In the Herald today by Tom Gordon:
THERE are “no legal shortcuts” to a second independence referendum and Nicola Sturgeon’s mandate for one is “legally irrelevant”, two leading academics have said.Writing for the UK Constitutional Law Association, the pair said trying to hold a referendum without the UK Government’s cooperation would be a “non-starter”.
It’s wrong. Here’s what they say:
Similarly, the Scottish Government’s mandate to hold a referendum – though politically important – seems legally irrelevant.
These are academics. Using ‘seem’ rather than ‘is’ matters. They know that all forms of law are subject to interpretation, selection and change. They know that other academics or ‘experts’, will disagree and they do. Here’s what a former ambassador thinks:
I am firmly of the view that the Scottish government should now move to withdraw from the Treaty of Union. Scotland’s right to self-determination is inalienable. It cannot be signed away forever or restricted by past decisions.
The Independence of a country is not a matter of domestic law it is a matter of international law. The right of the Scottish Parliament to declare Independence may not be restricted by UK domestic law or by purported limitations on the powers of the Scottish Parliament. The legal position is set out very clearly here:
5.5 Consistent with this general approach, international law has not treated the legality of
the act of secession under the internal law of the predecessor State as determining the effect of that act on the international plane. In most cases of secession, of course, the predecessor State‟s law will not have been complied with: that is true almost as a matter of definition.
5.6 Nor is compliance with the law of the predecessor State a condition for the declaration of independence to be recognised by third States, if other conditions for recognition are fulfilled. The conditions do not include compliance with the internal legal requirements of the predecessor State. Otherwise the international legality of a secession would be predetermined by the very system of internal law called in question by the circumstances in which the secession is occurring.
5.7 For the same reason, the constitutional authority of the seceding entity to proclaim
independence within the predecessor State is not determinative as a matter of international law. In most if not all cases, provincial or regional authorities will lack the constitutional authority to secede. The act of secession is not thereby excluded. Moreover, representative institutions may legitimately act, and seek to reflect the views of their constituents, beyond the scope of already conferred power.
That is a commendably concise and accurate description of the legal position. Of major relevance, it is the legal opinion of the Government of the United Kingdom, as submitted to the International Court of Justice in the Kosovo case. The International Court of Justice endorsed this view, so it is both established law and the opinion of the British Government that the Scottish Government has the right to declare Independence without the agreement or permission of London and completely irrespective of the London Supreme Court.
Also, Gordon makes much of Nicola Sturgeon’s desires, but the experts do not mention her at all in a long piece of writing. It reminds us of the demonisation of Alex Salmond in 2014. There was a time when a Herald writer might have been closer in style to the academics and further from the Daily Mail.
Finally, the experts ‘seem’ more optimistic about what the Scottish Government might do next, but this has had little media attention. This bit’s worth a read:
So much for what the Scottish Government cannot do, or ought not to do. What can it do proactively to advance its position? Strategically, it is likely that the Scottish Government has always anticipated that the UK Government will reject its call for a referendum in 2020. Instead, there seems to be an attempt to frame any such rejection – and the democratic case more broadly – as the central issue of the 2021 election to the Scottish Parliament. Whilst, as a matter of law, the UK Government might continue to withstand the pressure of a renewed pro-independence majority at Holyrood, there have been signs even in unexpected places – notably from within the UK Government itself as well as from within Scottish Labour – that the legitimacy of such a result would be difficult to resist. Tactically, the SNP might rely on its Westminster membership to maintain political momentum towards – and to finesse the legal form of – a referendum. It could do so with the introduction of a Private Members’ Bill in the form set out in Annex B. Such a Bill would almost certainly fail to be passed. However, and as advocates for an EU referendum discovered prior to the UK Government’s introduction of the EU Referendum Bill in 2015, these Bills can usefully be deployed both to give life to – and to stress test – proposed legislation; to signal action to an impatient audience; as well as to emphasise the sites of political obstruction when the Bill falls. That cohort might also use the advantages of being the third largest party at Westminster – including increased opportunities to make use of opposition time or to ask questions of the Prime Minister at PMQs – to provoke a response from the UK Government. At Holyrood, the SNP – working with the assistance of Greens and other parties opposed to Brexit – might see the legislative consent mechanism as one way to re-state the argument from democratic deficit, as it has done this week when the Scottish Parliament refused legislative consent in relation to the European Union (Withdrawal Agreement) Bill 2019-20.
Political pressure might also emerge outside of these formal political institutions – from public protest or from civic initiatives such as the 1989 Claim of Right or the Scottish Constitutional Convention which preceded the formal act of devolution. Indeed, on the same day that the First Minister announced her government’s intention to pursue a referendum by 2021 she announced also the establishment of a Citizens’ Assembly for Scotland that would examine the sort of country, independent or otherwise, that Scotland wants to build.