Legal flaw in poll argument

While constitutional lawyers get into a tussle over who has the authority to run a referendum on Scottish independence it would be worth noting that things are much more complex than the media seem to suggest at present.

While it is true that under UK constitutional law the Scottish Parliament does not have the legal authority to hold such a referendum and declare independence, I am afraid UK constitutional law goes out the window in such matters.

Technically, the UK parliament would have to pass an act in order for Scotland to become independent.

This is so that the legal entity of the “United Kingdom” could continue after an act is passed for Scotland to become independent and that the UK could continue. However, it cannot be said that this is fundamental for a referendum on independence to be held, as some Westminster politicians seem to think at present.

I have never heard of a case where a country has had to be “granted” independence from the mother country that it was a part of.

This fundamentalist view of Westminster parliamentary sovereignty ignores common sense and could end up breaching the United Nations’ human rights charter, which is binding under international law and recognises the right of self-determination.

If the SNP was to hold a referendum, regardless of whether it was “binding” or “legal” or any other such vocabulary that could be used, and there were a “Yes” vote, this would be recognised by governments as a unilateral declaration of independence.

At present the picture is less clear as the SNP wishes to “consult” the Scottish people and then “negotiate” with the UK government and so it is not technically going down this form of referendum for a number of complex reasons – it is playing Westminster’s game. One thing is for certain – some of the vocabulary used at Westminster just now is reverting to the doctrine of parliamentary sovereignty.

This fundamentalist view that everything is certain and that the Scottish Parliament has “no right” to hold such a referendum or “declare” independence is not just absurd or would break international law but it will not help the Unionist case and could ultimately push the people of Scotland to independence anyway.

Jack Fraser

Ladys Walk

Melrose