Dr Matt Qvortrup: Scotland does not need permission to go it alone

Published on Wednesday 11 January 2012 00:00

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.

Leaving aside the issue of whether Scotland should become independent or not, it is important that things are done in accordance with accepted principles of constitutional and international law.

The basic principle in international law is that the seceding country (in this case Scotland) decides whether it wants to become independent.

To use but two examples, Montenegro did not have to ask Serbia to secede in 2006, nor did Estonia seek the Soviet Union’s permission to become independent in 1990 and clearly it would not have been granted it.

The fundamental rule is that countries become independent when they are recognised by the international community.

According to the so-called Estrada Doctrine, if Scotland votes for independence (and if the government is in control of the territory) then the international community will in all likelihood recognise the new state. Just like the cases of the former Soviet states in the 1990s.

Of course, it is possible that only a narrow majority votes for independence. But this need not be fatal. When Malta voted for independence in 1965, only a little more than 50 percent voted to sever the ties with Britain, yet Westminster still accepted the outcome.

So unless London wants to follow the Soviet Union in 1990, it cannot block Scottish independence. The only ones who can do so are the Scottish voters and the Scottish administration. Thus is the doctrine of self-determination, which has been recognised as a fundamental principle of international politics and law since it was established by US President Woodrow Wilson after the First World War.

So the international case is clear – and runs counter – to Michael Moore. But what about domestic law?

When the Scottish Parliament was established, the Scotland Act 1998 stipulated a number of areas that would be the preserve of Holyrood and some that would remain in Westminster. The coalition argues that the Scottish government is not allowed to hold a referendum under Section 30 of the Scotland Act. To do so would be beyond its mandate.

But this argument falls at two hurdles. Firstly, referendums in the UK have tended to be advisory only. Referendums in this country are not legally binding – though they may be politically binding. Until the Welsh referendum in 2011, all referendums in the UK were non-binding. To require that a Scottish referendum should be anything other than advisory would be highly unusual, and it would be difficult to justify on legal let alone on political grounds.

Lastly, Michael Moore believes that a referendum could be challenged in the courts. This is highly unlikely. The assumption is that the Supreme Court could declare a secession referendum illegal or void. But the Supreme Court is frankly unlikely to do that. Indeed in the case AXA v The Lord Advocate (2011), the only case to have dealt with the limits of the powers of the Scottish Parliament to date, the Supreme Court refused to declare an Act of the Scottish Parliament void.

The court held that it respected “the judgment of [an] elected body as to what is in the public interest”. It seems unlikely that the Supreme Court would rule otherwise on an issue which was a manifesto commitment of the elected government of Scotland

• Dr Matt Qvortrup is author of A Comparative Study of Referendums (Manchester University Press)

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Jock MacSporran

Friday, January 13, 2012 at 08:11 PM

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." "WHEN Michael Moore spoke to Nick Clark on BBC News Channel on 9 May 2011 he had a simple message:''The decision on when and if to have a referendum is clearly a matter for the new Scottish parliament." Maybe one of the unionist geniuses on here would like to explain what this makes Michael Moore?

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GordonMcShean

Thursday, January 12, 2012 at 04:50 AM

When the Scottish National Party's National Secretary, Robert Curran, went into exile in New York he feared that his involvement in organizing the 1953 Scottish Republican Army armoury raid in Johnstone (and his later planning for Latin American "young Scots' activist training programmes") might be discovered. One can only presume that he alerted fellow SNP executives. Curran - a friend - also alerted me. I'd been a participant in a number of these"escapades" (documented in my recently published memoir RETIRED TERRORIST). He would certainly have had concerns that the party might be damaged by media exposure. But police investigations failed to determine any substantial information about those behind the raid. Few disclosures resulted - but poor Bill Brown had to spend some months behind bars for "theft". It would be a couple of years before Curran risked returning to Scotland, accepting a lesser role within the party (while I remained permanently in exile). It is notable that the SNP has preserved its reputation as a politically astute force in the years since (a role that some of us have called "gutless"). Now, a number of SNP leaders may be able to take credit for Scotland arranging a credible referendum. If we can get support from European political theorists and finally achieve recognition, the determination to avoid conflict may prove to have been worthwhile. GORDON MCSHEAN

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10

proudScot

Thursday, January 12, 2012 at 12:59 AM

"But England has no national parliament, so I would assume that there is no physical way that if England wanted to get out of the UK and become independent it could do it." Why not just ask the UK government to setup an English parliament. It has done so for the other 3 countries, I can't see it refusing England.

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samcoldstream

Wednesday, January 11, 2012 at 08:36 PM

It is interesting to note that Scotland AND England are not sovereign States but are hog- tied to each other in a 304 year old Union to which only a handful of people originally agreed? Should the Nationalist Party be foolish enough to abandon its democratic principles and take the reckless decision to declare secession then how would Westminster stop it? By economic sanctions, air, land and sea blockades, by freezing the movement of capitalcurrency, or by force? Would it call for the arrest of every member of the Scottish Government? This would be a political nightmare!

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Abcde54321

Wednesday, January 11, 2012 at 05:40 PM

That seems an interesting point that you listed - "The basic principle in international law is that the seceding country (in this case Scotland) decides whether it wants to become independent." Now, Scotland is obvious because of the Holyrood Parliament, and similar situation apply for Wales and Norhern Ireland as they also have devolved government. But England has no national parliament, so I would assume that there is no physicl way that if England wanted to get out of the UK and become independent it could do it. As you state, the UK parliament can't evict a country so they are ruled out from acting and no other parliamentary bodies are available to instigate the breakaway.

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samcoldstream

Wednesday, January 11, 2012 at 02:24 PM

Should the Nationalist Party ever be reckless enough to take such an undemocratic course of action to achieve Independence then Westminster would have no alternative but to repeal the Scotland Act, and recall powers to the Centre but how would this be enforced?

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6

WOTTPI

Wednesday, January 11, 2012 at 09:40 AM

Please Google 'UK government 'will not block' Scotland referendum BBC 9 May 2011' If you want to see a video clip Michael Moore clearly stating that the referendum its process and timing is a matter for the Scottish parliament. He also goes on to say it was not a prioirty as the main focus should be on sorting out the economy. Alex Salmond is just doing what Michael Moore suggested. Why is this plonker now changing his tune in 8 months? Could it be his puppet masters pulling the strings?

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douglas-home rule

Wednesday, January 11, 2012 at 09:21 AM

Well argued Dr Qvortrup, but the truth is that, with facts like that, you are unlikely to play much of a part in this debate, sadly for us.

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allymax

Wednesday, January 11, 2012 at 05:33 AM

"Michael Moore, the Scottish secretary, confirmed that the UK government's legal advice was that the Scottish parliament currently had no legal authority to stage the referendum in any form, ... He said the UK government's law officers, including the Attorney General Dominic Grieve, had ruled that under the Scotland Act 1998, Holyrood was explicitly barred from passing any measure which affected the UK's constitution. If Salmond tried to stage a referendum the UK government or private citizens could get it struck down as unlawful by the UK supreme court." That was a quote from a Guardian columnist today. Wait a minute, haven't we heard this Westminster lie before ? Wasn't it from Westminster Attorney General Goldsmith who told Tony Bliar the Iraq war was 'legal', when in fact it wasn't ?? Me thinks Westminster are liars ! Scotland will be independent come 2016. Good bye Westminster. We never loved you. allymax.

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3

Proud Doonhamer

Wednesday, January 11, 2012 at 02:01 AM

1. It is what they do. Why stop now after 350 years of deceit?

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Beachdair

Wednesday, January 11, 2012 at 01:25 AM

Regardless of who carries out the organisation of the referendum, it should be supervised and monitored by Europe's largest institution, the 56-member Organisation for Security and Cooperation in Europe. It was the OSCE that ended the Cold War and disarmed Europe, and it remains a crucial diplomatic actor in many trouble spots. To date the OSCE Parliament in Copenhagen has monitored more than 130 national elections and referendums using over 30,000 diplomatic observers, in order to ensure fairness and objectivity. Calling in the OSCE is the obvious course to take in order to obviate any claims of imbalance or lack of objectivity. Also, as reader 'douglas-home rule 'pointed out in yesterday's Scotsman, "As was evident in the Welsh and AV referenda, the Electoral Commission is not fit for purpose.

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1

The Harder They Come

Wednesday, January 11, 2012 at 12:15 AM

Why is the UK Government lying to Scots?

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