Who decides?

“Where do we need to retain a UK-wide approach? And where can power returning from Brussels be transferred direct to the Scottish Parliament and other devolved institutions?” – David Mundell

Wrong question! The essential question is, not what the arrangements are, but who decides what the arrangements are.

Only the people of Scotland have the rightful authority to determine the powers of their Parliament. The Parliament which they elect. The only Parliament which has true democratic legitimacy.

It is simply not sustainable that the Scottish Parliament can be overruled by a cabal of British politicians who have been rejected by the people of Scotland. That situation cannot be maintained by normal democratic political means. The British state must, therefore, turn to increasingly undemocratic and anti-democratic measures as it strives to preserve its structures of power, privilege and patronage.

That being the case, the next pertinent question must ask to what extent Unionists in Scotland are prepared to see democracy eroded. Where do they draw the line? When do they decide enough is enough? Is there a point at which they feel obliged to put principle before ideology? Or is it truly a case of ‘The Union At Any Cost!’?

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22 thoughts on “Who decides?

  1. William Ross

    Peter

    I am sorry to say that this article makes absolutely no sense. The Scottish Parliament is entirely a creature of a Westminster statute. Scotland had an Independence Referendum in 2014 but a majority voted to stay in the Union. Thus, the statement ” Only the people of Scotland have the rightful authority to determine the powers of their Parliament ” is rot.

    The Constitution and Foreign Policy are reserved matters.

    I also voted YES in 2014 but the current legal structure is clear.

    William

    1. Raymond Reid

      They were conned into voting no by a bunch of Tory and Labour and lkb/dems liars,and they still believe them.

    2. Lorna Campbell (LC)

      Mr Ross, the Scottish parliament itself, in relation to devolution, is indeed a creature of a Westminster statute, but the Treaties of Union imply quite specifically, that Scotland is an equal partner in the Union and that the English parliament was also rendered defunct by said Treaties. Had we had an SNP government at the time of devolution, we might now be in a very different scenario. The fact that nothing that Westminster/Whitehall have done that is blatantly ultra vires has been challenged by the three main UK Unionist parties because it their remit to do nothing at all that will help Scotland. When you sign up to be a leader of any of the three, you must acknowledge your allegiance to the UK – and, by extension, England. That is the real reason why so many of the terms of the Treaties have been shamelessly and illegally broken. There is now no excuse not to challenge the illegalities legally, as Gina Miller has done, in England, over aspects of Westminster’s presumption of hegemony. The only obstacle is the Supreme Court which has already ruled that Westminster is sovereign even over devolution. That needs to be challenged from the perspective of the Treaties which do not cite English sovereignty as paramount in the new UK parliament. Sovereignty of parliament is a peculiarly English concept and wholly alien to Scotland. If we are equal partners, it cannot be imposed on us. Mr Cameron quietly dropped the Crawford and Boyle report, with which he hoped to hammer the Scots into submission. However, implications for r/UK or England contained therein meant that he had to kick it into touch. We need to be smart and start using the law, both domestic and international to kick Westminster hegemony over Scotland into touch – and very soon.

  2. Lorna Campbell (LC)

    What is the difference between Gina Miller and the Scots? The former has used the very law that Westminster/Whitehall idolises and purloins against them, and, on two occasions, has won her legal point.

    The Scots – those who want independence and even those who do not – have been told by the Supreme Court that Holyrood and the Scottish government has no remit to bring a law case against Westminster/Whitehall, but must stick to the political path – which, of course, is heavily populated by English MPs, I believe, around 6-1 (taking all three devolved administrative areas together), so not much chance there either.

    Where Scotland has fallen down in the past (and the SNP are no different, I’m afraid to say) is in challenging the Treaty of Union. The two treaties (Scottish and English) were, and still are, international agreements between two independent sovereign nation states. In those treaties, it is made quite plain that BOTH the Scottish and the English parliaments were defunct and that a new UK parliament grew like a phoenix from the ashes of both. Many of the other terms involve mutual agreements about off-setting debt and accessing colonies, so we can see, from reading the terms that they were intended by the jurists, both Scottish and English, to be mutually efficacious documents (i.e. conferring equality and parity). Their terms were then ratified as Acts and adopted into domestic legislation in both English AND Scots law, but, in no way did that mean: a) that the treaties were now no longer in existence; or b) that they created a hybrid English/UK/British parliament parliament.

    Indeed, by adopting the terms of the treaties into domestic law (as well as retaining the treaties, in the international legal framework, as the very creators of the UK, and without which there could be no UK today), the jurists and politicians were saying effectively that a new parliament had been born and that neither Scotland NOR England was top dog: it was a legal underlining in domestic legislation that the new parliament was sovereign. Almost before the ink was dry, the English ruling elite saw fit to begin dismantling some of the assurances insisted on by the Scottish jurists: the deliberate purloining of Scottish civil appeal of last resort by the HoL (now the Supreme Court) was an early act that was ultra vires but never challenged seriously by the Scottish MPs or people. A number of other blatantly illegitimate moves ensured that Scotland was locked into a partnership (sic) that was far from being equal, but which, it became very evident as the years passed, was viewed in England as a ‘hostile takeover’, to use modern parlance, and that Scotland was subsumed by England and became, to all intents and purposes, a colony. All of this was, and still is, ultra vires, according to the Treaties of Union. Most English people see no real need for devolution in England because they regard the Westminster parliament as both British and English, the two being interchangeable. Legally, they are not, and never have been.

    To be British, or UK, means that there must be some element of parity in that concept (United?), but the Brexit debacle has shown that there is none with regard to the devolved administrations. That is why it is perfectly fair to point out that there are few real British nationalists, but many English nationalists; real British nationalists, in all four parts of the UKoGB would pay more than lip service to parity if they truly believed that all four parts of the UK are equal. Now, we have Scots, Welsh and NI at Westminster who should be fighting for every last drop of their respective powers, telling us that some of these powers will not be repatriated to Scotland or Wales or NI, but retained at Westminster, effectively overturning devolution now – again ultra vires within the concept of devolution. It is not simply consent motions that are in danger of being railroaded by the Tories, but the whole notion of devolution itself.

    Essentially, the Scottish government/Holyrood cannot withhold consent where a consent motion is expected, according to the Supreme Court, because Westminster, as the UK parliament is sovereign and may overturn anything it chooses. Does that include already devolved powers, sidelining devolution as set out in law, in order to retain them when they are not reserved? There is no comeback for Scotland or the other two devolved areas because they are mere vessels (and vassals?) of Westminster. At least that would appear to be the constitutional position as laid out by the Court. Scotland’s MPs can fight their corner at Westminster, but only on political grounds, not legal ones, apparently, and it appears unlikely that the three Unionist branch parties will do even that.

    That is why the Treaties of Union should be examined closely and brought before the international courts. What was patently intended to be the basis of the new UK parliament was never put into practice and was undermined from day one by a conniving monarchy of the day and their cohorts in London. If there has been no constitutional adherence to what was intended, with Westminster continuing as the de facto English parliament, as well as masquerading as a very unequal UK/British one, not to mention all the other terms of the Treaties which have been broken unilaterally by the English ruling elite, ably assisted by their slavish creatures in Scotland, the whole basis of the Union falls.

    SNP/wider YES movement, take a leaf out of Gina Miller’s book and get your own constitutional lawyers on to this. Mike Russell is to meet with Jackson Carlaw and Adam Tomkins this week, I believe, to discuss the constitutional implications of the repatriated powers and Brexit itself. Adam Tomkins has been hiding in the open in Scotland, having been the architect of Better Together, of EVEL and of the EU referendum (and I shouldn’t be surprised, Brexit as well, if there has been any planning there). He is not to be trusted on any aspect of Scottish constitutional implications. His sole remit will be to rubbish them. This will be no Tory reaching out of the hand of friendship, however the media have couched it. They will try to wrap Mr Russell in constitutional tape. Just keep saying NO, Mr Russell, and “stopconstitutionalpowergrab2”.

    1. bringiton

      One of the many problems we face with the Westminster establishment is that they only consider sovereignty as relating to parliamentary structures,a very English concept of the crown inheritance.
      As far as they are concerned,Scots gave up their sovereign rights when the parliament in Scotland was abolished.
      They do not accept that Holyrood represents the sovereign rights of the Scottish people but more an extension of the Union parliament to be disposed with when it suits their purpose.
      The problem they have with that is that it flies in the face of internationally accepted standards relating to countries and democratic accountability.
      So…..we are now hearing about one nation,one country,a single market blah blah blah.

      1. mbiyd

        Whatever happened to the case of Mccormick v LA 1953? The obiter was that parliamentary sovereignty was purely an English legal concept?

    2. Peter A Bell Post author

      There is a major problem with going down the route of legal challenge(s) to the Acts of Union. Time! Perhaps it was an option 100 or 50 years ago. But restoring Scotland’s rightful constitutional status is now a matter of extreme urgency.

      It might be that some kind of parallel process is feasible. Something to augment or buttress the political process. But my concern would be that resort to the courts would be used to obstruct that political process.

      It might also be argued that pursuing independence by some alternative means undermines the basis of that political process. If popular sovereignty is absolute and the right of self-determination is inalienable, then what need have we for any other argument? It could be dangerous to allow that either or both of these principles are open to legal debate and subject to arbitration.

      1. Lorna Campbell (LC)

        I absolutely agree that we need to move quickly, but I also believe that we should be appealing to the UN and to the international courts, thus taking the fight to Westminster on at least three fronts. We will need to overtake the 55% of the Unionists in 2014 – I’m afraid they would never settle for less. That means at least 56%, an eleven percentage point shift. Can you see us being able to do that by late 2018/early 2019 without some other push? A second loss would finish us for at least a generation, if not several, and, in that time, we would be out of the EU and suffering in a post-Brexit Tory world that only the most intellectually-challenged can believe will be good for anyone but the Tories themselves. I do not believe we can, democratically, deprive anyone of his or her vote, but we can ensure that only those who are entitled to vote do so. Too many stories of English people using a holiday address as the basis for a vote. Don’t know if they’re factual, but we cannot use anti-democracy to push for democracy, whatever.

    3. Robert Graham

      Thanks for posting a clear summation of where we are , and not where we hope to be ,

      If I am correct important issues were not challenged when they should have been when first implemented by the ostensibly english parliament .

      We are where we are ,because of inattention or collusion by unionist parties in scotland , they must have been involved in what is just a stitch up .

  3. Gregor

    It’s healthy to talk about democracy…

    Under the terms of democracy, it widely accepted that ‘the people’ and their elected parliament hold sovereignty. The people of any democratic nation should hold ultimate authority to determine the powers of their parliament.

    The societal structure and direction of a nation (e.g. fundamental underpinning values, culture, identity, governance, formal relationships & participations etc.) should not be dictated and ultimately determined by others from elsewhere (i.e. external actors who are non-participants in Scotland’s democratic process).

    Democracy is all about empowerment and representation of the people, as individuals and as a majority, yet Scotland’s democratic voice and ability is significantly diminished (if not completely neutered) under Imperial Rule of Westmonster. Westmonster’s unsustainable structure is stuck in the Dark Age and not fit for the civilised world (let alone a United Kingdom of equals).

    An independent Scotland would significantly enhance and strengthen Scotland’s democratic potential and ability, particularly as a national entity (and address the grotesque democratic deficit it experiences under the Great British Union of unequals). Scotland could even enshrine the fundamental pillars of democracy under a proper written constitution.

    Most importantly, what does a real ‘democracy’ mean to people, particularly from a national entity perspective? It would seem that a public conservation on such a fundamentally important intrinsic issue is long overdue and vital (obviously don’t count on Westmonster to hold such a vitally important debate – ‘pin drop’).

    It is my understanding that in the Modern Age (humanity, equality, intelligence and all that…), the democratic will of a nation should be universally recognised and embraced as the ultimate authority of itself, and anything less isn’t democracy, civilised or acceptable.

    Under Westmonster Rule democracy is the most precious thing that Scotland doesn’t really have.

    1. bringiton

      During our independence referendum,Westminster appeared, through their press pack,to convince many people around the world that they were dealing with an insurgency which threatened the font of all stability and democracy.
      Now that it is clear that they do not represent either of these aspects,perhaps we have a chance of breaking free and creating a political system of governance which does.

  4. Mike Fenwick

    Peter …. Who Decides??? Indeed! May I offer these extracts for thought and discussion.

    Attributes of Statehood as Defined by the Declarative Theory

    Article 3 paragraph 1 of the Montevideo Convention states that “the political existence of the state is independent of recognition by the other states.” This is generally understood to mean that the sovereignty of a state should be declarative, i.e. based on purely normative principles and independent of political recognition by other states. If this declarative theory of statehood is to be followed, then four basic criteria need to be present, as set out in the 1933 Convention. These are:

    a) A permanent population: b) A defined territory: c) A government: d) A capacity to enter into relations with other states:

    Recognition by other States

    This purely declarative theory has, however, been widely questioned. The fact that a country meets the requirements of the Montevideo Convention is meaningless if it is not internationally recognised. The “constitutive theory of sovereignty” requires recognition by other states as a prerequisite for statehood.

    …. there is no relevant international regulatory framework under which the issue of statehood can be dealt with in its entirety. It is generally recognised that neither the fulfilment of the requirements of the Montevideo Convention nor the many common theories of recognition by other states can definitively settle the issue of the statehood of a territorial unit. Neither the fulfilment of the normative requirements nor recognition as a state can in themselves create a new state. In reality the question of statehood seems to revolve more around how other states actually behave towards a particular territorial unit. This includes acceptance in international organisations (such as the United Nations), diplomatic recognition and being party to international agreements.

    These are extracts from a debate on the statehood of Palestine. The thought and discussion, perhaps needed is how the extracts apply to Scotland?

    1. Peter A Bell Post author

      It will probably not surprise you in the slightest, Mike, that I am firmly wedded to the declarative principle of statehood.

      A nation is not defined with reference to anything external to itself. To assert otherwise is to challenge the concept of popular sovereignty. It is to suggest that there is a higher political authority than the people. It is to say that, the people having exercised the democratic right of self-determination, their choice is subject to final approval from some other power.

      What power? Some other nation or nations? Which of those? How many? What criteria are used to decide which nations, individually or collectively or is some combination, have an authority superior to the sovereign people of a nation?

      What happens when some external nations recognise a declared nation but others refuse to do so? Does this not necessitate a still higher authority to act as final arbiter? Thus pushing the people even further down the ‘pecking order’.

      It seems to me that, if the concept of popular sovereignty is adopted and the right of self-determination is acknowledged, then the declarative principle necessarily follows as the definitive principle. Otherwise, you get into some kind of infinite regression. Everything is ultimate, until it isn’t. That’s no way to run a global family of nations!

      1. Mike Fenwick

        Peter … Sorry we didn’t get a chance to meet up on Saturday .. and no, not in the least surprised at your views. But maybe it’s time for Scotland to cause more than a little surprise by adopting them? Do we think we have something to lose or something, very precious, to gain?

  5. Robert Graham

    I believe all the current problems stem from the re-naming of the scottish executive, to the scottish parliament , therefore most people thought we had a parliament that rivalled the westminster parliament in the powers it actually had .

    Powers are devolved to scotland at the whim of a mostly english government , here lies the conundrum ,we cant have too competing administrations , one who is merely loaned power from the main recognised parliament ,

    We are essentially a region of england in that respect, allowed to administer laws and services and the power to do so is gifted by westminster.

    The only way out is total independence , the gullible misguided fools who voted NO in 2014 are maybe just coming to terms with the damage their vote has caused
    I doubt if most of them will admit they got it seriously wrong . Even Now.

  6. manandboy

    Countries with small populations ought not to allow anyone and everyone a vote on matters of sovereignty based on residence around the time of the vote.

    With high numbers of immigrants from England, overseas students in residence, holiday home owners and EU nationals vulnerable to threat, together with a history of suspicion surrounding the Postal Voting system, the inclusive policy of the Scottish Government proved to be a catastrophic error of political judgment.

    Or does that not count for anything at all as we reach for another attempt to gain Independence?

    1. Robert Graham

      I tend to agree with you on eligibility to vote, this however runs contrary to the inclusive society promoted by the SNP government,

      I think they were on a hiding to nothing on this one, heads they lose tails they still lose , it must have been a gamble including all who lived here, The other way only, Scots born might have opened them to a challenge by Scots who have emigrated , I know this could have possibly got round by proof of residency ,

      I believe that they will stick to the previous format, thus hoping EU citizens currently resident here will back Independence , it might be toss of a coin stage .

      What should be completely revised and secured is the open to fraud postal voting eligibility, I believe other parts of the world have moved to more stringent security on these votes, this could and should be a matter of urgency during this phoney war we are in just now , Make hay while the sun shines etc , we won’t and can’t do this in a hurry, it needs to be tried and tested, just in case it’s required quickly .

      1. manandboy

        Scots-born only, no; but surely sensible residential qualifications isn’t too much to ask.

        Have family living in Germany for 30 years where they are still only allowed to vote in local and European elections.

        How come 80 million Germans got it so wrong and the Scottish Government got it right. Shouldn’t we tell the Germans – and most of the other EU countries about the big mistake they’re making.

        1. MorvenM

          I would go for a five year residency qualification. That would disqualify the holiday home owners, students from outside Scotland and people moving here temporarily purely to vote in the referendum.

          As you say, in a country with a small population, which has a populous neighbour, it’s too easy to fiddle the figures.

          I have a postal vote myself, for health reasons, but would be strongly in favour of tightening up the qualifications for that too.

          The Scottish Government needs to give this some thought before the next referendum.

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