Sunday 15 January 2012

Who are Himsworth and O'Neill?

There had seemed to be a consensus at the beginning of last week that whether the Scottish Parliament could competently call an Independence Referendum involved a divide between constitutionalists (i.e. lawyers) and the insurrectionists (i.e. the SNP).

Nothing wrong with being an insurrectionist. Most of my heroes: Danton, Garibaldi, Lenin, Mandela belonged to their ranks. But it has to be conceded that they were in insurrection against regimes that were not, exactly, representative of popular opinion in the first place.

However, let’s be honest, Scotland is not in an insurrectionist mood.

If you travel in central Italy, you encounter from town to town, plaques which announce the result, locally, of the various referenda that took place around 1860 as to whether the local citizens wished to be part of a united Italy.

Such votes must have involved the expenditure of both time and money by those involved in their organisation. And the local bureaucrats, who organised them, with the occasional exception, must have done so in the knowledge that they were acting contrary to the wishes of those who paid their wages. They didn’t care however for they were seized with the cause of Italy. As were the citizens who then chose, voluntarily, to participate in these votes.

Nobody is seized with the cause of Scotland to that extent. If told by a Court, never mind threatened with military force, that they were not to proceed, not just some, but all, of Scotland’s Returning Officers would obey that injunction. And, that aside, no body would turn up to such a poll.

So Eck and his troops, no matter in what they might be inclined think after four pints of lager, a late night showing of Braveheart and a collective, pre retiral, singalong of Scots Wha Hae, realise that they have to accept the rules of normal, 21st Century, democratic, discourse.

The vote can only take place if it’s legal and it is only legal if the Courts say it is. Not, for the avoidance of any doubt, the Supreme Court. Simply the Scottish Courts, a point on which our media are so hypnotised by Eck, they have failed to notice.

Now, at this point various Nationalist partisans will emerge out of the cybersphere to assert the sovereignty of the Scottish People. They are right, of course, both in theory and in ultimate practice. If the SNP somehow managed to organise a referendum in which a clear majority of the Scottish people turned up and expressed a desire for independence, then that would have to follow.

Only they can’t. Not just secure such a majority. Even organise such a Referendum in the first place.

And nobody, and here I mean nobody other than 4 a.m. correspondents on the Scotsman Web page, thinks that sovereignty of the Scottish People and sovereignty of the Scottish Parliament in any way equate.

So Eck needs legal clearance for his Referendum, assuming of course he ever wants it to take place, (This, regular readers will know, is something I more than doubt.)

The legal opinion, on the record and publicly, that holding an Independence Referendum is outwith the legal competence of the Scottish Parliament is overwhelming. It now includes even me, who for a long time held out on the other side in loyalty to a misplaced faith in McCormick v The Lord Advocate.

The best Eck has been able to do in response is to assert that there (remain) any numbers of lawyers on his side. Asked to name them he has failed to come up with a single one, not excluding his own Law Officers and the two eminent lawyers in his own Cabinet.

So he has been left relying on unnamed supporters and a textbook. Himsworth and O’Neill: Scotland’s Constitution Law and Practice.

Now here I must depart on a number of confessions.

One.

Constitutional Law is not how I make a living. I possess any number of books on personal injury law; family law; criminal law. Even a number of more or less current editions.  Himsworth and O’Neill is not however a textbook I have in my possession. When I was at University the standard textbook was S.A. De Smith’s Constitutional and Administrative Law. Written in the most wonderful English, it was like Paradise Lost, only for lawyers. It is, nonetheless, I accept, now more than thirty years old. So, I suppose, it is no surprise there is a more modern text. And Himsworth and O’Neill is, apparently, it.

Two.

Even after I was aware of their publication, I thought I had absolutely no idea who Himsworth and O’Neill actually were. A bit like Renton and Brown. (lawyers’ joke). But actually I do know who O’Neill is.

Three.

All the really clever women in Scotland are wee. Wee Nicola. Wee Wendy. Wee Lucy Adams. Wee Christine O’Neill. For it is the latter who is the O’Neill. And she is probably the cleverest of the lot.

Now, all lawyers trade on the basis that they personally are the absolutely best lawyer in Scotland and, indeed, I would happily maintain that if you were on a JP Court Breach of the Peace, you’d be much better with me than any of the Big Firm lawyers. If however you had a public law point to be argued in the Supreme Court, and I was unavailable, then you could not do better than wee Christine. In any legal firm in Scotland.
So, if Christine O’Neill thought that Eck’s Referendum was clearly within the competence of the Scottish Parliament that might give even me cause for reflection.

Only she doesn’t.

That's all. Happy new week.

17 comments:

  1. "So, if Christine O’Neill thought that Eck’s Referendum was clearly within the competence of the Scottish Parliament that might give even me cause for reflection. Only she doesn’t."

    You seem to have forgotten the bit where you back that assertion up with any sort of evidence. Perhaps because you know the thing you're citing as evidence doesn't say what you're implying it says.

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  2. You mean a bit like Alex Salmond then, RevStu?

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  3. Well since RevStu isn't playing, can I? (I hope you're well Stuart) Not quite the same. Neither the UK or Scottish Governments will break the code of omerta and release legal advice. Mr Smart isn't subject to the same vow of silence.

    The Canadian Government was quite sure they'd win when they went to the Supreme Court over the Quebec Referendum Part 2, just like Jim Wallace is sure. They didn't. Lawyer's opinions are like that: not much use if the judges think different.

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  4. Sorry, I had missed the original comments here. Here's the link to Christine O'Neill's only public comment (to the best of my knowledge). The latest edition of the textbook was written before the Supreme Court decisions in Martin & Millar v HMA and AXA Insurance v Scottish Ministers http://www.thelawyer.com/legality-of-scottish-independence-referendum-under-the-spotlight/1010888.article

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  5. Sorry, again but you may have to cut out the link. Technical incompetence rather than unionist conspiracy!

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  6. Yes, I've posted that link before, and it makes no direct assertion other than this crucial one:

    "Ultimately, however, the lawyers, and the legal arguments, will need to give way to the views of the Scottish people."

    In other words, lawyers can argue until they're blue in the face and full in the pockets, but at the end of the day political reality, not legal technicality, will decide the issue. And political reality only allows one possible outcome - a referendum conducted by the Scottish Government.

    As for Mr Winton, Alex Salmond and the SNP have in fact frequently cited the exact passage from Himsworth and O'Neill's book to which they refer - goodness knows how you've managed to miss it. It's this one:

    "A recurring hypothetical example with a high political profile is that of a Bill to authorise the holding of a referendum on independence for Scotland. Because its purpose could be interpreted as the testing of opinion rather than the amendment of the constitution, such a Bill would almost certainly be within the Parliament's powers."

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  7. Rev Stu said:

    "Yes, I've posted that link before, and it makes no direct assertion other than this crucial one: "Ultimately, however, the lawyers, and the legal arguments, will need to give way to the views of the Scottish people." In other words, lawyers can argue until they're blue in the face and full in the pockets, but at the end of the day political reality, not legal technicality, will decide the issue. And political reality only allows one possible outcome - a referendum conducted by the Scottish Government."

    Indeed it's an interesting quote in the context of the author's foregoing arguments. But she's surely not arguing that the law on the matter is irrelevant? That would be a strange stance indeed at the end of a post outlining the legal arguments, particularly from a lawyer!!

    Perhaps she just meant that ultimately the people would be having their say irrespective of how the legal arguments panned out and how precisely the referendum will be conducted?

    "As for Mr Winton, Alex Salmond and the SNP have in fact frequently cited the exact passage from Himsworth and O'Neill's book to which they refer - goodness knows how you've managed to miss it. It's this one:"

    No, I hadn't missed that one. I merely said that Mr Smart's failure to cite evidence was a BIT like Alex Salmond ie insofar as that the SNP has been unable to proffer much in the way of concrete evidence. There certainly seems to be more evidence being reported supporting the contrary view.

    But as Angus rightly states there has been no real official statement on the legal position from either side, at least as regards anything approaching independent advice. The UK Gov has clearly proferred a view that a Holyrood referendum would be illegal. To be fair to the SNP they've still to publish their white paper (or whatever) so perhaps they'll be more forthcoming then.

    But as things stand one passage from one constitutional law textbook and the opinion of a deceased judge (as I recall it) are hardly the definitive word on the subject, surely?

    ""A recurring hypothetical example with a high political profile is that of a Bill to authorise the holding of a referendum on independence for Scotland. Because its purpose COULD be interpreted as the testing of opinion rather than the amendment of the constitution, such a Bill would almost certainly be within the Parliament's powers.""

    Well I COULD win the lottery this week, but it's unlikely. Joking aside, the second sentence is a bit contradictory, because COULD sounds a bit 'maybes aye, maybes naw', whereas the sentence goes on to state almost categorically that a referendum Bill would be legal, ie ALMOST CERTAINLY.

    For what it's worth it seems to me that a referendum does relate to the Union, thus since anything relating to the Union is reserved a Holyrood poll would not be legal. And whether it attempted to amend the constitution or was merely advisory doesn't to me make a whole lot of difference. It 'relates' to the Union either way.

    And I love the way Alex Salmond is huffing and puffing about Westminster interference and stating that an SG referendum would be legal, but then adding that he'd be amenable to a Westminster s30 thingymabob, suggesting that he's just posturing and knows full well that he's on dodgy legal ground.

    (Hope you're well too, Angus!!)

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  8. "But she's surely not arguing that the law on the matter is irrelevant?"

    My interpretation is that basically that IS exactly what she's saying. The technicalities of English/Scots law will have to give way, either to the simple matter of the will of the people - who in Scotland are ultimately sovereign - or to superior law, ie the UN Charter.

    "And I love the way Alex Salmond is huffing and puffing about Westminster interference and stating that an SG referendum would be legal, but then adding that he'd be amenable to a Westminster s30 thingymabob, suggesting that he's just posturing and knows full well that he's on dodgy legal ground."

    There's no contradiction there whatsoever. Clearly a Section 30 will make it EASIER, by reducing or entirely eliminating any prospect of a legal challenge, but I have no doubt that Salmond would go ahead without one too, as that scenaria presents him with a whole new raft of political open goals to shoot into.

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  9. Rev Stu

    "My interpretation is that basically that IS exactly what she's saying. The technicalities of English/Scots law will have to give way, either to the simple matter of the will of the people - who in Scotland are ultimately sovereign - or to superior law, ie the UN Charter."

    As I said, to that extent her analysis thus seemed pretty pointless, so why not just cut to the chase and not bother with the first 90% of her article? That's why I think your misconstruing what she said. [Mind you, she is a lawyer, so perhaps my layman's perspective is a tad naive ;0)].

    As regards the UN Charter, are you seriously sure that's a goer? I certainly haven't heard Alex Salmond or any heavyweight Nationalist politician ever make that argument.

    And again as a layman I assumed that the "right to self-determination" argument was more for nations like Tibet vis-a-vis China rather than Scotland vis-a-vis the UK. Thus if the UK is offering a referendum on fair and reasonable terms would Scotland really have any locus at the UN? Perhaps, for example, if an independence referendum was won but the UK refused to play ball, for example, but that's a long way off yet, surely?

    "There's no contradiction there whatsoever. Clearly a Section 30 will make it EASIER, by reducing or entirely eliminating any prospect of a legal challenge, but I have no doubt that Salmond would go ahead without one too, as that scenaria presents him with a whole new raft of political open goals to shoot into."

    Yes, but it would be a bit sad if it all came down to political machinations and an illegal referendum rather than respect for the rule of law and a bit more candour.

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  10. "so why not just cut to the chase and not bother with the first 90% of her article?"

    Well, indeed. But when have you ever known a lawyer come straight to the point with a pithy one-liner when they could write 5000 words and bill you for four hours?

    "Thus if the UK is offering a referendum on fair and reasonable terms would Scotland really have any locus at the UN?"

    Under the UN Charter the UK has absolutely no business offering ANY kind of terms. Decisions on independence MUST be made entirely by the nation wishing to become independent, with no interference whatsoever from the "parent" nation. Them's the rules. Under English law Westminster gets to decide, but under international law (to which the UK is a signatory) it's buggered.

    "Yes, but it would be a bit sad if it all came down to political machinations and an illegal referendum rather than respect for the rule of law "

    It is, in fact, Westminster which is riding roughshod over the rule of law. Both the legal sovereignty of the Scottish people - never surrendered - and the modern statutes of international law are on Salmond's side.

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  11. So why aren't we hearing about all this from Alex Salmond then, Rev?

    Think you've been reading a bit too much Newsnet Scotland ;0)

    Of course, the SNP wouldn't have been keen to highlight the question of the legality of the referendum last year, because they weren't particularly keen to highlight the referendum at all.

    It was that visionary council tax freeze wot win it?

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  12. "Of course, the SNP wouldn't have been keen to highlight the question of the legality of the referendum last year, because they weren't particularly keen to highlight the referendum at all."

    See, I'm happy to have a grown-up debate with anyone, but this sort of lame, tired, nebulous sniping is far too dismal to waste time on. There's a lot to talk about in the next two and a half years, not interested in getting distracted by tedious mud-slinging and flat-out lies.

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  13. And what precisely are these "flat out lies" you're accusing me of?

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  14. I didn't accuse you of any flat-out lies. I accused YOU of lame, tired, nebulous sniping. Anything you inaccurately inferred from my second paragraph is between you and your own conscience.

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  15. Well if this is your reaction to my suggestion that during last year's Holyrood campaign the SNP chose to highlight neither the referendum per se nor its legality then I suggest you go and lie down for the next couple of years ;0)

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