It is important to realise that the UKSC is not being asked to rule on whether we can have a constitutional referendum. The court is being asked only to rule on whether we can have a “consultative and non-self-executing” referendum. A referendum that cannot lead to independence because it has no direct legal consequences. It does not connect to any action by which our independence might be restored.
If the UKSC rules that we can have this pretendy referendum, Scotland’s cause is no further forward. If it rules that we can’t have this pretendy referendum this necessarily implies that we will not be permitted a real referendum with actual legal consequences. So we are right back where we are now. It really is a pointless exercise.
The only way – and I do mean the ONLY way – a proper constitutional referendum can happen is if it is authorised by and conducted under the auspices of the Scottish Parliament. This means the Scottish Parliament must acquire the necessary power to authorise and legitimise a constitutional referendum. The ONLY way for the Scottish Parliament to acquire that power is by taking it. By asserting it.
We will only get to fully and properly exercise our sovereignty when we have dissolved the Union and restored our independence. We can only restore our independence by exercising the right of self-determination that is bound up with the sovereignty of Scotland’s people. We can only exercise our right of self-determination conclusively in a legitimate constitutional referendum. Only the Parliament we elect possesses the democratic legitimacy necessary to authorise the exercise of our right of self-determination. The Scottish Parliament can only authorise and legitimise a constitutional referendum by doing something that the British state will always deem unlawful. Ergo, we will only restore Scotland’s independence by means of #ScottishUDI.
The choice is not between #ScottishUDI and something else. There is nothing else. The choice is between girding our collective loins for #ScottishUDI or forsaking Scotland’s cause. I am not about to do the latter. I am bound to do the former. Others must decide for themselves.
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Peter A Bell 
Hi Peter,
Thanks
Can you remind me a referendum that was not consultative, not only in uk History but worldwide?
I thought ALL referenda were by Nature consultative ? I might be wrong though…
Now, i am no fan of the actual SNP and we have a similar view on amny many subjects but … What if reminding people that this referendum will be consultative that it has no legal value could help the cause? What if some voters, not feeling the pressure of the consequences of their vote would let the heart speaks … What if, i doubt it in the current framework, the yes side wins it and SNP afterward declares UDI ?
Take care
Paul
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Just because all you’ve known is one thing that doesn’t mean it’s the only thing. In fact, there are a number of characteristics which can differentiate referendums. They can, for example, be mandatory or discretionary. That is to say, they may be obligatory in certain circumstances – such as amending the constitution, or they can be optional – as where the government judges an issue to be of such importance as to need special consent or where there is significant public demand – though not necessarily a majority.
Optional referendums may be initiated by the public – usually by way of a petition gathering a required number of signatures. Or they may, as stated, be initiated at the discretion of the government.
Perhaps most relevantly for present purposes, referendums may be either determinative or consultative. A determinative, or binding, referendum has necessary and direct legal consequences. A consultative referendum does not. It has only such legislative effect as the government chooses to afford it.
When you take the possible permutations of these characteristics – and this is not a comprehensive list (eg proactive/preemptive) – it can readily be seen that a large number of different forms of referendum is possible.
To date, there have been three UK-wide referendums. Of these, one was determinative (binding). This was the Alternative Voting referendum conducted by the Tory/LibDem coalition in 2011(?) So, a third of UK-wide referendums has been binding. Which rather destroys the notion that ALL referendums in the UK are consultative.
As for the rest of the world, as pointed out there are many different types of referendum. Different forms are used for different purposes in different countries. They are most certainly NOT all consultative. Switzerland in particular comes to mind. They have referendums pretty much every year. Sometimes more than one. Many (all?) of these are binding. Switzerland does a lot of direct democracy. In the US, Ireland and Australia, determinative referendums are required to amend the constitution.
The British state does not set the standard.
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Hi Peter,
May be i should have been more precise.
Mandatory or consultative as regard of the issue Constitutionnal or not and brought to votation by the public is one thing. Switzerland use both regularly. By the way if we consider Switzerland as a democractic champion because of their use of referenda, i am no fan of Democracy. Living in a white, aseptisized, enclosed, country where delation can cause you trouble if your fart doesn’t smell of edelweiss is not really my thing and that what naturally happens when you let communities to much power they tend to keep among themselves. Whether it is right or wrong is not important just it is not my thing.
More precise because the point was : mandatory or not depending on the issue, are referenda’s results legally valid and compelled to be accepted by gvts ?Sarkozy sat on the result of the constitutionnal referendum about EU Constitution held in 2005. 55nos/ 45yes (remind me of another result …). A year later he passed the Law through Paliamentary channel ignoring the will of the people… It seems that mandatory referendum or not a result could be ignored whithout consequences for the governing power?
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The effect of referendums (I only say referenda when wearing my toga.) in different countries will depend on their constitutional arrangements. I think you mean determinative or binding rather than “mandatory”. They are quite different. A determinative referendum has full legal effect regardless of which country because a determinative referendum has legal effect by definition.
A mandatory referendum is one which the government is constitutionally bound to hold in certain circumstances. A mandatory referendum may or may not be binding. Although they will be in most instances. What’s the point in having a constitutionally compelled referendum is acting on the outcome is optional?
It is not true to say that there are no determinative/binding referendums in the UK. It is true to say that there are no mandatory referendums in the UK. There are no circumstances in which the UK government is obliged to hold a referendum. The British political system abhors mandatory and determinative referendums both for the same reason – they impinge on the sovereignty of parliament.
In theory, and in practice for most purposes, no British parliament can be bound by its predecessors. The power of the British parliament to make laws is absolute and exclusive. This absolute and exclusive power is increasingly reflected in the executive which wields the power of the sovereign parliament. Monarchs of old would be jealous of the largely unfettered powers of a modern British Prime Minister.
Mandatory referendums tell the government what it must do. Determinative referendums tell parliament what it must do. Both are very useful to democracy. Which for the British ruling elite is just another reason to hate them.
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Thank you to take the time to reply Peter.
“Referenda” because my latin teacher in my previous life over in France couldn’t stand the “ums”…she was such a sweet old lady who always had her pinte at lunch time ..sometimes more that one 😉 ..Sister Judith was unique…
I think Michael Keatings on the radio tbis morning resumed very well my thought on the referendum matter.
Take care Peter and thanks again
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Good points Peter, but all roads lead to Rome as they say, by that I mean its all just talk with no action as long as Sturgeon is FM, and the SNP MSPs are so obedient and self serving that it looks like Sturgeon runs such a tight ship that Ron L Hubbard would be proud of her if he were alive today.
We’re going nowhere anytime soon as long as Sturgeon is FM, even the nasty Tories know when to get rid of a terrible leader, yet the SNP MPs and MSPs (I call them The Three Wise Monkeys) do nothing, and are afraid or so self-serving that they refuse to speak out on what’s going on within the party, such is Sturgeon grip on the SNP cult, that even the SNP MSPs who stood down at the last Holyrood elections have failed to whistleblow on what’s going on.
Its all very well pointing to the door of this union and the path we must take to reach it, however there’s a ruddy great stumbling block stopping us getting there and it resides in Bute House, now I’m confident once Sturgeon is gone that the sheep( SNP MSPs who have no honour or self respect for Scotland, how could they they’re in the cockpit of the plane Scotland that’s in a steep dive they see what’s happening) will conform if a new strong indy minded FM is appointed. That’s the real crux of the matter.
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There will not be a change of FM. If we’re depending on that happening we are fucked. Sturgeon is a politician. She’s ambitious. She will bend if the right kind of pressure is applied. At the moment, our best bet would be that pressure coming from among the SNP elected members. It sure as hell isn’t going to come from the Yes movement. That has ceased to exist as a (potential) political force.
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Only time will tell Peter, I hope you are right and I am wrong, however if Sturgeon’s track record is anything to go by she’s not for bending.
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Reblogged this on Ramblings of a now 60+ Female.
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Isn’t it true that both the Brexit vote and Indyref1 were consultative? If so,won’t Indyref 2023 be the equal of these previous two consultations to which the British state gives so much credence? When you talk about a ‘pretendy’ referendum, are you not in danger of sounding like the Tories with their ‘wildfires’ and ‘illegals’?
You say that the proposed Indyref 2023 ‘does not connect to any action by which our independence might be restored.’ Surely, if the first paragraph of my response is correct, Indyref 2023 as it is proposed, gives the same credence to the result as that which produced Brexit and also allows the British state to proclaim that we made our ‘once in a generation/lifetime’ decision in 2014?
A consultative Indyref 2023, if it produces a majority in favour of independence, would finally give us our plebiscite – which is an extremely significant in this long and frustrating enterprise. This would also put paid to a favourite unionist lie that there is ‘no majority in Scotland’ in favour of independence.
Furthermore, if the Scottish electorate turns out in large numbers for this democratic event, it would also put paid to that other favourite unionist lie that there is no stomach in Scotland for ‘another divisive referendum.’
These two things alone would put the unionist gas at a peep and so connect to future action that will be required in order to restore our independence.
These results would also be a shot-in-the-arm for independence supporters and would put fire in our bellies to face the final confrontation with the forces of Westminster – because it will have to come to a confrontation and we need to be prepared for that.
So,I completely agree with you that the fight is probably going to get very dirty – Westminster’s choice – and that the SG will have to go head to head with Westminster and act in ways which the enemy see as actions they have not permitted and are therefore not legal! (How Westminster can assert this when Scotland has a separate legal system is another argument!)
If I were the SG, I would feel much better embarking on confrontational action knowing that I had the backing of the Scottish people and that I had demonstrated to the world that I had also exhausted every avenue open to me to fulfil my pledge to the Scottish people in a way that allowed my equal partners in this union of nations to fully engage and negotiate. In this latter enterprise, there is ample evidence that the SG were rebuffed and disregarded by an intransigent and unreasonable Westminster government at every turn.
I agree that what the SG is proposing is not ideal but I don’t agree that it is not important or significant. I agree a victory here does not technically end the union but surely it is the beginning of the end?
The Scottish electorate voting in favour of independence in any organised, democratic event is a game changer. Westminster knows this. It is what they are most afraid of, as their attempt to block the UKSC even considering The Lord Advocate’s request attests to.
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The essence of the petition to the UK Supreme Court is whether the devolved administration in Holyrood has the authority to ask the independence question.
I think we’ll find out, that in the eyes of the British state, that the Scottish Parliament is as much a parliament as Strathclyde Regional Authority is.
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That would be putting the question in a pretendy referendum. The “essence” of the Scottish government’s petition to the UKSC is whether the Scottish Parliament has the authority to ask the independence question IN A REFERENDUM THAT HAS NO EFFECT!
Set aside for the moment the fact that it is the wrong question, the Scottish Government can do precisely nothing with the result even if the court finds in their favour. WTF is the point of that?
Again I have to say this because it doesn’t seem I’m conveying the message clearly enough. Regardless of the finding of the UKSC there MUST come a point where the right question in the proper manner. The finding of the UKSC on this petition will have no bearing on that. Even if the pretendy referendum is allowed, the real one won’t be. The real referendum will have to be combined with a form of UDI so the Scottish Parliament has the necessary authority. That power can only be taken.
The petition to the UKSC is another sideshow. A time wasting diversion putting off the inevitable moment of confrontation.
I, for one, am sick of the farting around for the entertainment of her fan club.
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“If I were the SG, I would feel much better embarking on confrontational action”
You maybe mean the SNP? The SG is a spending department of the UK Gov and run by the same civil service. There is no danger of confrontation, as we see with the last 8 years of co-operation between SG and UKG even with ongoing violations to agreements and treaties – both are run by the same folks with the same (British) values.
Demographic change means Scotland does not have much, if any time to delay. It would be advisable now to use the existing elected nationalist majorities to much better effect, but most of the SNP MPs/MSPs don’t appear to know what a nationalist representative is supposed to do.
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By SG I mean the elected Scottish Government sitting at Holyrood and our MPs sitting at Westminster.
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We should have TOLD them what to do at the last election. But everybody was too busy pursuing their own projects and squabbling with other factions.
I will still be angry about that on the day I die.
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Peter, if they ‘nationalists’ dinnae ken whit tae dae, thay’re nae nationalists tae stairt wi.
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I’m a bit at a loss at the small protest in House of Commons, by the 2 ALBA MPs.
I mean, they were in a big huff that the UK Prime Minister wouldn’t allow a Scottish Referendum.
But, being ALBA, members, why were they wanting his permission in the first place?
However, the little furore with the Speaker, and the Speaker’s own manner, does show the total contempt Westminster has for Scotland.
It is utterly futile, and been shown as such, to get anywhere with London.
UK Govt. will never agree to anything that would end the Union.
Cameron was the exception, but only because Salmond stood his ground, and was going ahead regardless of what David Cameron wanted.
But Cameron thought it would be an easy thing for him to win.
It didn’t turn out quite the way he wanted.
The down side for YES, has been the notion held by SNP since, that they will always need London’s say so, and co-operation for anything else.
We would like to think that now at last, they see they’ve been wasting their time, and Scotland’s time. And all the while allowed England to take Scotland out of Europe, and for what in return?
Nothing! Nothing but more and more contempt. Its time we put an end to this.
One would have thought that ALBA politicians be more upfront. Maybe they might start to be now, rather than still flog the Westminster “;Legal” nonsense. Otherwise, they too are being as timid as SNP which isn’t any better as far as Scotland getting Independence goes.
We need to build up this UDI campaign and make the politicians follow.
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