Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

Call for Scots Referendum

Scotland, Europe, Northern Ireland, Wales, Commonwealth, International

Re: Call for Scots Referendum

Postby Hairyloon » Thu Mar 16, 2017 7:26 pm

atticus wrote:Hairy : the law. The government could go to court and get an injunction.

Sounds fun.
What law is it that prohibits them from doing that?
Take me to your lizard...
User avatar
Hairyloon
 
Posts: 10017
Joined: Thu Nov 01, 2012 3:12 pm
Location: From there to here and here to there... Funny things are everywhere.

Re: Call for Scots Referendum

Postby Smouldering Stoat » Thu Mar 16, 2017 8:13 pm

Scotland Act 1998 as amended. Constitutional matters are not devolved.
Smouldering Stoat
 
Posts: 6293
Joined: Thu Nov 01, 2012 6:31 pm
Location: Near the Creek.

Re: Call for Scots Referendum

Postby miner » Thu Mar 16, 2017 8:26 pm

Hairyloon wrote:What is to stop Scotland from opening up its polling stations, getting out its ballot boxes and holding the referendum themselves?


Because it would be illegal to do so, as part of the devolved government arrangement is that the Westminster government has to authorize such things.

Furthermore, the foreign policy is not included in the remit of the devolved Scottish parliament, and that could potentially also become an issue.
miner
 
Posts: 2341
Joined: Sun Nov 04, 2012 12:22 am

Re: Call for Scots Referendum

Postby Hairyloon » Thu Mar 16, 2017 8:44 pm

Smouldering Stoat wrote:Scotland Act 1998 as amended. Constitutional matters are not devolved.

I do not believe that prohibits the Scottish Parliament from seeking the opinion of the Scottish people. It is quite possibly quite canny: with it being only an advisory referendum, Scotland could vote resoundingly to leave, in the full expectation that their vote would be ignored.
That would put a spanner in the constitutional works as it would leave the UK ignoring the democratically expressed will of Scotland, and constitutional convention, and without question would be denuding the Scottish people of their rights against their will and for no good reason other than personal political expediency.

Does that really meet out constitutional requirements? If not, then that would mean that the Article 50 notice cannot be valid...
Take me to your lizard...
User avatar
Hairyloon
 
Posts: 10017
Joined: Thu Nov 01, 2012 3:12 pm
Location: From there to here and here to there... Funny things are everywhere.

Re: Call for Scots Referendum

Postby Smouldering Stoat » Thu Mar 16, 2017 9:01 pm

Why, then, was the consent of the Westminster Parliament required for the 2014 referendum, which was also purely advisory?

As to Article 50, our constitutional requirements are quite clear: the Supreme Court have set out what they are. An Act of Parliament is required, which received Royal Assent today. Sorry Hairy, but it's not a Get Out of Jail Free Card.
Smouldering Stoat
 
Posts: 6293
Joined: Thu Nov 01, 2012 6:31 pm
Location: Near the Creek.

Re: Call for Scots Referendum

Postby Hairyloon » Thu Mar 16, 2017 9:10 pm

Smouldering Stoat wrote:Why, then, was the consent of the Westminster Parliament required for the 2014 referendum, which was also purely advisory?

I believe that it wasn't. As I understand it, Scotland was threatening to hold such a vote, and Cameron thought he'd best let them have it in order to retain some control over the process.
As to Article 50, our constitutional requirements are quite clear: the Supreme Court have set out what they are.

No, the Supreme Court was asked a number of questions of law, upon which they have given answers, but none of those questions was "what are the constitutional requirements".
Also it made rulings of law, when much of our constitution is only convention.
We had a discussion about that some time ago: wasn't it you lecturing me about the importance of our constitutional convention?

ETA: Yes it was: viewtopic.php?f=23&t=5342&p=76894#p76894
Take me to your lizard...
User avatar
Hairyloon
 
Posts: 10017
Joined: Thu Nov 01, 2012 3:12 pm
Location: From there to here and here to there... Funny things are everywhere.

Re: Call for Scots Referendum

Postby Smouldering Stoat » Thu Mar 16, 2017 9:25 pm

Even Nicola Sturgeon says that Westminster's consent is required; hence she proposes to begin the process of requesting it.

There are no constitutional conventions about withdrawal from the EU. We have never withdrawn from the EU before so there has been no opportunity for conventions to develop; unlike, say, the convention that the Queen does not refuse Royal Assent or that she will always send for the victor of a General Election. One of the questions the Supreme Court was asked was whether the devolved administrations have a veto over the Article 50 notification; the court ruled that they do not.

I struggle to see the logical pathway that leads from Theresa May refusing to agree to a second independence referendum at the time of Nicola Sturgeon's choosing, to our constitutional requirements not being met. Are you seriously suggesting that it is a constitutional requirement of deciding to withdraw that the Scottish Government should be allowed to have a referendum first?
Smouldering Stoat
 
Posts: 6293
Joined: Thu Nov 01, 2012 6:31 pm
Location: Near the Creek.

Re: Call for Scots Referendum

Postby shootist » Thu Mar 16, 2017 9:40 pm

If Nicky The Fish starts the process of seeking government approval for a referendum on Scottish independence it seems likely to be refused for reasons stated. I think such a refusal is what Sturgeon will seek, for it will annoy the hell out of a great number of Scots who may be angry enough to vote leave when a proper referendum is permitted. She is in the ideal position because if the held a referendum and lost it could do some serious damage to her political career, but seeking a referendum and having that great big old nasty government in far off London tell you you can't have one until they say so could advance her cause significantly.
"I do not agree with what you say, but I'll defend to the death my right to be offended by it."
User avatar
shootist
 
Posts: 3540
Joined: Sat Aug 10, 2013 9:40 pm

Re: Call for Scots Referendum

Postby Hairyloon » Thu Mar 16, 2017 9:59 pm

Smouldering Stoat wrote:Even Nicola Sturgeon says that Westminster's consent is required; hence she proposes to begin the process of requesting it.

Nobody is questioning that she should ask.

There are no constitutional conventions about withdrawal from the EU.

No, but the Sewel convention requires that Scotland be consulted on such matters. The Supreme Court has ruled that that is only a convention and does not have the force of law, but in the same way, it is only convention that the Queen gives Royal Assent to bills passed by both houses: there is no legal obligation to do so.

One of the questions the Supreme Court was asked was whether the devolved administrations have a veto over the Article 50 notification; the court ruled that they do not.

If the court had been asked to rule, as a question of law as to whether the Queen must give Royal assent to a Bill, what would their answer be?
I struggle to see the logical pathway that leads from Theresa May refusing to agree to a second independence referendum at the time of Nicola Sturgeon's choosing, to our constitutional requirements not being met.

The fundamental basis of our constitution is that the will of the people trumps everything.
Scotland has clearly expressed the democratic opinion that it would quite possibly prefer to leave the UK and hope to be a member of the EU than to remain a member of the UK and to give the EU a hefty boot.
Thus if Scotland is dragged out of the EU by England without allowing them a vote on that question, then that overwrites the will of the people and subverts that fundamental constitutional principle.
Also, I believe there are international laws covering what one nation is allowed to do to another, and I would hope that forcing one nation against its will to denude its population of a given set of rights would not be allowed.
If our constitution allows us to so easily break international law and abrogate fundamental constitutional principles, then what is the point of it?
Are you seriously suggesting that it is a constitutional requirement of deciding to withdraw that the Scottish Government should be allowed to have a referendum first?

In the circumstances, yes...
Take me to your lizard...
User avatar
Hairyloon
 
Posts: 10017
Joined: Thu Nov 01, 2012 3:12 pm
Location: From there to here and here to there... Funny things are everywhere.

Re: Call for Scots Referendum

Postby Smouldering Stoat » Thu Mar 16, 2017 10:45 pm

Hairyloon wrote:...the Sewel convention requires that Scotland be consulted on such matters. The Supreme Court has ruled that that is only a convention and does not have the force of law, but in the same way, it is only convention that the Queen gives Royal Assent to bills passed by both houses: there is no legal obligation to do so.


The Sewel Convention is written into statute law. It is a matter, therefore, for the Supreme Court to interpret. The Supreme Court has set out why the convention does not apply in these circumstances.

If the court had been asked to rule, as a question of law as to whether the Queen must give Royal assent to a Bill, what would their answer be?


It is difficult to see the circumstances in which that might arise. That convention is not a part of statute law. It would depend upon the circumstances.

The fundamental basis of our constitution is that the will of the people trumps everything.


No. One of the fundamental bases of our constitution is that the will of Parliament trumps everything: Parliament is sovereign. So far as the will of the people is concerned, it is part of the reasoning behind Miller that the courts do not recognise the will of the people unless and until it is expressed through an Act of Parliament.

Scotland has clearly expressed the democratic opinion that it would quite possibly prefer to leave the UK and hope to be a member of the EU than to remain a member of the UK and to give the EU a hefty boot.


Scotland is not a separate entity for these purposes. Withdrawal from the EU is a matter for the UK as a whole.

Thus if Scotland is dragged out of the EU by England without allowing them a vote on that question, then that overwrites the will of the people and subverts that fundamental constitutional principle.


Not applicable, for the reasons set out above.

Also, I believe there are international laws covering what one nation is allowed to do to another, and I would hope that forcing one nation against its will to denude its population of a given set of rights would not be allowed.


Go on, then. Identify these laws.
Smouldering Stoat
 
Posts: 6293
Joined: Thu Nov 01, 2012 6:31 pm
Location: Near the Creek.

PreviousNext

Return to Other jurisdictions (Scotland EU, Wales NI etc)

Who is online

Users browsing this forum: No registered users and 1 guest