MILLFLATS MERCURY-formerly the Tarff Advertiser
An alternate view of Scotland and the world through prose and poetry.
Saturday, 1 September 2012
Westminster's Little Big Horn - a discussion on Newsnet Scotland
Moore Issues Threat
Great post. Between you and Lord Cooper you have given us all a great deal to think about.
Clearly this whole row is about power or should I say, loss of power by Westminster.
Every utterance by Moore or Davidson has a sub text which says:
London supports your efforts, recognises your powers, wants you to have your Referendum........BUT.....on our terms.
The reality is that the people of Scotland spoke clearly and loudly in May 2011 and Westminster will not be allowed to interfere, especially with a leader lie Alex Salmond. The only aspect of the Referendum where Salmond would consider a change is the single question issue, and he would only do that if it suited him......which it just might.
I mean, where would the Devo Max crew go if there is only one question.....back to the status quo?
I hardly think so.
Many thanks for this post.
Following your logic that what the Scottish people want is sovereign, does this mean that if we vote for devo-max, then the Scottish Parliament is obliged to deliver this? Now if delivering devo-max means the Treaty of Union has to be changed (not sure why as it didn't change for devolution), but lets accept for now that it does, but no agreement can be reached on a new Treaty with England and Wales ie. they won't accept devo-max, then the Treaty will break down and Scotland will become independent.
Is this logic correct? If so, then I am very happy to have devo-max on the ballot paper!
As I understand it full fiscal autonomy / Devo-max requires the repatriation of every aspect of Scottish governance except for Defence, Foreign Affairs and one or two other issues. This fundamentally alters the relationship between Scotland and England because instead of the political union set out in the 1707 Treaty what you in fact create is a confederation of British nation states.
This is the only way FFA can operate because instead of the centre being in control of taxation and fiscal policy (for example) the nation states sovereign parliaments control this aspect of their affairs and give the centre 'pocket money' to do the tasks they have been delegated by the confederated nation states to do. Westminster is no longer 'primes inter pares' but a secondary legislature in a confederal union. This is in clear breach of the 1707 Treaty's stated role for Westminster as the unified seat of all UK Governance.
This was why, in part, the 1998 Scotland Act fails to meet the full Council of Europe requirements for autonomous regions. If the full conditions had been applied and enacted the Union dies on the spot because the changes req
uired to conform with the European Council's guidance in full lie outside Westminster's competency as it has no powers to alter change or ammend the 1707 Treaty of Union.
This is, I believe why the SNP have been very careful to determine the structure of the proposed question for the referendum and why Westminster only wishes a status quo or 'Yes' options. For Westminster to propose any other form of words calls in to question just what role can Westminster play on the withdrawal of one party or the other to the original 1707 Treaty as it is outwith Westminster's powers as only the sovereign parliaments of England and Scotland can decide and act in this way.
Westminster exists because it is the considered will of the people of Scotland who agree to its existence. Take that agreement away, there is no UK Parliament at Westminster or UK Union and Westminster reverts to being the sovereign English Parliament by default.
It seems a bit mazy at first yet it the only logical outcome of Lord Cooper's uncontested 1953 judgement and the findings of the UK Supreme Court in AXA et al vs the Scottish Parliament in 2010 which by and large echo Lord Cooper's 1953 legal statement.
What you are saying I am finding quite mind-blowing, it has all sorts of implications if I understand you correctly eg. AS doesn't need a section 30, and he can put devo-max on the referendum just because people in the consultation ask for it, he can also ask whatever he likes and the answer becomes legally binding because the people of Scotland are sovereign! Is this right? I understand too that if we want dev-max it is likely to lead to the breakdown of the union or a complete redrafting of it at the very least?
What is the 2010 ruling you are talking about?
The UK Supreme Court judgement in AXA et al vs The Scottish Parliament (2010) was brought under section 30 of the 1998 Scotland Act to over turn the Scottish take of asbestosis plaques to retain them as a pre-cancerous disability at a time that Westminster had removed this liability from insurers. AXA et al contested the bill on the basis that Westminster was 'primus inter pares' and therefore the Scottish Bill exceeded the competency of the Scottish Parliament under section 5 & 30 of the 1998 Scotland Act and on this basis the bill should be set aside by the UK Supreme Court.
All the legal beagles, including Llandspeat Worrier, were certain the Scottish Bill on Absbestos Plaques would be over turned in accordance with sections 5 & 30 of the 1998 Scotland Act. To all the legal 'experts' surprise the Bill stood and one of the legal reasons stated by the UK Supreme Court was they could not over turn any Act, Statute or Bill of the Scottish Parliament which reflected the considered will of the Scottish people. What the UK Supreme Court was stating, in effect, there was no contrary argument under law to Lord Cooper's judgement on the matter of 'the considered will of the Scottish people' and its limiting impact on sovereignty in McCormack vs the Lord Advocate (1953).
Once you get your head around this - and it has taken me nearly two years - you start understanding the outright panic amongst the Unionists vested interests at Westminster. Hate, despise or loath Micheal Forsyth he was correct, from an informed legal point, that devolution marked the end of the Union and had to be avoided at all costs. It also makes sense of Westminster's continuous attempts to 'put down' Holyrood as a pretendy, parish pump parliament because once the Scots realised what it is they actually have the 'Forsyth Law' comes into play. Further this view makes sense of why everytime a London lead party's man or woman in Scotland looked like they were, in the slightest, going native- they got the knife in the back (McLeish, 'Bring it on' Alexander). The problem was in Jack McConnell the Unionists had a 'toom tabard' politician so inept that Scots saw Murphy and Brown's hands up his backside controlling him and at that point the whole process to prevent the Scots understanding what they actually have at Holyrood began to unravel.
This all brings us to where we now are, a SNP Government which on all measures of 'consider will' are flexing the Scots political and constitutional rights. All Westminster is left with is crowing from its dung hill.
The unionists regard Holyrood as a sub office of Westminster which is at their beck and call (as was the case with previous puppet regimes). Had the parliament been in say Newcastle or any other part of England subject to English law then they would be within their rights to think so. The problem they may have is trying to impose their will through the Scottish courts if the Scottish Parliament passes a bill which they don't like.
However,only a referendum which empowers the Scottish Parliament to pass a bill rescinding the Treaty of Union will be accepted outside Scotland as representing the settled will of the Scottish people.
We need this to legitimise what happens next.
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1 September 2012 at 12:54
Love it -- nice explanation
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