The legality of the independence referendum

Donald Mackay looks at the legality of the independence referendum in the wake of serious debate between Westminster and Holyrood on the issue.


A lot has been talked by both unionists and nationalists as to the legality of the referendum process. So in my first article on Labour Hame, I decided to stick my oar in.

The first thing I would contend, as has been mentioned before, is that there is such a thing as a legal referendum at all. At present, the Westminster Parliament is sovereign. It can make any law its heart desires and that is so. The principle of the Scottish Sovereignty of the People set out in documents as ancient as the Declaration of Arbroath and as recent as the Claim of Right is entirely theoretical for British constitutional purposes.

For this reason Westminster is under no obligation at all to pass a law following a referendum result. All UK referendums are consultative. The legal obligation is nothing. The political obligation is intense, and realistically no government of any colour would be stupid enough to refuse the results of a referendum.

What is certainly true is that Holyrood has no legal power to hold a legally binding constitutional referendum as the constitution is a reserved matter under Schedule 5 of the Scotland Act. The way the Scotland Act is structured means that everything not expressly reserved is up for grabs, including, apparently, government policy on Antarctica (which I’m sure is entirely in the priorities of every SNP minister). So Salmond can hold a consultative referendum on independence, but then so could anyone on anything. There is no law stopping someone buying a copy of the electoral register (or going for the African option of an ink fingerpot), setting up a polling booth in every town in Scotland and holding an election on what type of shoes they should buy. Luckily, this kind of direct democracy is not regularly applied, and if it occurs would produce some terrifyingly disproportionate results (as was proved by the last person to give it a shot, Brian Souter).

So imagine for a moment, the Scottish Government has held this referendum and they’ve won. The next stop is the Supreme Court. Anyone with “sufficient interest” (that’s the legal requirement) for judicial review could raise an action against the referendum result, as an Act of the Scottish Parliament. In this context, sufficient interest could mean any citizen of Scotland.

This would be further complicated by the entry of the Advocate General, the Scottish law officer for the UK Government who is required to intervene on judicial review cases challenging the competence of the Scottish Parliament or the Scottish Government. Things become problematic thanks to the further rights of intervention by public interest bodies. In such an important case all of civic Scotland would turn up with their lawyers. All with a right to speak on every point raised. Two hundred lawyers in a room all with a lot to say is never a pretty sight and the poor little referendum bounces around a courtroom for the next decade or three.

However, at the crunch the result is likely to be the same. The Supreme Court is not above common sense. Often deference to a democratic mandate is sufficient to win them over. There was a case called Alconbury v Secretary of State for the Environment which if it had not been hastily reversed by the House of Lords would have prohibited a Government Minister from ever making another controversial decision, with all the obvious issues for the practice of government that would bring. Scotland would only have to call on the right to self determination under the UN charter and deference to democracy would do the rest.

So if the referendum has been manifestly and demonstrably fair, if the question was not biased, and the decision was in the right direction, then it passes. Westminster is politically forced to draw up an Act of Parliament that reads like a divorce paper and has just as friendly negotiations attached, and if not Scotland could potentially UDI.

The problem is that the SNP are not making it easy to win this legal battle. They need to accept the transfer of powers being offered by the Secretary of State. They need to let the Electoral Commission have proper freedom to run the referendum and have the final jurisdiction on the question as it is the only way it can be manifestly and demonstrably fair. They need to make the entire process whiter than white. If anything else happens, this is going to get messy.

Donald Mackay is a Law Student at the University of Glasgow and a member of Glasgow University Labour Club.

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47 thoughts on “The legality of the independence referendum

  1. A sensible and coherent summary of the legal position of a referendum. If I have read and understood it correctly basically there is no legal impediment to anyone holding a referendum. That in the UK referendum are advisory so there is no such a thing a a legal binding one. That the UK parliament is sovereign and sovereignty of the people is no more than theoretical.(wow) That any referendum, provided it is run properly and fairly, would have a political weight that could not be ignored.
    So what exactly is Westminster doing, could it not just provide the power and let the Scottish Government get on with it?
    I suspect that both governments are merely manoeuvring at present, that a section 30 will be given, that the involvement of the Electoral Commission will be ceded provided it is accountable to Holyrood. That votes for 16/17 year olds will not be a matter to go to the wall on.
    The date and running have all but already been conceded, the wording of the question is close to being in an acceptable format.

  2. I hope people appreciate that Scotland does not need Westminster’s ‘permission’ to be independent. If the referendum is free and fair, delivering a clear yes vote, then it is the international community who decide that Scotland is independent by recognising the result and welcoming Scotland into the world. For very obvious reasons, it is the people of the country [Scotland] wishing to be independent that must decide this for themselves without outside interference [e.g. from Westminster]; this being fundamental to the principles of ‘self determination’ under international law. The ‘legality’ (Scots law or English Law? there is no British Law) of the referendum under a non-existent UK constituion is irrelevant. If, following a hypothical yes result, world leaders start announcing they recognise the result, followed by the EU, UN etc, that would be that.

    “WHEN Michael Moore stood at the Dispatch Box at Westminster yesterday he had a simple message; Scotland’s constitutional settlement rests with Westminster and Scottish independence would require the consent of London.

    With all due respect, this argument is neither consistent with international law nor is it compatible with the constitutional doctrine of referendums in the United Kingdom.”

    I find it hilarious that supposedly ‘intellectual’ politicians think Bob from Bathgate could block the whole thing by taking it to court. Actually, no, make that ‘very worrying’ as these people are supposedly running the country.

  3. If it’s illegal it shouldn’t be.

    I’m sure there’s interpretation from both sides on this. However, can anyone really say WHY it should be illegal? People can come on and say whether it is illegal or not. That is up for discussion, clearly. Everyone has a view on this. But nobody has came up with any good reason why it is actually illegal. There’s seems no good reason for it.

    Further devolution is going to affect the State as a whole in some way. Surely the reservation of constitutional matters is in relation to further devolution of more powers; not full independence. It is surely not in the province of Westminster if Scots want to be independent or not. But the discussion of independence was always going to come up at some point. Surely on this issue – which Labour have already said is totally different from devolution – a clear provision should have been made in the Scotland Act to allow an independence referendum if the people so wish it. i.e. a referendum being the exception to reservation of the constitution. Far from discouraging a referendum on this issue the Act should be giving it free air to grumble if we so desire.

  4. You forget that self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference.

    Any action in the Supreme Court is by definition external interference.

    1. the problem with your hypothesis is in ‘Nation’ Scotland is not a Nation only a constituent part of the United Kingdom so your international law is all bunk

      No doubt the politics will trump the Law it generally does and if the Will of the Scottish people is for Independence(I hope not) thats is what they will get

      1. Nikostratas,

        Scotland is a nation. Treaties, such as the Treaty of Union, are between nations – they are not internal to states.

      2. “only a constituent part of the United Kingdom”
        This statement is incorrect. Two countries set up a single Parliament by means of a treaty. This treaty did not affect the nation status of Scotland eg within the Commonwealth.

      3. Scotland, and England are separate nations who agreed a union of parliaments. That they remained separate nations is evidenced by the separate legal and educational systems. In terms of legal niceties you are about twelve years late in objecting to the words of Winnie Ewing “the Scottish Parliament, adjourned on the 25th of March in the year 1707 is hereby reconvened”. The Scottish Parliament is a reconvening of the Scottish Parliament not an entirely new entity. One of the interesting quirks about having a constitution which is not codified (It’s sometimes mistakenly said that we don’t have a constitution, we do, it’s just not codified as the Constitution of the United States is, it’s not one document its scribbled down on the back of a million fag packets). That statement, accepted by the chamber in the presence of the Monarch creates the constitutional legitimacy of the current Scottish Parliament to be the continuation of the parliament which recessed in 1707. None of the MSPs present sought to censure her for those words so another fag packet was written upon. This brings us to the claim of right 1689. As the continuation of the Scottish Parliament the claim of right that sovereignty rests with the Scottish People not the crown (This is why Elizabeth Windsor is queen of Scots not of Scotland, which demonstrates that the claim of right had not fallen into abeyance). Having demonstrated that the Scottish People retained sovereignty throughout the period of the Union of Parliaments we turn to the constitutional convention and the claim of right 1989. Signed by groups with legitimate claims to represent the vast majority of Scots. MPs, MEPs, Regional and District and Island councils, churches and trade unions it reasserted that in Scotland sovereignty rests with the people of Scotland. Whether that claim has any legal force has never been tested. That is the current constitutional…. morass for want of a better word in which this debate takes place. Anyone claiming that there is a clear cut outcome to any of the arguments regarding the constitutional legitimacy of a referendum on independence is quite frankly delusional. Nobody knows, there are so many interacting, dysfunctional fag packets in play it depends on who digs up which packets on the day in court. Resolving this within the framework of the constitution is unachievable. Whichever way any court rules on constitutional legitimacy there will always be clear grounds for appeal to a higher body. The right of self determination isn’t explicitly codified in the European Convention on Human Rights, and therefore is an unlikely remedy for those seeking independence for Scotland. The convention exists to protect the rights of the individual versus the state.

        The only remaining applicable body of law is international law which clearly expresses the right of self determination of a nation to chose its own sovereignty and political status. It does not define what is or isn’t a nation, nor does it define what the nature of the sovereignty is. However given that Scotland has retained it’s historical geographic boundaries, legal and educational systems and has a constituted parliament with legislative power over that geographic area it clearly constitutes a nation under current international law. Which is why Cameron has had to back pedal so fast on his “ultimatum” to the first minister. Which is what pisses me off so much about the Labour Party at Westminster just now. This current government are so incompetent that they brief against negotiations over public sector pension reforms and are so inept at managing the negotiations that they provoked a national strike. The Labour Party successfully negotiated changes in public sector pensions and not once was that raised in parliament and the Labour Party refused to acknowledge that there were legitimate grievances in the way that negotiations were being handled.

    2. Not any action. Yes, Scotland has the right to self determination, but if the Supreme Court finds that the referendum hasn’t been conducted entirely fairly that will count for little. The United Nations would tell you the same. Otherwise the SNP could just declare Scotland independent here and now

      1. Actually it will not depend on the supreme court finding that the referendum has been conducted fairly. The supreme court can legislate on the constitutionality of the referendum. It would be for observers to indicate whether there were any irregularities in the running of the referendum. It would not be open to the Supreme Court to contest the result. That would be a matter for Westminster to contest at the UN General Assembly

  5. Basically, this means that the result of the 1994 referendum conducted by Labour-run Strathclyde Region on the Tory policy of Water Privatisation was not legally binding. And yet the result was a clear NO to the Tory Government’s policy in Scotland and it was not brought forward. So a referendum can carry political weight. It was never the SNP’s contention that a referendum was anything but consultative. The legality issue seems to have been brought forward by unionists and, in the process, it has led Labour politicians to argue that we are in fact sovereign subjects of the Crown in Parliament. Hands up any republicans in the Labour party who find this offensive.

  6. Look at this from another apsect.

    If the English wanted to hold a consultative plebiscite on the issue of sovereignty. i.e. “Do you agree that sovereignty lies with the English people?”, then there is nothing the UK government nor the UK Supreme Court could do to interfere in that process nor nullify the result. Faced with a YES vote the UK government would be forced under international law to recognise that sovereignty no longer lies with Westminster.

    As you could imagine a YES vote on English sovereignity could lead to another English plebiscite on EU membership and/or the continuation of the UK.

    The principle of self-determination holds for every constituent part of the UK.

  7. The legal argument is all very well but it doesn’t support any argument other than itself. As others have already commented, this power should be available to the Scottish Parliament, through the Scotland Act. The Scottish Parliament is the only democratically elected body which represents Scotland, in it’s entirity, and is free from outside interference. It’s only right that power exists there legally, as well as politically and morally, as it already does.

    Whatever problems might be posed by Donald’s article are easily solved. Westminster should draw up a bill passing (or at least lending) this power to the Scottish Parliament. Not with conditions attached or stuck in the middle of the Scotland Bill so that the Parliament has to swallow things it might not like to get these powers. Easy. Problem solved. Everybody’s happy. No?

  8. ‘At present, the Westminster Parliament is sovereign. It can make any law its heart desires and that is so. The principle of the Scottish Sovereignty of the People set out in documents as ancient as the Declaration of Arbroath and as recent as the Claim of Right is entirely theoretical for British constitutional purposes.’

    I’m not sure that that is an argument I’d want to defend on the doorsteps. Seems to me that it puts in a nutshell many of the arguments for Independence.

  9. Here’s what I said in a letter published in The Herald on 27 January:

    YOU report that, while Westminster insists the Scottish Government does not have the legal authority to hold a referendum, Alex Salmond said his government had “set out in the past how the Scottish Parliament could hold a referendum which we are satisfied would be within its present competence” (“Poll boost as Salmond starts on historic path”, The Herald, January 26).

    The First Minister added: “In order to ensure that the referendum is effectively beyond legal challenge, we are willing to work with the UK Government.”‘

    Cooperation between the Scottish and UK governments on this matter is, of course, to be welcomed. But the all-too-prevalent view that the Scottish Government is on shaky legal ground in claiming that it already has the power lawfully to hold an independence referendum needs to be vigorously countered. No-one disputes that the Scottish Government, notwithstanding the restrictions on that government’s devolved competence contained in the Scotland Act 1998, can lawfully make proposals to, or hold conversations or enter into negotiations with, the United Kingdom Government about (i) widening the devolved powers of the Scottish Government and Parliament (including amending or removing some or all of the matters reserved to the United Kingdom which are set out in Schedule 5 of the Act) or (ii) altering the constitutional position of Scotland.

    That being so, no court could conceivably hold that it was beyond the legal power of the Scottish Government to promote legislation to enable it to consult the Scottish electorate (by means of a referendum) about whether they would favour the Scottish Government’s making such proposals to, or holding such conversations or entering into such negotiations with, the Government of the United Kingdom.

    There is always, of course, the possibility that such legislation might be challenged as being beyond the Parliament’s powers in the courts of Scotland and all the way to the UK Supreme Court. But any such challenge would be doomed to failure.

    1. I completely agree such challenge would be ultimately doomed to failure. I just feel the potential for the challenge to go ahead is possible and the complicated legal process that would come into play would take a period of time that would hurt the country and leave the entire thing with a bitter taste at the conclusion

  10. Donald, you have an interesting in “At present, the Westminster Parliament is sovereign.” There is no written Constitution. The UK Parliament is a treaty-based organisation, based on the Arcticles of Union.

    It is open to the original contracting parties (representatives of Scotland and England) to repeal the Acts of Union made in both Scotland and England and applying separately to each of the 2 countries. (At that point, no one country could impose law on other).

    The logical consequence of repeal of the Act would be to withdraw from the union. There is an exact parallel with the European Communities Act 1972, and a similar interpretation of that position by Baroness Scotland and Jack Straw.

  11. Moderator, apologies. The word “interesting” should be followed by “opening”,

  12. I cannot understand what the supposed ‘legality’ has to do with democracy in any shape or form unless we are really living in a dictatorship.

  13. Any attempt to block a referendum held by the Scottish Government would leave Westminster a joke – the Scottish people voted in an SNP government who promised to have a referendum in the latter part of their term. They are keeping to that promise.

    Should the Scottish people decide to vote for Independence, in a referendum held by the democratically elected government of Scotland then it will proceed.

    The legality is a smokescreen erected by unionist parties scrambling for relevance in an attempt to disguise the fact that they have no positive case for the Union.

    Westminster will not dictate this issue. Rightly, the Scottish people will.

  14. Why are we still discussing process?

    I want to read about why Scotland and it people will have a better future as part of the United Kingdom than as an independent country.

    By the way, can anyone name a country that has ever achieved independence and then regretted it?

      1. If we’re being pedantic, union was forced on the Scottish people. That it happened to be forced on them by their own, undemocratic, parliament, doesn’t mean it was the will of the people.

        1. Hi John Ruddy

          Perhaps the independence of Norway around a hundred years ago is an example quite similar to Scotland – Norway found itself joined with Sweden as a result of a shared monarchy, but then voted for independence. The difference may be that Scotland would keep the same monarch as the rest of the UK whereas Norway chose to separate their crown from that of Sweden.

  15. is law not about opinions and argument? and they can change.are laws not made for the the people? is scotland a country or not?depending on your views on this may influence a persons opinion and argument.

  16. This is an excellent article

    Unfortunately I can understand why the Scottish Government want to interfere in the current referendum such as Mr Foulkes and Mr Forsyth, who seem to be on the same side.

    Mr Foulkes seems to want to add an amendment to make only 1 question possible at a time (although hew supported a 2 question referendum in 1997)

    I seem to remember a Labour MP adding an amendment in 1979 which stopped a yes vote for Scots home rule going ahead- then we got over a decade of the tories with no Scots Parliament

    I can see why the Scots Government want control over the referndum- they seem to be OK with the Electoral Comission as long as it answers to Scotland

  17. This is an excellent article

    Unfortunately I can understand why the WESTMINSTER want to interfere in the current referendum.

    Mr Foulkes and Mr Forsyth, who seem to be on the same side. Mr Foulkes seems to want to add an amendment to make only 1 question possible.
    I seem to remember a Labour MP adding an amendment in 1979 which stopped a yes vote for Scots home rule going ahead- then we got over a decade of the tories with no Scots Parliament. Had the parliament went ahead it would have stopped alot of the Tory agenda

    I can see why the Scots Government want control over the referndum- they seem to be OK with the Electoral Comission as long as it answers to Scotland

    (please delete last post(s) of mine as my pc was playing up)

  18. So westminster can give scotland the power to hold a referendum which is legally binding but are not doing so unless they can impose their influence on it.

    Remind me again …… why do we want to remain in a union with this mob?

  19. The Unionist believe that the union should be saved at all costs. To think that they can hold people against their beggars belief. The will of the people must be paramount in any form of union. People want political change across the UK but Westminster wants things to remain the same because they are the only ones benefitting from this.

  20. Yes. I am becoming tired of the continuous stream of ill informed nonsense being spouted on this subject. It iaas well that Labour Hame has put this up for debate so the nonsens can be exposed
    The United Nations Charter and the inalienable right of self determination it contains treumps all the legality bluff and bluster. There are anumber of well understood international protocols which cover this whole area and all this hot air is in defiance of that.
    All the international community need is a straighforward expression of national independence which can be arrived at by a number of different means and which obviously has majority national support.

    1. But the UN charter would only come into play if there was a fair and free referendum. A referendum with a loaded question wouldnt count, for instance.

      Thats why everyone wants to make sure everything is as above board as possible.

      1. I assume you’ll be sending your petition into the courts to get the result of the 1997 Devolution referendum overturned John?

        The option then was “I agree that there should be a Scottish Parliament.”

        Surely a loaded question?

  21. Good article. On the Supreme Court level, would the SNP lose out on their question “Do you agree…..”?

    Apart from the fact it is a leading question, which would raise eyebrows, it does not specifically ask if you WANT Scotland to be independent. That is where I think they will fall down should things reach court.

    1. I may be just a bit too young to have voted in the referendum for a Scottish parliament, but I believe I am correct that the questions on the ballot paper then began ‘I agree that/I do not agree that…’ there were technically four questions then, no?

      It was ok when it promoted a ‘yes’ vote then, of course. Now, it is a leading question. Genuinely wiling to be schooled on this. Is it simply that the parties which were on the ‘yes’ side then are on the ‘no’ side now? Is it really that simple? Is it the word ‘agree’ that is leading? By that consideration, then by adding ‘I do not agree’, it would balance out? Surely there is no problem in voting ‘I do not agree’ if you do not agree.

      Perhaps they would prefer: ‘Do you not agree that Scotland shouldn’t be independent?’ 🙂

    2. Lol. We might just have to declare the Scottish Parliament to be null and void in that case because when we voted for devolution we AGREED that there should be a Scottish Parliament and we AGREED that the Scottish Parliament should have tax varying powers.

      1. Hilarious! Don’t you know you can’t?

        Here are some facts that cannot be disputed.

        The Declaration of Arbroath and subsequent aformations are part of the independent Scottish legal system. That the Scottish people are sovereign is upheld bt the Treaty of Union. Modern legal decisions prove that they are still sovereign. There is no English style trespass law in Scotland as Scots, being sovereign, own Scotland and have right to roam. Ask the Queen who tried to stop access through her Balmoral Estate – and failed. See that anyone who clamps a vehicle on private land in Scotland is charged with demanding money with menace.

        So that’s proven. Scots law is sacrosanct under the Treaty Of Union.
        All Acts Of Parliament must be sealed with the Great Seal. Both Scotland & England’s great seals were broken at the treaty of union and replaced by the Great Seal of the United Kingdom.

        However, when Her Majesty opened the first session of Holyrood Winnie Ewing, in her Majesty’s presence declared that the old Scottish Parliament was reconvened – not a new parliament opened. There on the tabe before her majesty was the scepter and other artifacts of state and all Scottish along with a new great seal of Scotland.

        That means England has no parliament of her own, she has no artifacts of power including no English great seal without which she cannot legally pass an act of parliament if there is no UK parliament.
        There were only two signatories on the Treaty of Union and when Scotland voids that treaty there is no United Kingdom Parliament, no English Parliament but there is a Welsh, Scottish and N.I parliament.

        Remember also that the English are the subjects of the Queen of England but the Scots are sovereign while The Queen of Scots is not.

  22. Mr Mackay,

    I was shocked to read in your legal analysis;

    “The principle of the Scottish Sovereignty of the People set out in documents as ancient as the Declaration of Arbroath and as recent as the Claim of Right is entirely theoretical for British constitutional purposes.”
    The English gave their Sovereignity to their Parliament, that is why the Queen uses “Black Rod” to ask to enter Parliament, the Scots did not and the Declaration of Arbroath was “embeded” by the Claim of Right which predates the Treaty of Unions of 1706 and 1707 and is not removed by the treaty. The Scottish people are Sovereign full stop. I don’t understand what you mean by “for British purposes”. This is a reserved matter for the Scottish Parliament and Scottish Law is separate and the Highest Court that Scotland has is the Court of Sessions in Edinburgh. We do not recognise English Law. That is enshrined in the Act of Treaty 1707. These Laws and Treaties were never repealed so still stand, however, a treaty between two nations can be “torn up” by either party at any stage.

    The Supreme Court in London does not have the competence to rule in International issues such as a treaty between two nations. It is further wise to note that as Scotland has a working Parliament and therefore a voice it can remove the assent from the treaty so long as it has the permision of the Sovereign people to do so. And that is why they are being asked.

    You are getting yourself tied up in political knots by looking at it as you are. Try looking at it from the simple premise that the Scots (that’s us) have the complete right to do what is best for them and there isn’t a Law or Court in the world that can stop them (us). People can play all the legal football that they want but what would they achieve even if the Law Lords of the Supreme Court stated that it was all unlawful. Answer: Nothing.

    To help you, have a look at other separations that have taken place in the world. Perhaps you would like to look at it again and write a new article stating how your view of the issue has changed.

    Kindest regards,

    David Milligan

    1. Did I say at any point in that article that a legal challenge of a fair referendum successfully mandating Scottish independence would be successful? The UK constitution is a mishmash of founding documents and effectively binding conventions: including the Treaty of Union.
      It’s not a matter of recognising English Law, but also the suggestion that there is no such thing as UK law that has been put about is nonsense.
      So with three centuries of the Westminster parliament, it is safe to say (and I believe has been proved in court) that Westminster has sovereignty over Scotland.
      Which means that there is now in reality no such thing as power reserved to the Scottish Parliament, and as far as the UK Supreme Court is concerned, the Act of Union is a domestic not international document.
      If the Supreme Court is able to recognise that the referendum has been carried out in a fair way, they will not refuse it, United Nations international law will ensure that. But to avoid a lengthy legal battle being perfectly possible and driving the entire country demented, the action taken to ensure referendum fairness has to be bulletproof.

  23. All this negativity is causing the electorate to develop a siege Mentality
    “everyone is getting at us” we have to stop this, the people do not believe we are this dependent.
    The more the claims are made, the more the Scots will say
    “Oh you think so?” and turn in the opposite direction.
    We are a Contrary nation and it is showing in the polls.

  24. Err! No! Where do you get the idea that Wastemonster is sovereign. As your second paragraph is thus in error your premiss is all wrong.

    It is simple – TWO nations signed the Treaty Of Union.
    That Treaty states that Scoland’s independent legal sysytem is sacrosanct.
    Scottish law state that the people of Scotland are sovereign and, further, that they retain the right to choose their monarch and to sack that monarch if they deem him/her not to be doing their wishes.

    The Wastemonster Parliament of the United Kingdom of Great Britain & Northern Ireland is a constitutional monarchy. Ergo, they are delegated the sovereign powers of each of two, equally sovereign, partners.

    However, the Queen of England is sovereign and Greater England’s peoplesare her subjects. The Queen of Scots, though is NOT sovereign as the people of Scotland are. What is more the Treaty of Union states that Scotland’s independent legal system is sacrosanct and those sovereign people have the legal right to choose their monarch AND TO SACK THAT MONARCH. In a constitutional monarchy that means, if a majority of Scotland’s people say they sack their chosen representative then that representative is gone,

  25. Let’s cut to the chase here.
    Is the intention of the article to provide some form of specious reasoning which would allow the Labour Party to oppose the people of Scotland being allowed to decide how and by whom they are governed? (as is their right as enshrined in the United Nations Charter and the passages it includes describing the inalienable right of self-determination of any peoples).

    So very democratic.

  26. When will the British Nationalists make a case for Scotland remaining in the union?
    I’m an old man now and have not yet seen a single good case made for Scotland to stay.
    Yet every Scottish Nationalist can make a case fot getting out.

    If we Scots are such a bunch of subsidised layabouts, sucking on an English teat, why are you all so passionate that we do not leave? Are we not agreeing with all your reasons why we are too wee, too poor and far too stupid to run Scotland for Scots by ourselves?

    Come on! Let’s have something real to debate and stop all these stupid stories of fear and overlordship that are so easy to prove utter mince.

    Step up the first British Nationalist to engage in a proper debate on the very real political and economic factors that are the real debate.

    1. A few Labour voters can come up with solid arguements for an independent Scotland as well. Do not believe that everyone on this site follows the LOndon dictate.

  27. The big risk for Salmond is if he goes it alone with what many educated people think is an illegal referendum, is that there will be massive opt out. He would be stupid to try it. Despite his Braveheart rhetoric he is not that.

    As another commentator says, the focus on process is missing the point.

    Salmond is all about Salmond. He is wasting effort and money on a pointless piece of nonsense. If he really cared, he would be addressing Scotlands problems. Poverty, drugs, drink, tobacco, bad diet, early death. Salmond has a poverty of ambition.

  28. Constitutional legality questions like the scope of a devolved legislature and the power of courts are always thorny, but given the nature of glass houses, we might want to consider the constitutional legality of the Supreme Court..a quick reading of the 1707 Treaty (changing which, incidentally, is as much beyond the scope and competence of Westminster as unilaterally altering the Treaties of Rome or Versailles or Utrecht) would strongly suggest that the SC is not a legally valid body in itself.
    Sovereignty…principles of sovereignty are not just the same in English and Scottish constitutional law. Failure to take that into account plays right inot the hands of the Gnats.

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