What if the referendum ISN’T legal?
There's an aspect of the recent constitutional brouhaha that we're a little surprised nobody's looked into (so far as we've noticed). Let's assume for a moment that the Scottish Parliament, as claimed last week by the UK Government's Scottish Secretary Michael Moore, does NOT have the legal power to conduct any kind of referendum into Scotland's constitutional future (far less a legally binding one). And let's assume, for the sake of argument, that for one reason or another – perhaps the refusal of the SNP to play ball in negotiations – Westminster declined to give it that power.
How, then, could the people of Scotland ever legally choose to leave the Union against England's wishes?
It is an inviolable democratic principle, in this country and many others, that no administration can bind the hands of its successors. So despite the wording of the Treaty Of Union which stated that its effects were to endure "forever after", the Treaty cannot be imposed for eternity by those who signed it in 1707. But if the Westminster Parliament is the only arbiter permitted to allow the Scottish people a plebiscite on revoking it, and it chooses not to do so, how might the Scots legitimately extract themselves from the UK without armed revolt?
Electing MPs to Westminster is no good – making up less than 10% of the Parliament they can't force any legislation through, even were every one of them to represent a nationalist party. And in the Scottish Parliament, where it IS possible to elect a majority government dedicated to withdrawing from the Union, we've just been expressly told that there is no authority to even ask the question, far less act on it.
A mass petition? Millions demonstrating on the streets? The people of Britain tried that with the Poll Tax and the Iraq war, and a fat lot of notice the government took.
The UK government currently IS offering to empower the Scottish Parliament to hold a referendum, but while hinting at all manner of terms and conditions and limitations. It could, of course, also withdraw that offer at any moment. So can anyone tell us the democratic means by which the people of Scotland could assert and enact their desire to leave the Union, without asking for England's permission first?
Should such a means not exist – and it would seem that it doesn't – then the idea of Westminster imposing any rules whatsoever on the referendum mandated to the SNP by the Scottish electorate is a plainly indefensible outrage against the most basic rights of civilised peoples. We are not England's prisoners, and for that reason if no other, we are confident that any legal "obstacles" will be overcome. Roll on 2014.
Mass petitions and demonstrations were also of little avail in the devolution campaigns of the twentieth century.
The same questions were posed in the Baltic states and in the break-up of Yugoslavia, especially the case in Montenegro; who cares what the imperialist state thinks, it's what the international community recognises that counts!
Interesting. This seems to imply that by claiming to have the power to block a referendum that Westminster would be committing an illegal act under international law. Or am I reading too much into this due to complete and utter lack of any legal knowledge 😉 ?
Colin
I'm minded of Canon Kenyan Wright's statement at the opening of the Scottish Constitutional Convention:
(source)
The treaty of union did not give the new parliament any legal right to alter or repeal the treaty. If the referendum concerns the ultimate existence of the union, one could argue that Westminster has no legal authority of such a referendum.
See Prof David Walker, The Union and the Law, The Journal Online, June 2007.