Prof Paul Cairney has dismissed claims that Scotland cannot hold an
independence referendum as an attempt to "muddy the waters"
Scottish independence: Experts dismiss claim Scotland has ‘no right’ to hold referendum
by Emily Badiozzaman
A leading expert on Scottish politics has dismissed Unionist politicians’ claims that Scotland cannot hold a legally binding referendum as an attempt to “haggle” and “muddy the waters”.
Professor Paul Cairney, a specialist in devolution at the University of Aberdeen, has said that there should not be a difference of opinion over the legality of the independence referendum. He stated that discrepancies over wording and legality are only being focussed on to distract from what should be a straightforward political process.
Willie Sullivan, Director of the Electoral Reform Society, agreed stating that the issue of the referendum should be “solely one of political legitimacy, not a question for the law courts.”
The development comes after a Labour-led Commons Scottish Affairs Committee released a report claiming that “neither the Scottish Parliament nor the Scottish ministers have the legal powers” to hold an independence referendum.
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In response to the Committee report Canon Kenyon Wright, former chair of the Scottish Constitutional Convention, publicly warned Westminster MPs not to try and dictate the terms of the referendum. Canon Wright said that the Scottish people are sovereign and therefore have the explicit right to decide on a form of government of their own choosing.
Scotland’s Advocate General Lord Wallace who is a former leader of the Liberal Democrats in Scotland, claimed that Holyrood had no power to deliver a referendum of any kind and to do so would flout a “fundamental principle of democracy”.
However, Professor Cairney, who specialises in devolution and is widely published in leading political journals, highlighted the fact that the legal technicalities of the referendum are of little concern as it is a consultative referendum.
Mr Sullivan added that “such a referendum in and of itself would not alter the constitution, it would just tell politicians what the populace prefer.”
The report claims that in setting up the Scottish parliament in 1997 the Scottish government surrendered constitutional decisions to the UK parliament.
Aidan O’Neill QC, one of Scotland’s leading lawyers said that “neither the Scottish Parliament nor the Scottish ministers have the legal powers” to hold an independence referendum under the terms of the Scotland Act of 1998 that led to devolution.
Following claims that a referendum bill from Holyrood could be clogged up in the courts for years, the Labour-dominated committee argued that it would be beneficial to both the UK government and the Scottish government to come to an agreement regarding the process so that the referendum could be held within an “appropriate timescale.”
Committee chairman Ian Davidson, a Labour MP, said “It is clear from our evidence the Scottish parliament has no powers to hold either a binding or an advisory referendum on constitutional change. It is also clear any attempt to do so would result in legal disputes and delay.”
The SNP insist that the Scottish government is legally entitled to hold a referendum. For his part, First Minister Alex Salmond has shown a willingness to accommodate the UK government's legal perspective so long as no "strings" are attached.
Scottish Times reported in February that Europe has been asked by the Scottish Democratic Alliance (SDA) to monitor Scotland’s independence referendum due to fears that it will be manipulated by Westminster, reflecting concerns across Scottish civic society of external involvement in Scotland's referendum from London.
The issue has the potential to violate the United Nations and European right to self-determination law. Under international law, nations have the right to freely choose their sovereignty and political status with no external compulsion or interference.
Professor Cairney argues that turning the spotlight on to the legality of the referendum is a tactic being used by Conservatives who are "on the back foot". Observers are increasingly viewing the legalistic approach as a tool to apply pressure to bring the referendum forward to the earliest possible date, as the Conservatives estimate that there will be a higher likelihood of a negative outcome.
Mr Sullivan also made the point that the last election saw a majority win for the SNP whose clear manifesto commitment was to hold a referendum on independence.
He said “It would seem difficult to argue, therefore, that the Scottish parliament does not have the political legitimacy to test citizens' views on the constitution through a referendum, and one must question the motives of those who would threaten to undermine such a mandate through the courts.”
Realistically, by pushing for the poll to be held as soon as possible, Unionist pressure diminishes the opportunity for much needed political and public debate. By putting up a legal smokescreen, Scots are being distracted from receiving fundamental information that would enable the nation to make a well-informed decision about the future of Scotland in 2014.
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The charter says it all, time Westminster answered these things and ie " Will Westminster adhere to the charter or not?
“The right of identifiable âpeoplesâ like the Scots to decide their own future, and run their own affairs, is one of the most basic principles of international law. It is stressed right in the very first article of the Charter of the United Nations Organisation, which sets out the purposes of the UN. The two main instruments of international law that codify self-determination are the UN International Covenant on Civil and Political Rights, and the UN International Covenant on Economic, Social and Cultural Rights, both of which expand Article 1 Par. 2 of the Charter into more detailed statements.
The first articles of both of these Covenants are identical, thus:-
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. It should be noted that Paragraph 3 lays down an obligation to actively promote the right of self-determination, in addition to respecting it.”
This international law does not relate directly to independence or any other particular form of government. It is completely neutral in that respect.
What it does is to guarantee the Scottish people an absolute right to make their own decision on what form of government they want, to decide that in their own time, and with no interference by anyone else, in London or elsewhere.
It is therefore totally untrue that the Scots must ask permission to hold a referendum on independence, to do so at any particular moment, or that London has any right of veto over their decision. As a nation falling comfortably within the United Nations definition of a âpeopleâ entitled to exercise the right of self-determination, it is up to the Scots, and them alone, to decide their own future and the form of government they wish to adopt.