Scottish Parliament does not have power to legislate an independence referendum | Hacker News Reader

Scottish Parliament does not have power to legislate an independence referendum

supremecourt.uk

27 pointsKaibeezy83 comments

Amusingly, Theresa May and Boris Johnson, while angrily waving their fist at the horrible EU trying to force them to remain in the union and being awkward about it, insisted that Scotland has no say over whether they want to remain in the United Kingdom, that being together is better and so on...

I think probably both Scotland and the rest of the UK are better off together, but this country is really coming apart at the poorly glued seams of English hypocrisy.

Please don't lump this on the English, we don't care.

Per your own comment this is decided by PMs. Hardly any of them are english (Johnson was American, Cameron and Blair were both Scots, May was English and the others in the last 40 years lasted too little time to matter).

It's a common misconception that Westminster Politicians care about England but not (say) Scotland. They don't care about either.

If we read the court's reasoning, it was rejected because it would show "democratic expression of the Scottish electorate" and while at it, would "either strengthen or weaken the democratic legitimacy of the union". Damn democracy, how annoying it can become when it does not agree with the status quo anymore - we rather gag its voice to not hear any dissensions.

At least from Johnson's pov, his argument for refusing another referendum was exactly in line with his view on brexit. Specifically, if you have a referendum then you should bloody well respect the result. The last thing he wanted was to offer the possibility that a referendum is just for Xmas and you can change your mind if you get cold feet.

And tbh, there were only 2 realistic outcomes from the Supreme Court today: either that there's no legislation to review so they can't comment (which they dismissed) or that we have precedent for the exact mechanism for having a Scottish independence referendum. Because we've had one.

His arguments were not particularly coherent. My point is he insisted that nations have an absolute sovereignty and cannot be bound by other nations' or organisations' will. But then there he goes telling Scotland what rules they are bound by, which they scarcely elected themselves. If Scotland wanted to have a referendum every other month, what's that to him, given his attitude to UK-EU relations?

I think it's a bit nonsensical to have referenda on such important matters, with such poor standards on campaigning, and thresholds being simple majority, in the first place. Having one or two in a short time span is equally silly.

If a future Scotland gains independence and then seeks entry to the EU I presume (hah - big talk!) that the EU would require Scotland to adopt the Euro, free movement, full trade access and so on. Does that mean that England would want a hard border to prevent EU nationals from wandering in and taking their jobs? Does it mean that the EU would require a hard border to prevent the leaking of non-EU certified goods from England to Scotland?

I lived in Scotland before Brexit and the last IndyRef. Now I live in Ireland. Watching what Brexit has brought to Ireland (thanks Nigel!) makes me wonder what the thinking is on how an independent Scotland inside the EU would work? I suppose there is the precedent of the several other non-EU countries with EU borders. And indeed the history of civil war in Northern Ireland is much more recent than war between Scotland and England, so perhaps it's NBD.

It would mean a protracted set of negotiations with Westminster throwing as many wrenches into the works as possible.

I would assume that the same kinds of borders would exist between Scotland and England as between Northern Ireland and The Republic.

And that trade between Scotland and Ireland would suddenly get a lot easier (as they would with the rest of Europe), at the same time as trade got harder with England/Wales.

I just want to point out that the border between Northern Ireland and The Republic is in a weird state of legal flux, being sometimes in the sea, sometimes hard, soft, semi-soft, and being a source of violent tension for generations. If you actually go there today you'll often notice nothing at all, but there have been all sorts of plans about what will finally happen once we "get Brexit done".

The legal opinion and verdict of the Supreme Court of the United Kingdom will matter very little the moment the Scottish Parliament truly decides to legislate independence. It'll end in use of force, as usual in these cases.

I think we are really far from Scotland unilaterally declaring independence and England rolling in with tanks.

If only because Scotland has the nukes.

The British military (certainly the Army) are really, really loyal to the crown. That the British nuclear subs are based in Faslane mean anything in this (extremely extremely unlikely, fictional) scenario - the military would without question all side with the union whether they're stationed north or south of the border.

Oh boy, I hope you didn't jinx that one.

A few years ago I couldn't imagine Brexit becoming a reality or someone invading... well, let's leave it at that.

Brexit became a possibility the second UKIP became a threat to the electoral chances of the Conservative party. It's very likely that Labour would have won in 2015 if Cameron didn't promise that referendum.

Scottish Labour already has a committed anti-independence position, so they likely will let the SNP win over doing a similar promise. The only other possibility is a coalition government with Labour, but I don't see any government making the same mistake after 2016.

Thanks for elaborating!

For some reason I find British politics very interesting although never having set foot onto British soil.

Ha yeah. Honestly though if Nicola Sturgeon had the sort of control of Scottish politics (and "popularity") that Putin does in Russia or Orban in Hungary, then some kind of escalation could have been on the table. But I imagine she knows that making any kind of move like that would be political suicide and would kill off a lot of the hard-won support for independence that they've grown over the years.

Yeah, do you really think British soldiers would murder unarmed British civilians on British soil!?

That kind of thing would definitely raise Ire in the land.

Time to start finally building that [Irish Sea Bridge](https://en.wikipedia.org/wiki/Irish_Sea_Bridge)?

I can't tell if you're being sarcastic or if you've actually never heard of Bloody Sunday. Apologies if the former.

If the soldiers really did that then don't you think Lance Corporal David James Cleary of the Parachute Regiment would have been arrested and charged with murder instead of covering it up and granting him anonymity as Soldier F?

I don't get why your comments are downvoted. I think there must be a few people here who aren't aware of the actions of Lance Corporal David James Cleary of the Parachute Regiment aka Soldier F during Bloody Sunday - those being that he is accused of murders which were covered up, and was weirdly granted a level of anonymity during his trial for said murders.

The unilateral declaration of Scottish independence is the unlikely part. I am quite sure the Army would be willing to defend the union by committing the same sorts of acts they did in Ireland with the same level of enthusiasm.

I doubt there’d be too many people in Westminster willing to repeat the Troubles with a similar level of entusiasm.

I think it all depends. Perhaps few if any would want to kick off a violent conflict on purpose, but are plenty of clowns who would stumble into that situation through a series of poor decisions. If someone like the former PM Truss were in power, all bets are off.

That is what happens in 95% or more of other countries. It doesn't even require an actual attempt at independence. Troops shoot their own countrymen really often. That's why they're never used for crowd control. Just look at Kent State or Tiananmen.

Check the other comment, fnord123 is referencing British Army atrocities in Northern Ireland

That too. Basically any solider will open fire on their countrymen for almost any (or no) reason. It's not a pleasant reality, but it is reality...

This is not true. The succession of Norway from the Swedish-Norway union was peaceful because Swedish soldiers didn't want to shoot on what they considered to be their own kind. FWIW I am a (former) soldier and I don't think many would shoot their countrymen for "almost any" reason. I don't think it's the reality at all.

That's fine, but now you have to explain the 1000s of counter examples, across almost all countries, where they did. Why did the US National Guard open fire at Kent state? Why did the PLA roll tanks into Bejing? The same for Peterloo or Bloody Sunday and so on.

Of course, no one ever tells you to shoot "that nice fellow countryman over there". Soldiers are told dangerous (though unarmed) anarchists/bourgeoisie/terrorists need to be stopped. And the vast majority of cases end up with a lot of dead civilians.

I am not judging, I would likely be the same if I were a soldier in that situation. The fact it happens so often shows it isn't down to individual soldiers lacking some moral or ethical quality. It's human nature. It's why armies work. I just think everyone have a (very dangerous, baseless) belief that "that could never happen here "...

This is not “any soldier “, it’s a small percentage

No, it's a small percentage who refuse. Just look at any nation, dozens of examples of massacres vs a very small number of peaceful outcomes.

You've only been able to list 1 example in Norway/Sweden. I gave 3 off of the top of my head across a range of times, countries, cultures etc.

You can "believe" what you want. But the facts are against you here I'm afraid...

You're probably right but one thing that worries me is I think both governments would sort of like that result...

So Scotland can become bigger Northern Ireland?

Haven't they already had one recently and the majority were against it...

Yes, in 2014, but that was before Brexit.

And the argument for remaining part of the UK was precisely because Scotland would have to start the EU admission process from scratch.

That was before Brexit.

Eight years ago, before the English decided to catapult them out of the EU.

(A major argument from the English side against Indyref was that an independent Scotland couldn't be part of the EU, but a united Kingdom could - that aged poorly.)

It was a strange argument in the first place. If Luxembourg and Malta can be in the EU, why not Scotland? Hard to imagine them being refused.

It's less an issue of size and more of economics etc.

Also the precedent it sets for Catalonia's independence movement and the issues that causes for Spain is another pain point that has been brought up (edit: Though as I understand it, Spain's position is that as long as Scotland does it "legally", and not by secession, they're fine?).

The only plausible problem was a Spanish veto, to avoid encouraging secession by the Basque country and Catalonia. If done with the consent of the Rest of the UK, though, I don't think that would have eventuated.

It certainly can but an independent Scotland would not automatically be a member of the EU.

They would have had to apply for membership and even though it would have certainly been speedrun (unless the UK would have been petty and tried to block their admittance) there would still have been some turmoil until they were admitted.

And now they got the turmoil without any option of being part of the EU.

Edit: proper tenses so it's clear this is with regards to how the situation was for the referendum of 2014.

(edit: questioned the meaning of the parent comment, but they have clarified)

That was written for the referendum of 2014. Today of course, the situation is completely different.

Ah, clear :) I'll edit my comment too

Spain would likely be against Scotland joining, since there’s an analogous independence movement in Catalonia that Madrid wants to suppress.

Not that they’d necessarily veto, but the politics aren’t clear-cut.

Only if they secede without approval of the UK. The referendum in 2014 was accepted by the government.

That's something Madrid won't do. At least not within the foreseeable future.

They had one 8 years ago and the situation changed drastically since then.

Northern Ireland for example gets to hold independence referendums every 7 years, so there hardly exists any real argument against holding another one…

Besides the fact that Westminster would likely lose, of course.

I wasn’t aware (or I forgot) NI has this option. Do you know why they have it? Can you point to a good explanation somewhere? Thx.

They have it because IRA was willing to kill a lot of people to get it.

This is a part of the so-called Good Friday Agreement which was signed in 1998 after Northern Irish nationalists fought a 30 year war against the British state with an ultimate goal of becoming a part of Ireland instead.

That's what I get for asking an imprecise question. Sometimes, when two countries dislike each other very much...

A more precise line of questioning might have been: What considerations brought about the inclusion of this particular clause or right? Under what circumstances has it been raised for consideration since the Agreement? Can you point to a resource focusing on the issues and history surrounding this particular clause?

Anyway, the comments above made some suggestions.

> Northern Ireland for example gets to hold independence referendums every 7 years

I can't find a source for this, do you have one?

Northern Ireland Act 1998

Yeah. I did CTRL-F on that and it found no relevant references to the word “referendum” or “7 years”.

If you could point me to the section I’d appreciate it. Not saying you’re wrong; just that I can’t seem to find it easily and it’s not referenced outside a lot either.

I’m on my phone and can’t dig through the laws properly, but here’s an citizens advice site confirming the same https://www.citizensinformation.ie/en/government_in_ireland/...

And here again https://www.instituteforgovernment.org.uk/explainers/irish-r...

These are just the first hits from google, but the 7-year minimum is definitely a thing.

Hey, thanks for that.

So it’s not every 7 years, that’s the minimum time between referendums, which I (inaccurately) read in your original comment.

> A referendum on a united Ireland is to be called by the Secretary of State for Northern Ireland when it appears likely that a majority of the people would vote in favour of a united Ireland. If the referendum is defeated, at least 7 years must pass before a new referendum can be held.

I think, though, if this was applied to Scotland then they would have reasonable cause since there definitely an independence movement.

Yeah, the point isn’t that they must have referendums every 7 years. It’s just that they can, provided they feel like it.

It's not "they can, provided they feel like it". It's they can, if Westminster agrees to it. That detail is quite pertinent to this [similar] ruling

Ah, you’re right. My mistake was thinking that the Secretary of State for Northern Ireland was selected locally in NI, but he is in fact a crown minister in Westminster.

2014. The result was much closer than polls predicted. The argument is the circumstances have fundamentally changed: Brexit (2016) is proven to be an economic and regulatory disaster, and Scotland is out of the EU against its will (62% voted remain).

Most cities in Britain voted remain; since the population of London is higher than Scotland, should London have an independence referendum, especially since England doesn't have its' own parliament?

Why not if there is desire.

Some of the discussion on the below post the other day (re the .gb TLD) was around this question. The UK political landscape is a very odd duck.

https://news.ycombinator.com/item?id=33689935

If there is a strong pro-London independence movement, and if London routinely elects a party whose defining policy is London's independence in the majority of seats in local and national elections then yes it absolutely should have a referendum.

Let's not play daft, we all know why this issue has come up again

I can explain a little more than the other replies.

The situation has changed a lot and the reason why is brexit.

In 2014 the Scottish referendum a central part of the "No to independence" marketing was the idea that Scotland would be out of the EU and would be unlikely (or uncertain) if they would be able to return to the EU.

The victory margin for remaining in the UK was quite narrow and interviews from that time indicate that it was a large problem for many.

In 2016 in the Brexit referendum Scotland's regions voted unanimously to remain in the EU, but of course they were outnumbered by the English and Welsh.

So, since a central promise that inspired many to check the "No" to independence box to Scottish independence had changed: the conversation has come about again.

EDIT: I'm currently going through old youtube videos trying to find interesting "on the street" conversations and it's absolutely shocking how close the argument for Independence and Brexit are. I am not sure it's consistent to be pro-brexit and anti-scotland independence.

The reason why there are so many terse replies is that this happens every single time - the anti-indy crowd like to troll that they haven't the faintest idea what the problem is, and engaging with them as if they're acting in good faith is tiring and usually not worth it.

I appreciate that you took the time to explain though, there is a remote chance OP (or simply someone passing by) sincerely doesn't know what's going on.

> unanimously

mm. No.

Every Scottish region voted to remain: https://www.electoralcommission.org.uk/who-we-are-and-what-w...

You can literally see the Scottish border: https://www.nytimes.com/interactive/2016/06/24/world/europe/...

> EDIT: I'm currently going through old youtube videos trying to find interesting "on the street" conversations and it's absolutely shocking how close the argument for Independence and Brexit are. I am not sure it's consistent to be pro-brexit and anti-scotland independence.

Of course, the reverse also applies. It's odd to come to the conclusion "well I wanted to stay in the EU because I actually believed the experts about the value of trade more than I believed the politicians glibly dismissing all the complicated bits with the words "Project Fear", so now that Brexit happened and was a bit of a disaster I've decided that what we really need is to lose much deeper and more significant trade relationships and place our faith in politicians glibly dismissing all the complicated bits with the words 'Project Fear'".

I agree with you actually, but the arguments for Brexit hit a lot harder when levied towards the UK government.

It’s a matter of trust, the EU has a much more proportional representation in its election system and has done much for people who aren’t just the elite class, where the UK government has done almost everything in its power to impoverish the nation in the goal of enriching a few.

This is the impression anyway. So I can at least see that as a difference.

As others have said, circumstances have changed (Brexit).

The handling of Covid was a reminder too. Consistently rules would (or would not) be made in the south, yet here in Scotland we'd have a firmer stance and/or clearer guidelines to follow. For example, lifting mask rules and so on. I know opinions differ on this subject, for many people that I know the difference in the Scottish gov's handling was appreciated.

It's also interesting looking at result maps for the Brexit vote and the last General Election. These maps show the Scotland / England border, yet that's just a result of showing the differences in how these nations vote.

UK held an EU membership referendum in 1975, with 67% in support for being in. In fact the UK had been in for 2.5 years at that point so really that was a "remain or Brexit" referendum. And yes 40 years ago it had another one.

People change their minds and situations evolve it seems.

Yes. 55:45.

And normally that would be a reasonable answer - if you had a situation where you could ask the same question every year for an irrecoverable change that would be chaos. The question is how long the "term" should be - 5 years is the term for a national government so that would be too short, but 15 years, 30 years?

However I certainly have sympathy with the idea of a new referendum

1) Leaving the EU was a material change, one which factored significantly into the 2014 debate

2) The SNP, who's entire reason to exist is for Scottish Independence, has won significant vote share (45% off a 68% turnout in 2019, 48% off 63% in 2022)

3) Devo Max hasn't worked out the way it was promised in 2014

Certainly if the SNP were to get a majority of votes in 2024 then there could be a mandate for another referendum based on the new reality. I suspect the SNP would not want to wait that long though because 2024 would also likely herald the departure of the tory government and potentially a swing back towards no (remain part of UK).

The larger problem is that when a country is roughly evenly divided (50-50, 48-52, 45-55), there are no good answers. Unfortunately the UK as a whole has set a public precedent that a single poll of 52% off 72% is all you need to cause massive constitutional change to the point of removing peoples citizenship.

When you have a situation where you have a sustained 2:1 or 3:1 majority in favour of a referendum for years at a time, like in Catalonia, then there's certainly no excuse not to have one, and if the result is a supermajority like Catalonia probably would be then it should be progressed. With Scotland though, opinion polls on independence are where they were in 2014. There was a "no" surge in 2017, a "yes" surge in 2020, but neither were sustained.

It's quite plausible that Yes/Independence would win. It's also plausible that No/Remain would win. If No won 55:45 again, it wouldn't make the Yes side satisfied, and wouldn't be the end of discussion. If Yes won 55:45, then the No side wouldn't be satisfied, although the change would be done.

It's quite plausible the margin would be even closer that those.

It's also worth noting that the SNP have not managed to get a majority of votes in any election (in 2015 they got 49.97%, but since then their %age has dropped off)

Yes but we mustn't accept that. Watch the zealots invade this thread with their delusional reasoning for why we must re-do it. It's hilarious

I get that this is news, but this is a VERY predictable result. The legislation that set up the Scottish parliament specifically addresses this question...

I think that the case made was arguable, but this was always the likely outcome (assuming that the Supreme Court accepted the case in the first place, which they did). It's extremely clear that the Scottish Parliament can't legislate for independence. It's also clear that they can, in general, legislate to hold referenda. The question is whether a non-binding referendum (that is, one which is advisory and non-self-executing, though obviously with political importance) on independence is in breach of the "don't legislate on independence" reservation. You could make a case that the referendum couldn't change the actual constitutional arrangements (and the Lord Advocate did) but the argument that it's part of a process of change on forbidden matters seems a stronger one to me - as the court found.

Worth noting that the Brexit referendum was also non-binding:

https://en.wikipedia.org/wiki/2016_United_Kingdom_European_U...

Which is ironic, because if it had been legally binding it would have been declared illegal due to a multitude of factors including campaign spending and foreign interference.

Campaign spending: https://www.theguardian.com/politics/2018/jul/17/vote-leave-...

Russian interference: https://en.wikipedia.org/wiki/Russian_interference_in_the_20...

Why do I think about Brave Heart while reading this?

Good

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