Friday 11 November 2011

Self-determination is a right

According to international law, all nations have the right to decide for themselves whether, and to what extent, they should exercise sovereignty directly, share that sovereignty with others, or even completely subsume themselves in another entity.  The ‘right’ to self-determination does not mandate any nation to use that right in any particular way.
But international law does not attempt to define what a ‘nation’ actually is.  That’s no surprise; many of those of us who have thought long and hard about what constitutes a ‘nation’ would also struggle to provide a clear, unambiguous, and objective definition.  What is clear, however, is that whatever a ‘nation’ is, it has the right to determine its own status in the world without external compulsion or interference.
In posting today about the possible attempt by the UK Government to hi-jack the independence referendum in Scotland, Peter Black makes the sweeping statement that “Scotland is not in a position to decide its own fate”.  And insisting, as he does, that “the consent of the rest of the United Kingdom will be necessary for any change” runs directly counter to the principle that self-determination can be exercised without external interference.
It seems that the Lib Dems either don’t accept international law, or else don’t agree that Scotland is a nation.  I can’t see any other rationale for making such statements.  Worse, the statements seem to be based on the highly illiberal premise that sovereignty belongs to the centre rather than the people.
There are arguments both for and against independence, whether we’re talking about Scotland or Wales.  And it is perfectly proper that people put those arguments to the people of Scotland in advance of their referendum, so that the people have the opportunity to make an informed decision on their own future.  But arguing that they have no right to make their own decision, or trying to take control of the referendum process is not only wrong, it’s also likely to be self-defeating.


Jeff Jones said...

John you should read the very interesting evidence provided by Prof Adam Tomkins to the Scottish Select Committee. The simple fact is that in law only the UK government can organise a binding referendum on Scottish Independence. The problem since May is that too many people with a pro nationalist viewpoit have got a little carried away in my opinion by the success of the SNP.As more and more evidence being presented to the Scottish Affairs Select Committee shows the nuts and bolts of independence are a bit more complicated than Salmond and others seem to suggest.The experience of Quebec where at one point independence was seen as a shoo in should act as a lesson for all nationalists.

John Dixon said...


"in law only the UK government can organise a binding referendum on Scottish Independence"

I take the point, particularly with the inclusion of the word 'binding'. There's probably an interesting debate to be had about whether, and to what extent, law passed by any state can over-ride rights granted by international law. But for those of us who start from the premise that sovereignty belongs to the people, not to the 'monarch-in-parliament', the right of the people in any area to take back whatever level of sovereignty they decide is absolute.

The proviso, of course is that they also have to accept the full responsibilities which go with that.

"the nuts and bolts of independence are a bit more complicated than Salmond and others seem to suggest"

Debates such as this always end up being over-simplified in public, but I doubt that the complexities will come as any surprise to Alex, even if they surprise others. And I don't doubt that there will be those who do their very best to heap complexity on complexity. But experience elsewhere shows that there are no insurmountable obstacles to any nation becoming independent, if that is what the people want.

"The experience of Quebec where at one point independence was seen as a shoo in should act as a lesson for all nationalists"

On that point, I entirely agree with you. I think that things are being taken as read when they are far from being settled, and opinion may well shift as people come to understand more fully the implications. My basic point stands, though. Ultimately, it has to be a decision for the people of Scotland to take; and the more interference there is in that, the more likely it is that interference becomes self-defeating.

glynbeddau said...

I'm repeating the comment I made on Peter Blacs Blog

We have been here before.

No man has the right to fix the boundary to the march of a nation.
No man has the right to say to his country "Thus far shalt thou go and no further".

Charles Stuart Parnell Cork Address 1885

Anonymous said...

Alan Trench discusses the remarks Jeff Jones is referring to here-

Jeff Jones said...

I don't think any UK politician is arguing that there should be no referendum on Scottish Independence. Both Tory and Labour politicians in the words of Wendy Alexander want to' Bring it on.' Look at Michael Forsyth's amendment to the Scotland Bill. The issue revolves around the constitutional issue of which political institution has the right to call a binding referendum and the composition of the question. For political reasons Salmond is obviously trying to keep control of the whole process. The argument basically is he in law entitled to do this. The answer from a number of legal experts suggests that he isn't. This wouldn't ,of course stop him trying to hold a referendum as part of his campaign to show that English politicians are somehow ignoring the wishes of the Scottish people. It's all basically a Braveheart approach to political change appealing to the heart and not the head. His problem now is that Unionist politicians it seems have now decided to set the agenda. What Salmond does not want is a straight forward yes or no referendum at a time not of his chosing. Aidan O'Neill QC has even argued last week that any referendum should be UK wide. He poses the question of what if a majority in the UK then voted for an Independent Scotland whilst in Scotlan itself the proposition was rejected. There are plenty of English voters who would be tempted to get rid of the Scots. It would also get rid of the effective Scottish veto on Barnett Reform which also might appeal to many voters in Wales.

Unknown said...

"For political reasons Salmond is obviously trying to keep control of the whole process. The argument basically is he in law entitled to do this."

The argument isn't that. It's generally that the mandate for the referendum comes from the Scottish Parliament having a pro-independence majority dating from the March elections to that parliament. The Westminster Parliament has no such mandate. This is a basic question of democracy and universal rights.

maen_tramgwydd said...

It's a hair-splitting debate - an irrelevance.

Where tensions develop between the sovereignty of the people and the sovereignty of Parliament (I believe the UK parliament is unique in that sense) the former will always win.

Diceyan theories are one thing, reality and practicalities are entirely another.

Law, as laid down by Parliament can only be enforced by common consent. It can't ultimately override the opinion of the people.

If the Scots demonstrate a clear desire for independence, there's damn all that Parliament, the Supreme Court, Peter Black or anyone else can do about it.

If Salmond holds a referendum and gets a clear majority, that's it, the Union is finished - short of the lunacy of sending in the British Army - where civil war would follow. That is not a course which even the arch-unionist Tories would countenance.

John Dixon said...

I sort of agree with Jeff, Ramblings, and maen_tramgwydd on this, even though the three of you are saying rather different and apparently contradictory things.

In strictly legalistic terms, I don't doubt that Jeff is right; all powers vested in the Scottish Parliament are so vested by the crown-in-parliament, and any acts oustide those powers are illegal. That's what devolution is - power retained. But that legalistic view is based on the explicit assumption in the (unwritten) British constitution that power 'belongs' to the crown (because God gave it to the monarch), and that the monarch has graciously shared that power with parliament. Those who are happy to accept that sovereignty properly and rightly belongs to the crown, and those expert lawyers trained to uphold the law, will inevitably conclude that anything running contrary to that is, by definition, illegal. That, I think, is the basis of the opinion of the experts quoted by Jeff.

If, however, one chooses to work on the basis that sovereignty actually resides with the people, then one would come to a different conclusion. It's not one which I'd expect any court constituted under parliamentary authority to uphold, but it's where we stop looking at legal authority and start looking at democratic authority. And there is no doubt in my mind that Alex Salmond has the democratic authority to organise a referendum, even if the crown-in-parliament doesn't agree.

And that's ultimately why I disagree with Jeff on this - it simply isn't an issue on which it is sensible to rely on law and the courts. Even from the perspective of those who disagree with Salmond, resorting to the law in order to frustrate the democratic mandate handed to Salmond by the people of Scotland will be counter-productive.

Which leads me on to agreeing with maen_tramgwydd. As we say in Welsh 'Trech Gwlad nag Arglwydd'; in a confrontation between the democracy and law, democracy will ultimately win.

I don't doubt that esteemed professers and lawyers will continue to debate the legality of what the SNP propose. They may even start legal proceedings. It is all likely to be self-defeating though - if they're really serious about stopping Salmond, they need to have recourse to politics, not law.

Jeff Jones said...

I don't think that there will be legal proceedings because the UK Parliament will set in train the process to set a date for a referendum using the SNP success as the basis for this move. The question will be a simple variant of does the voter wish Scotland to leave the UK with the wording porduced by the Electoral Commission. Salmond's problem is that he is trying to be too clever with his proposed multi response referendum arguing that a majority for devomax and full independence combined equals a mandate for independence. The UK government will call his bluff and present a straight choice of yes or no to full independence. Frankly very few people will lose much sleep if Scotland voted yes. The Scots will have to live with the consequences of trying to negotiate the aftermath of such a result with the rest of the UK and the EU.

maen_tramgwydd said...

Jeff Jones

How do you think the Scots will respond to being railroaded by a right-wing Tory PM (whose party has one Scottish MP) in London into voting in a referendum on his terms?

Spirit of BME said...

I am with maen_tramgwydd all the way on this one. However your explanation about monarchy, God and sovereignty is also on the button, but as the legitimacy of her powers are given to her by the Church of England, being a Capel Wesla boy – do I care!!
Dear, dear Betty Battenberg in her Coronation Oath given before the Anglican God, under took to up hold and defend the Empire – I must have missed some of the referendums.

Unknown said...

Windy Alexander, and her unionist, London friends says 'bring it on' - now! - so why did they spend the last 4 years blocking the SNP referendum proposals in the Scottish parliament?

The only reason the Unionists are using these arcane and obscure legalistic arguments is that they have no positive arguments to offer for retaining the union. Scottish people are not stupid, and if Cameron forces the issue, I predict the majority for secession will be even larger.

Salmond is playing them all like a violin, and they haven't realised it yet!

Cibwr said...

Many Scottish constitutionalist would argue that in Scotland sovereignty lies with the people not with the crown in parliament - that is the Scottish constitutional position. Unfortunately this is not tested in the courts but lies at the root of the Claim of Rights.

However this is about politics, yes a strict interpretation of the law says that only the UK parliament can call a binding referendum, but practical politics would make it political suicide to try to block the Scottish Parliament from voting one through.

John Dixon said...

Clearly, Cameron is seriously considering the option of taking control by holding the referendum at a time of his choice and on a question of his choice. That might be right legally, but I continue to doubt the political wisdom of it.

One of the problems with referenda is that everyone wants to set the question in a way that encourages the answer that they want to see - it's extremely difficult to pose an entirely 'neutral' question. It's possible, of course, that Cameron genuinely believes that the sort of question Jeff suggests 'Do you want Scotland to leave the UK' is neutral; but it won't look that way to others. (And I'm not arguing that Salmond wouldn't also want to phrase the question in a way which suits his agenda).

Whilst from Cameron's perspective, holding a quick referendum on a single question of his choosing might appear to be giving him control of the situation, there are a lot of people in Scotland who would see it as a loaded question and an attempt to restrict their choice. Cognitive bias is in danger of driving Cameron into a corner where he makes the choice of action which least guarantees the outcome that he says he wants.

Cibwr's point about where sovereignty lies is an interesting one in that it raises the question of whether Scotland's unwritten constitution varies here from Engalnd's unwritten constitution, opening the possibility that something struck down in the English courts might not be struck down in the Scottish courts. I think it's irrelevant though; the issue is, at heart, a political one, not a legal one, and it's best for all to see it in those terms.

I remain unconvinced that the appetite for independence in Scotland is as great as some think, but I am convinced that there is an appetite for further devolution. Cameron might think that a one-question referendum would shoot the independent fox, but I suspect that it would either frustrate that desire for further devolution or else drive more people into the independence camp. Neither would really help to ascertain the views of the Scottish people, and neither would really settle the issue for very long.

Unknown said...

Point of information - as I understand it the argument about advisory and binding referendums is pure nonsense, as there is no provision for binding plebiscites in the UK - even if called by Westminster. They are all advisory.

The SNP haven't even started campaigning for indepdendence yet - they don't need to! They can leave the disarray and negativity of the unionists to do that for them -

And as Gerry Hassan explains HERE , a London imposed referendum would bode ill for the Unionist parties.