Weekend essay: The right to decide
The referendum on Scottish independence has raised more than a question on what the future constitution of the United Kingdom and Scotland will look like – it’s raised an issue of who should have the ability to decide. This is a far more fundamental point, and the core principle of democracy that we hold dear is dependent on the outcome.
In 2014 Scotland will decide to maintain the UK or to dissolve it. The possibilities that stem from the decision will shape our future, but a battle is currently raging between power and democracy for control of that choice.
Democracy depends fundamentally on the minority accepting the wishes of the majority, but first requires that it be established what it’s a majority of. Numerous commentators have raised the objection that since a vote for independence would affect the entire UK, then residents of England, Wales and Northern Ireland should also be entitled to vote. Others have raised the issue of whether Scots not currently resident in Scotland should be part of the franchise.
To find out who should properly decide the outcome of the referendum, we need to look at the agreements whose continued existence is at stake, ie the Treaty and Acts of Union themselves.
In 1706 and 1707 when the English and Scottish Parliaments respectively considered the Acts before each of them, the terms of the proposed treaty were that upon union both countries together would form Great Britain and a new parliament would be created, which currently sits in the Palace of Westminster.
A crucial aspect of the agreement was that there were two signatory parliaments – the Scottish Parliament in Edinburgh, and the English Parliament in London. The treaty itself (as opposed to the Acts ratifying it) is a treaty under international law – that is, it’s neither under Scots law nor English law. It contains no provision for the abolition of either England or Scotland, nor either of their parliaments. When the Union was enacted the Scottish and English parliaments were officially adjourned, not dissolved. The Scottish and English people each retained their separate education systems, churches, laws, police, judiciary and healthcare, and still do to this day.
One of the main issues that must be addressed in determining the franchise stems from the fundamental difference between the Scottish and English views of monarchy. In Scotland the Queen is known as Her Grace Queen of Scots (the pertinent point being that she’s Queen of the people, not the land), whereas south of the border the correct title is Her Majesty Queen of England. The English system saw the power of the monarch as divine ruler transferred to the English Parliament where it would be wielded to rule the population, but in Scotland the people retained the power of sovereignty and would select a parliament to act on their behalf, with the monarchy serving to protect the nation. The distinction is highly significant.
So as Scots Law remained in force after the Union, it meant that the people remained sovereign in Scotland and did not surrender that sovereignty to the new Westminster parliament. This continuation of Scottish popular sovereignty was noted by the Lord President, Lord Cooper, in 1953 when he decreed:
The bulk of the text of the Acts of Union concern things which the Westminster Parliament may not do. The Acts of Union no more transferred Scottish sovereignty to London than the Treaty of Rome transferred it to Brussels. The status of the Scottish electorate was reaffirmed in living memory by the Scottish Constitutional Convention, which asserted ‘the sovereign right of the Scottish people to determine the form of government best suited to their needs’.
It may seem like a small matter of definitions, but it has huge implications on the validity of self-determination since Westminster is a joint parliament, set up after the English and Scottish Parliaments were adjourned, and based on two legal systems. The Treaty of Union is an international treaty between two nations, and as it makes no provision for its subsequent alteration by Westminster, it cannot be amended – only annulled – as there’s no longer an English Parliament to negotiate with its Scottish counterpart. Since the resumption of the Scottish Parliament in 1999, Scotland has regained in practice what it always had in theory and what England still lacks – the right to unilaterally withdraw from, and thereby cancel, the Treaty at any such time as the people express the desire to.
This fact is disputed by Unionist politicians who insist that Holyrood has no legal power to conduct a referendum. But although the “right” to hold a referendum may reside with Westminster under Westminster’s own rules, self-determination of governance is in international law a basic human right (stipulated by the International Court of Jusice as one held by peoples rather than governments), which by its nature cannot be legislated against.
(It’s a bit like Marks & Spencer putting up a sign saying “No Returns On Sale Goods” – they can say it as much as they like, but statutory consumer rights over-ride it, and you can return anything you bought in a sale on exactly the same terms that apply to any other purchase. However many notices they pin up on their doors, M&S simply don’t have the power to supercede the law of the land. Otherwise they could choose to sell heroin and landmines over the counter if they felt like it.)
The United Kingdom, and its constituent parts by proxy, are signatories to the United Nations Charter and as such any action to impede or deny the people of Scotland a right to vote would be in contradiction to the obligations to uphold self-determination. Article 1 in both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) reads:
The United Nations Universal Declaration of Human Rights (Article 15) further states that everyone has the right to a nationality, and that no one should be arbitrarily deprived of a nationality or denied the right to change nationality. Further to this, the UN commissioned studies on the right to self-determination, which set out factors that give rise to the possession of the right to self-determination and are the organisation’s benchmarks. These are:
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a history of independence or self-rule in an identifiable territory
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a distinct culture
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a will and capability to regain self-governance
Scotland is a distinct country with its own traditions, national dress, land and sea borders, health service, legal establishment, education system, flag and a history of nationhood that, as we’ve seen, was not discarded by the Acts of Union in 1706 and 1707. So beyond any reasonable debate, it qualifies under all three criteria (the Scottish Parliament representing the “capability” section), and any attempt to frustrate the people’s right to self-determination will find itself on the wrong side of both domestic and international law.
Denied the prospect of blocking the referendum entirely by the SNP’s unexpected majority in the 2011 election, the Unionist camp has changed tack, and is now seeking to control the timing, question(s) and what would denote a “clear” result. (For example, a few weeks ago Michael Moore announced that the results of the UK government’s consultation on “The Referendum on Separation for Scotland” meant that the poll should comprise only one question, even though the Scottish government’s own consultation was still in progress and had many times more responses.)
Consultations notwithstanding, the efforts currently being made by Scottish civic society to have a “devo-max” option added to the ballot paper are highly unlikely to succeed. Given the reluctance to devolve even relatively small issues such as excise duty or Air Passenger Duty, the UK government seems unwilling to and embrace further devolution on anything but its own limited terms.
A devo-max option is therefore pointless, because while the Scottish people have the right to annul the Union they cannot unilaterally dictate the conditions of its continuation, and the UK government is staunchly opposed to negotiating any conditions in advance, promising only a vague commitment (conditional on a No vote) to perhaps think about discussing the state of devolution at some unspecified point in the future.
So it seems inescapable that there will only be one question, regardless of what the electorate might say in the consultation. Furthermore, the Unionist position is currently that the question must be determined by the (ironically) unelected Electoral Commission, rather than by the wishes of the people as expressed in the consultation. At every step along the way to the referendum, in other words, power is attempting to suppress democracy.
The Unionists object in particular to the SNP’s proposed wording for the question, specifically complaining that the “Do you agree that…?” part leads respondents down a “cognitive chute“ designed to make them vote Yes. Perhaps, then, we might suggest an even shorter, clearer alternative to the Scottish Government’s choice:
“Should Scotland be an independent country?” (YES/NO)
Such a formulation entirely removes the contentious element of the question, and at just six words it would be hard to sustain any claim that it was too confusing for voters to understand. Any objection to it would give weight to the notion that Unionist parties, despite their constant assertions of certain victory, fear to put their jealously-guarded power and privilege to a clear and simple test of the people’s informed democratic will.
Its not beyond the capabilities of man to devise a referendum that provides a clear and unambiguous result from which we can move forward. Only then, with an open and transparent outcome voted for by the people, can we hope to build a positive future, whatever form it may take.
The unionists would object to “Yes” preceding “No”. Also the use of the highly suspect and emotive word “independent”.
I quite like:
“Do you want Scotland to be an independent country?” (YES/YES)
And also this:
“There are landmines, and there are M&S landmines”
It starts to get a little silly when we can frame a simple question down to six words and still have heated debate over how it is written. People on all sides need to step back and ask themselves what the point of the referendum is. It’s to ask the people if they think Scotland should become independent from the United Kingdom.
So, “Do you think Scotland should become independent from the United Kingdom? YES/NO” would do for me, and I assume every other person who can read. We’re not thick. You’d think some want the ballot paper to become of the scratch n’ sniff variety, or written right-to-left for maximum confusion. If they put NO/YES instead of YES/NO the voter would just stare at the paper and think, “That’s not right. Who does that? Yes always goes before no. Whoever worded this is a moron”, and you’d forgive them for taking their mind off the issue at hand.
A good article, I think it addresses some points that aren’t that well-known and certainly don’t get any time in the mainstream.
I agree with what you say Andrew. Hell you could ask “Do you want Coffee or Tea” and the unionists would complain about the question. I think the only time the unionists will be happy is when they can draw up the question in a manner to their liking. In other words their question is diametrically opposed to the currently suggested one, “Should Scotland remain part of the union?” (YES/NO)
I am always amazed that every time a unionist opens their mouth to complain about the manner and form of “the question” they seem to suffer from selective amnesia. Rightly or wrongly the “Should Scotland…….” type of question has in fact been used before. Funnily enough no one raised an eyebrow of questioning as to the use of this form of wording then, most notably in the referendum in 1997 that led to the re-establishment of our Scottish government.
I have said rightly or wrongly because in discussions here and elsewhere I have read comments that some people feel the question in 1997 was wrongly worded, much like the unionists think the current Independence question is worded. I will never argue against their point of view that the 1997 question may have been a “loaded” question. The fact remains however that the question was asked in that format. No one found any problem with the wording then so why is the wording suddenly a problem.
I suspect that the unionists are creating this storm in a teacup because they do not have ANY positive arguments for the union, as we are all well aware. This whole argument is, in my view, an attempt by Westminster to try and “enforce” their authority on the people of Scotland. Unfortunately for them, they do not appear to be so well informed about what they can and can not do under the auspices of the Treaty of Union. Let’s hope they continue to be ignorant of such things.
All this scaremongering by the unionists be it about “the question”, monetary policy, defence policy or whatever is nothing more than a smoke screen. At the end of the day the union is dead. The unionists are unable to accept this simple but very important fact. The only time they will accept it is when they have to start dealing with an INDEPENDENT Scotland!
We have already had a number of years of pro union gumpf from the unionists which, in effect, has amounted to absolutely nothing. I do not expect anything to change between now and 2014. They are scared out of their wits. Finally the penny has dropped, better pick it up George the country needs every penny it can get just now :D, Scotland WILL be leaving the union in 2014/2015 and there is nothing they can do to stop it. More importantly they sit down in Westminster and see all their tax revenues dry up and their besotted “AAA” rating wither away and die! THIS is the reason for all the scaremongering, nothing more, nothing less. Westminster’s bank balance is heading for the scrap heap and the unionist parties don’t know how to stop it.
Rant over. 😀
@Arbroath1320 I agree entirely, except I’m sure they would prefer “Do you agree that Scotland should remain part of the union?” (YES/NO)
@Arbroath1320
The wording in 97 was “Do you agree” but I have proposed removing the “cognitive chute” so as to gain the high ground over the Unionists and merely ask “Should Scotland be”.
Take the wind out of their sails as it were. This would make their further shrieking about fairness look even more like braying nonsense and reduce their credibility even further in the eyes of the public.
@Andrew Haddow – I believe the following would be more accurate:
Do you agree that should scotland separate from the munificence and benevolence of the ever generous United Kingdom, that supports those scrounging jocks, that they shall suffer pagues of loqusts, pestilence, disease and War?
RULE BRITANNIA, BRITANNIA WAIVES THE RULES!!!
Scott – You are right though, it is about power versus democracy. The former presupposition is what the discredited unionist parties are all about. They think that the SNP’s game is to achieve and retain ‘power’ and so they react and spin accordingly, but the issue of independence is above and beyond that shallow and meager objective. Still, if they continue to think that way it harms no-one but themselves.
Thanks for that Andrew, you are right of course it was just me confusing myself.
Instead of “In other words their question is diametrically opposed to the currently suggested one, “Should Scotland remain part of the union?” (YES/NO) ” I should have posted “In other words their question“Should Scotland remain part of the union?” (YES/NO) is diametrically opposed to the currently suggested one.” I think this actually makes more sense to what I actually meant to say. Sorry for the confusion. This should make everything clear as mud!:D
Gawd, I’m full of apologies today. 😀
You are correct of course Scott. However, I was just trying to generalise the question and not be exact. My mistake. 🙁 As you point out, to my hanging head in shame :D, the 1997 questions were both in fact of the “Do you agree …….” variety. I admit to not being highly edumacated in the realms of how wording of questions may or may not affect the answers from respondents therefore in my own niave way I do nmot see any difference between the “Do you agree…..” type question and the “Should Scotland be….” question. Hey that’s just me. 😀 I leave all the “in depth” arguments about these sorts of things to those “in the know,” just don’t expect me to take the word of anyone working for the union. The only question they would like is the question that they set themselves, then you end up with another set of questions based around the fact that the question will more than likely be biased around a “yes” to stay in the union. We therefore end up in a lose/lose scenario. The answer, quite simple in my view.
“Butt out Westminster. It is OUR referendum, therefore it is OUR question(s). END OF!”
Sub rant over. 😀
The plain fact of the matter is that they don’t want ANY question!
I sometimes wish AS would simply come out and say “This is the question, and this is the date.”
What would be the downside of telling Westminster to get stuffed?
@Juteman Better when he comes out with that with the people behind him via consultation
Sort of related to what we’re talking about here.
The Herald is running with this story about Michael Moore.
link to heraldscotland.com
Now as we all know the Scottish government’s consultation on the referendum only finished yesterday. So today we get this first sentence in an article in the Herald.
“MICHAEL Moore last night called for urgent talks with Alex Salmond over the response to the Scottish Government’s consultation on independence.”
I don’t know, but this sort of lead sentence leads me to only one conclusion.
The unionists are c******* themselves!
The monster of FEAR that is slowly growing every day south of the border has just lurched up HUGE in their faces. The unionists are now no longer just sitting and watching, from behind the sofa off course, their most feared horror movie. They are actually LIVING that movie and they don’t like how it ends. They are terrified that the ending they don’t like is starting to appear over the back of the sofa and they have no where else to run to. 😀
Good, clear article.
As stated, Westminster will never agree to negotiate on Devomax.
Therefore, it will be a simple Yes/No, but come the vote, this will be framed around the fact that London outright refused to negotiate on full fiscal autonomy.
The Scots will be fully aware of Westminster’s intransigence in denying them the most popular option.
Scotland will also be aware that a No vote may amount to the Tories using this a mandate for no more change, regardless of their ‘jam tomorrow’ rhetoric.
There will be plenty of Unionist suggestions of more devo after a No vote, but nothing will be assured, and voters are not likely to take the unionists on a few verbal hints. Once bitten, twice shy.
If the above scenario pans out, as it seems to be doing, then a Yes vote is likely.
Just as a wee follow up to my last post.
I wonder if dear old Michael Moore knows Alex is on his way to Norway this week and so dear old Mike will have to wait a wee bit longer to have his “urgent” talks with Alex. 😀
link to scotsman.com
“Should Scotland be an independent country?” is also a leading question. Again, it os asking for an opinion, not a decision.
The question must be a direct question on the lines of “Do you want Scotland to be independent?”
““Should Scotland be an independent country?” is also a leading question. Again, it os asking for an opinion, not a decision. The question must be a direct question on the lines of “Do you want Scotland to be independent?””
That, of course, is absolutely no different in any meaningful way. It’s still asking for an opinion. But as we’ve previously explored, there’s nothing wrong with either question, or the one currently proposed, anyway. The SNP have earned the right to frame it however they want, and everyone is going to know what it means by polling day if they don’t now.
“Should Scotland remain part of the union?” (YES/NO) ”
Actually, Abroath, I would support this question with the proviso that, to be approved, 40% of Scotland’s total registered electorate had to vote “Yes” (ala the 79 referendum). Less than that, Scotland would need to seek to remove itself from the Union, the Scots would have spoken.
But then, the Unionists would volte-face on that kind of rule quicker than you could say “that’ll do, donkey”.
A good article Scott. As an Englishman, I especially like the comment “A devo-max option is therefore pointless, because while the Scottish people have the right to annul the Union they cannot unilaterally dictate the conditions of its continuation…”
Spot on. “Should Scotland leave the Union?” is a question only the people living in Scotland can answer.
“Should Scotland change the terms of its membership of the Union?” is a question for all parties of the Union.
Let’s not get overconfident people. We have quite a journey ahead of us, and we still have to slay the unionist’s mightiest beast, that is, BBC Scotland. With the BBC spouting unionist shite from every pore, weilding it’s reputation with impunity, tarnishing it in the eyes of the intelligent, whilst leaving the Great Unwashed believing EVERYTHING the unionists say.
I think that’s the biggest threat to independence, looking at the council votes. I think it’s that Labour and their lies have considerable weight, most people are believing everything the BBC spoon feeds them.
That’s what worries me =/.
Scott, it’s “supersede”.
Also, “locusts”.
/pedant mode
“Supersede” is hotly disputed:
link to dictionary.reference.com
Not really. It’s just an increasingly common misspelling. Like “thimerosal” for “thiomersal” – when the writer doesn’t understand the derivation of the word. (Amusingly, if you try to find “thimerosal” on Wikipedia, it takes you straight to a page – headlined and named “thiomersal”.)
At this rate, we’re going to get into that sterile discussion about how common does a mistake in English have to become before it achieves legitimacy. Far better save the semantics for the question.
I remember 1997. I read the voting paper several times to make damn sure nobody was pulling any fast ones and I was definitely putting my cross in the box that would get Holyrood up and running. By the time this vote comes round, how brain-dead does anyone have to be to get to the polling booth with a pencil in their hand and either get it wrong, or make a spur-of-the-moment choice based entirely on how friendly the question looks?
Good article Scott, well written.
interesting article, Scott. Liked your question “Should Scotland be an independent country?” I hope that you put it in your response to the Scottish Government’s consultation on the referendum.
@Barbarian
Asking someone for THEIR OWN opinion is not asking a biased question.
By removing the “do you agree” (which is leading towards a preferred answer) and replacing it with a neutral “Should Scotland be” removes the cognitive chute.
As such the only bias that will be present in the voting booth will be the Bias that the voter brought with them.
@Morag
You got me at Locusts (and I will openly admit that there is an erroneous word in the article), but Supercede has been used in english since 1491.
It may have been a mis-spelling versus the original latin, but by god it hung in there! So in honour of the resilient word, I should say that we finally recognise it…
I mean after 521 years of being mis-spelt perhaps it’s the boffins that are wrong.
link to en.wiktionary.org
I am very muchagainst a ’79 rule
Why should the dead be counted as automatically voting against Independence?
If you do. It sat a vote then, barring major disabilities that prevent you getting a postl/proxy, you obviously have no preference
News relevant to the issue:
With the Your Scotland, Your Referendum – consultation now closed for submissions, Labour has shown itself up again in the most puerile and pathetic way.
Admissions have been made of Labourites posting responses to the consultation using fake email addresses in the names of Disney characters, such as Mickey Mouse and Donald Duck and pandas in Edinburgh Zoo, such as Tian Tian!! ….
“… and subsequently received automatic acknowledgements and unique reference numbers. Labour said this highlights that the consultation is “open to abuse” and will be little more than “an exercise in propaganda”.”
“However, Mr Crawford (Scottish Government Strategy Secretary Bruce Crawford) said the consultation is “immune from this sort of puerile interference”, saying: “Frivolous responses such as these are discounted from the analysis, and are not part of the more than 21,000 valid responses, just as we have also made clear that any response without a personal identifier in the form of a name and a postal or email address will not be taken into account in the consultation.””
See here: link to google.com
What planet do they live on? “It’s open to abuse, look see, we’ve abused it.” Bunch of idiots.
Luckily, the UK consultation <3,000 responses, wasn’t open to abuse at all, apart from the 700 entries submitted directly by the Labour party.
Isn’t it amazing, you get a political party shouting from the roof tops that the referendum consultation is a joke and then we find out the the joke is in fact NOT the consultation but the party doing the shouting!
When Lamont took over the “leadership” of the Labour party in Scotland was not, indeed is it still not, her constant mantra that Labour will learn from their mistakes? Boy have they got a LONG way to go!
Did Labour honestly think that they would not be found out? I know there are often comments made on various sites that the “hard core” of Labour supporters would vote for a donkey with a red rosette but honestly, this latest behaviour has done absolutely to prove to anyone that the core of the Labour party in Scotland is nothing more than a standing joke! No one in their right mind who was leader of any political party would permit such behaviour from their organisation. No matter whether your party was for or against the consultation what you would surely want would be to see what the public and business/organisations responses were to the consultation. After all it is these people that the Scottish government is asking for responses from. I would have thought “Trust the public” would have been a good mantra to have. Apparently not! The Labour party seem to prefer “We trust no one but ourselves!”
Long may this childish attitude prevail. The longer Labour keep on going down this “new” road of “learning” the more pathetic and stupid they look!
If this is how Labour learn from their mistakes I’d hate to see what they they do when they stop “learning from their mistakes!”
Arbroath, why on earth do Labour need to learn from their mistakes? Surely you’ve seen Lamont crowing over their victory in the local elections, telling the FM how the SNP lost the political argument, how Labour are now the party that Scotland trusts? What do Labour need to change? Why, they’re so confident that they’re now on the winning tack, they’re jumping into bed with the tories! What more proof do you need that Labour have learned their lessons and are now the people’s party again?
I mean, come on.
I’m sorry Don if I gave the impression that I wanted Labour to learn from their mistakes. Far from it. Please let them continue onwards in their currently blindfolded way.
I was trying, and obviously failing, to be as apolitical as I could when I asking my questions.
To quote an oft repeated political phrase, “Let me clear (as mud :D)” that I have ABSOLUTELY no wish for Labour to learn anything! I sincerely hope they continue to slide down the slippery slope of obscurity that they are currently on. My only wish is that the slope would in fact get even more steeper than it currently is.
Can I just add that I thoroughly enjoy the weekly Johann Lamont put down show a.k.a. FMQ’s. The longer she remains in charge the better off we will all be. Ever since Jack McConnell was First Minister I have come the conclusion that each subsequent Labour has been found to be even more inept than their predecessor, something I would never thought was possible.
I favour a simple two question referendum question as follows.
Vote yes X for Scottish independence.
Vote No X get nothing
I’d like to see;
Do you want a modern, progressive, independent, socially just and wealthy Scotland X
or
Do you want to retain the Union and see Scotland slide remorselessly into bankruptcy and ruin X
Seems fair to me!
A couple of examples of recent independence questions that were supported by the UK government:
Slovenia: “Should the Republic of Slovenia become an independent and sovereign state?” 1990
Georgia: “Do you support the restoration of the independence of Georgia in accordance with the Act of Declaration of Independence of Georgia of May 26, 1918?” 1991
Montenegro: “Do you want the Republic of Montenegro to be an independent state with a full international and legal personality?” 2006
Note that the question is about the FUTURE situation, and never about remaining in the existing situation. So a Scottish referendum question should not be phrased, “Do you agree that Scotland should remain in the United Kingdom?”
The expression “do you agree” may or may not be leading as many experts who think that for a referendum, when there has been months, or years of discussion and debate, the prefix is irrelevant, as there are those who think otherwise. It could be ‘dropped’ without changing the frame or clarity of the question.
Such as, “Do you want Scotland become an independent and sovereign state?”
As to the vote, I have always been of the opinion that a majority is sufficient. that means 50% + 1. I do not care if it is for the local PCC or a referendum, those who are interested will make the effort to vote, those that are not interested should have no say in the result. If (for example) 60% of Scots could not be bothered to get off their sofas and vote in the most important election in our history, why should they STILL influence the outcome? (the minimum criteria “rule” introduced in 1979).
I have also HUGE concerns over the postal voting arrangements that the EC have failed to address properly, despite a number of strange voting patterns in recent elections. Something MUST be done about that before the referendum. Only verifiable ‘excuses’ should be permitted, and ALL postal votes should be sent DIRECT to the overseeing body, which I think should be the OECD or CoE. Given their history, I simply do not trust the Electoral Commission.
I like the one about the international legal personality.
It makes me think of Donald Findlay on his holidays in Cancun.
Somebody a while back posted the question posed in the Quebec referendum (which was a mess). This question failed. So I do think clear wording is important, but all sensible options given above (Do you agree…/Should Scotland become…/Do you want Scotland to be…) seem perfectly clear and adequate to me.