? Certainly you've been shown this was not the case for Kosovo. The ICJ were explicit in saying that international law contains NO prohibitions on declarations of independence. And while Kosovo was historically oppressed by Serbia this was not key to the ICJ judgement

 

[Archie Gemmill Goal]

Do you believe Dr Catterall is wrong in his opinion?

Dr Catterall is not here to give his opinion or explain it. It's entirely possible that it is simply missing the word 'binding' somewhere along the line.

 

[erwinl]

What I'm missing in this, admittedly fascinating, discussion concerning a possible Scottish independence is the following.

There is a further test to see whether a nation/country is an independent state and that is whether it is recognized as such.

If, just if, Scotland would declare itself independent, because enough of its people want that, and enough other countries recognize that independence, then it doesn't matter what the rest of the UK says. Scotland would be independent.
Now of course they (rump UK) could stop things, but really the only option at that point would be violence. A bit like the falling apart of Yugoslavia.
Now that was a bit of a mess (to be very conservative with the words) but it did set a precedent.

So the question would be. How desperate or willing would rump UK be to keep Scotland against the Sottish will in its fold? Enough to kill people for it? That is ultimately the question.

 

[Strawberry]

What I'm missing in this, admittedly fascinating, discussion concerning a possible Scottish independence is the following.

There is a further test to see whether a nation/country is an independent state and that is whether it is recognized as such.

If, just if, Scotland would declare itself independent, because enough of its people want that, and enough other countries recognize that independence, then it doesn't matter what the rest of the UK says. Scotland would be independent.
Now of course they (rump UK) could stop things, but really the only option at that point would be violence. A bit like the falling apart of Yugoslavia.
Now that was a bit of a mess (to be very conservative with the words) but it did set a precedent.

So the question would be. How desperate or willing would rump UK be to keep Scotland against the Sottish will in its fold? Enough to kill people for it? That is ultimately the question.

I think the answer to that question is definitely yes, they would be willing to kill for it if they thought that would work.

 

[erwinl]

I think the answer to that question is definitely yes, they would be willing to kill for it if they thought that would work.

Maybe, maybe not.
And how far would the ordinary population of rump UK (just for the record. you heard it here first) let their government go?
Slovenia type? Bosnia Herzegovina type? more? Or something in between?
Maybe a few of the resident non Scottish UK'ers would like to say.

 

[Strawberry]

Maybe, maybe not.
And how far would the ordinary population of rump UK (just for the record. you heard it here first) let their government go?
Slovenia type? Bosnia Herzegovina type? more? Or something in between?
Maybe a few of the resident non Scottish UK'ers would like to say.

As a resident non Scottish UKer, I think they would hand the dirty work to Scottish unionists to start violence, and then the Westminster government would have to send in the troops to "protect the population", and there they'd stay with their guns pointed at the natives, just in case. It would be sold to the ordinary population of rUK as a necessary security measure.

If there was any sign of the population disagreeing with this, a few atrocities committed supposedly in the name of Scottish independence would soon quieten it down.

 

[erwinl]

As a resident non Scottish UKer, I think they would hand the dirty work to Scottish unionists to start violence, and then the Westminster government would have to send in the troops to "protect the population", and there they'd stay with their guns pointed at the natives, just in case. It would be sold to the ordinary population of rUK as a necessary security measure.

If there was any sign of the population disagreeing with this, a few atrocities committed supposedly in the name of Scottish independence would soon quieten it down.

Well. Thank you for being so frank.

 

[Giz]

As a resident non Scottish UKer, I think they would hand the dirty work to Scottish unionists to start violence, and then the Westminster government would have to send in the troops to "protect the population", and there they'd stay with their guns pointed at the natives, just in case. It would be sold to the ordinary population of rUK as a necessary security measure.

If there was any sign of the population disagreeing with this, a few atrocities committed supposedly in the name of Scottish independence would soon quieten it down.

This is nuts.

 

[LondonJohn]

As a resident non Scottish UKer, I think they would hand the dirty work to Scottish unionists to start violence, and then the Westminster government would have to send in the troops to "protect the population", and there they'd stay with their guns pointed at the natives, just in case. It would be sold to the ordinary population of rUK as a necessary security measure.

If there was any sign of the population disagreeing with this, a few atrocities committed supposedly in the name of Scottish independence would soon quieten it down.

Oh for god's sake! This is nothing more than hysterical (and perhaps wishful-thinking?) rhetorical garbage.

The ultra-nats in this debate are continually (and again, IMO, wilfully) missing the point that it would be very unlikely indeed that the UK national government would "refuse" to allow Scotland to hold an independence referendum (and to then declare independence from the UK if there was a majority Leave), provided certain reasonable conditions were met.

I've already opined that an example of such conditions might be something like: "No referendum until the negotiations for the UK's exit from the EU have been fully concluded, so that the Scottish people know what they would be getting if Scotland stayed within the UK; and no referendum until after at least three years of reliable independent polling showing support for independence in the majority".

The ultra-nats here almost seem to want the UK government to say "flat out no". That way, they could achieve what appears to be their dream: brave Scotland turning round and showing its bare backside to the English enemy, courageously forging ahead with their own future, decided by the "will of the people", and watching and laughing as "England" could do nothing to stop them.

The reality and realpolitik is, of course, massively different. If there's sustained majority will in Scotland for independence, and (in a condition which I believe is likely to be insisted upon by the UK government, and which is entirely reasonable to any objective observer) the Scottish people wait until the outcome of UK Brexit negotiations to see what effect the new relationship between the UK and the EU might have on their desire for Scottish independence, then it's (IMO) very unlikely indeed that the UK government would ever seek to block a referendum or refuse to honour its outcome.

The ultra-nats also seem to think that the immovable position of the UK government must somehow be against Scottish independence, and that this will necessarily translate into refusal to grant a referendum/independence. And while Scottish independence certainly is against the desired ideological position of all the main Westminster parties, be in no doubt that pragmatism and fairness will outvote all of that if/when it comes down to it. One might, as some sort of an example of this apparent contradiction (which is not a contradiction at all in fact), state that all the main political parties in Westminster are against sending ground troops to a war in Syria - but it might just be, at some point, that the UK government (via parliament) judges that it is in the best interests of the UK to send ground forces to Syria.

In short, there simply WILL NOT be a scenario where the Scottish government holds a referendum without the necessary assent (and enactment of the appropriate amendments etc) of the UK government. Neither the Scottish government nor the UK government could possibly want such a situation to arise. There may well be protracted and heated negotiations over precise conditions, but I don't think anyone should be in any doubt that any future Scottish independence referendum will more-or-less exactly follow the process of the 2014 referendum: the UK and Scottish governments will, at some point in the future, make a joint declaration, in which the UK government will announce that it has agreed to devolve the power for a referendum to the Scottish government and that it will honour the outcome if there's a majority Leave vote (by passing some sort of "Independence of Scotland" act through parliament and into UK law).

 

[LondonJohn]

This is nuts.

Uhhh. Yep. I wonder what the other ultra-nat commentators on this thread think of it? Does it represent the ultra-nationalist position, or even the moderate-nationalist position?