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There was an interesting show on R4 on the run up to the referendum, where some clever men were discussing whether, in the event of a Yes vote, was it even legal that Scotland could secede from the Union.

 

The argument went that (in the event that Scotland voted Yes) Parliament could not grant Scotland independence as the Union and the UK parliament were not, legally, able to and that the Act of Union, which in itself was not an Act at all, more of an International treaty between Scotland and England could not be broken by the UK parliament as it had no jurisdiction to do so.

 

I never managed to listen to the full programme but it was very interesting.

 

This sounds interesting. Have you got any links to anything to help expand on this?

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I couldn't find a link to any programs, but I did find this. I've bolded some parts that I think nails the argument that the constitution has it. I do agree with the SNP assertion in the fourth para. that all a 'YES' vote in a referendum does is give the SNP a mandate to negotiate with Westminster for independence whereby Westminster renounces sovereignity of Scotland. This would be similar to what Pierre Trudeau did when he negotiated the repatriation of The British North America Act for Canada in 1982. This lead to old British Acts being updated and became known as Canada Acts.. This left Canada as being a Democratic, or Constitutional, Monarchy whereby Parliament makes the laws and the Queen is head of state, and in her absence she is represented by the Governor General. It is possible that Westminster could still refuse to pass the necessary legislation to pave the way for independence, but I don't know why they would do that.

The last para. is, in my opinion, just SNP bluster.

So, I guess Scotland is not the only country in the Union who has to negotiate its independence - legally.

 

 

Union

 

From 1603, Scotland and England shared the same monarch in a personal union when James VI of Scotland was declared King of England and Ireland in what was known as the Union of the Crowns. After James VII of Scotland (II of England) was deposed in 1688 amid Catholic-Protestant disputes, and as the line of Protestant Stuarts showed signs of failing (as indeed occurred in 1714), English fears that Scotland would go its own way led to the formal union of the two kingdoms in 1707, with the Treaty of Union and subsequent Acts of Union, to form the Kingdom of Great Britain. Major Scottish resistance to the union, led by descendants of James VII/II including Bonnie Prince Charlie, continued until 1746.

 

 

Legality and legitimacy

 

Because the Scottish independence referendum, 2014 was authorized by an Order in Council, approved by both chambers of Parliament, its constitutional legality is not in doubt. The Edinburgh Agreement (2012) between the Scottish Parliament and the UK Parliament states that both governments will accept the outcome of the referendum and thereafter will "continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom".

 

The legality and legitimacy of a Scottish secession outside the temporary authority granted until the end of 2014 has been much debated.

 

The UK Parliament retains parliamentary sovereignty over the United Kingdom as a whole. This claim was endorsed by Lord Bingham of Cornhill in Jackson v Attorney General who argued that then [in 1911], as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished" and by the Supreme Court in AXA General Insurance Ltd and others v HM Advocate and others. The Deputy President, Lord Hope of Craighead, stated that "the sovereignty of the Crown in Parliament ... is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament." However, the application of the principle of parliamentary sovereignty to Scotland has been disputed. In MacCormick v The Lord Advocate, the Lord President of the Court of Session, Lord Cooper of Culross stated obiter dicta {this is just a judges opinion but has no legal bearing on the case} that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law." It has been suggested that the doctrine of popular sovereignty, proclaimed in the 1320 Declaration of Arbroath, articulated by Scottish political thinkers like George Buchanan and reasserted by the Claim of Right 1989, is of greater relevance to Scotland.

 

The legality of any British constituent country attaining de facto independence (in the same manner as the violent origins of the Irish Republic) or declaring unilateral independence outside the framework of British constitutional convention is dubious. Some legal opinion following the Supreme Court of Canada's decision on what steps Quebec would need to take to secede is that Scotland would be unable to unilaterally declare independence under international law if the British government permitted a referendum on an unambiguous question on secession. The SNP have not argued for a unilateral act, but rather claim that a positive vote for independence in a referendum would have "enormous moral and political force... impossible for a future [Westminster] government to ignore", and hence would give the Scottish Parliament a mandate to negotiate for the passage of an act of the UK Parliament providing for Scotland's secession, in which Westminster renounces its sovereignty over Scotland.

 

Some arguments appeal to rule according to higher law. For example, the United Nations Charter enshrines the right of peoples to self-determination, and the Universal Declaration of Human Rights also guarantees peoples' right to change nationality; the UK is a signatory to both documents. Politicians in both the Scottish and British parliaments have endorsed the right of the Scottish people to self-determination, including former UK Prime Ministers John Major and Margaret Thatcher. The Claim of Right 1989 {This document has never had any legal force, and remains a statement of popular opinion.} was signed by every then-serving Scottish Labour and Scottish Liberal Democrat MP, with the exception of Tam Dalyell.

 

There is some contention as to who represents the people of Scotland in the matter of the constitution, especially in light of the Scottish Government's insistence that the SNP's majority in the Scottish Parliament provides a mandate for an independence referendum. This is because the electorate voted for their MP, not their MSP, to represent them on issues of the constitution. In late September 2014 leaders of the SNP, including the First Minister of the Scottish Parliament, reaffirmed their belief that Scottish independence could be achieved by means of a majority vote in the Scottish Parliament, citing this as an alternative to the referendum route.

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The last para. is, in my opinion, just SNP bluster.

 

 

There is some contention as to who represents the people of Scotland in the matter of the constitution, especially in light of the Scottish Government's insistence that the SNP's majority in the Scottish Parliament provides a mandate for an independence referendum. This is because the electorate voted for their MP, not their MSP, to represent them on issues of the constitution. In late September 2014 leaders of the SNP, including the First Minister of the Scottish Parliament, reaffirmed their belief that Scottish independence could be achieved by means of a majority vote in the Scottish Parliament, citing this as an alternative to the referendum route.

 

That's the problem of relying on wikipedia - 50% of it is mince; you're just never sure which 50%.

 

Salmond, of course, did not say what he is reported to have said (par for the course).

 

What he actually said was :" “The referendum route was one of my choosing, it was my policy. I thought that was the right way to proceed but, of course, there are a whole range of ways Scotland can improve its position in pursuit of Scottish independence.

“There is a parliamentary route where people can make their voice heard as well, so a referendum is only one of a number of routes.”

 

Saying that a majority SNP administration allows the Scottish people to make their voice hear to improve their position is not saying that an SNP majority would declare UDI.

Not only would it probably be illegal, you'd find very, very few people in the Yes movement who would support it and no-one within the SNP leadership - so it can hardly be be SNP bluster when the SNP aren't saying it.

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That's the problem of relying on wikipedia - 50% of it is mince; you're just never sure which 50%.

 

Salmond, of course, did not say what he is reported to have said (par for the course).

 

What he actually said was :" “The referendum route was one of my choosing, it was my policy. I thought that was the right way to proceed but, of course, there are a whole range of ways Scotland can improve its position in pursuit of Scottish independence.

“There is a parliamentary route where people can make their voice heard as well, so a referendum is only one of a number of routes.”

 

Saying that a majority SNP administration allows the Scottish people to make their voice hear to improve their position is not saying that an SNP majority would declare UDI.

Not only would it probably be illegal, you'd find very, very few people in the Yes movement who would support it and no-one within the SNP leadership - so it can hardly be be SNP bluster when the SNP aren't saying it.

 

 

Now which %age of wee Eck's utterances should we consider to be mince? 50%, 60% or maybe 100%? The laws and constitution as they stand, no matter how much wee Eck tries to bluff, are rock solid. Do you want us to ignore the constitution?

I didn't think so, bud, you have too much intelligence for that.

The only way Scotland can improve its position in pursuit of independence is to win at the ballot box. Long live the Union.

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