Monday, 8 September 2014


I mentioned earlier that  I had contacted lawyers whom I had read were considering the legality of the Scottish Referendum  in European law.

I have now received a gracious and comprehensive reply, below, from Matrix Chambers.

".......... I can confirm the legal position is presently as follows:

(1)   Because of legal uncertainty as to whether the Scottish Government/Scottish Parliament could legally (i.e. within the confines of the powers conferred under the Scotland Act 1998) the UK Government found it politically expedient to agree with the Scottish Government to amend the Scotland Act to put the matter beyond doubt and expressly give the Scottish Parliament a time limited power (until 31 December 2014) to organise a referendum on independence.

(2)   This Edinburgh agreement left it to the Scottish Government/Scottish Parliament to pass legislation determining the franchise for this referendum.

(3)   The Scottish Parliament has power to legislate only in and for Scotland.  In passing the franchise issue to the Scottish Parliament in effect the UK government made a decision that only Scottish voters, rather than any voters in the rest of the UK could have any say in the independence referendum.

(4)  There are in effect two established voting registers for elections in Scotland: general elections to the UK Parliament; and local government elections for local authorities and elections to the devolved legislature.

(4) For general elections to the UK Parliament, there is an entitlement to vote given to all British, Commonwealth and Irish citizens residing in the UK at the time of the election.   Additionally however UK citizens who were formerly resident in the UK but have moved aboard retain the right to vote in general elections for period of 15 years after they ceased to be resident in the UK.

(5)   For local government elections, there is an entitlement to vote given to all British, Commonwealth and Irish citizens and all other EU citizens residing in the UK at the time of the local election.   This right of EU citizens to vote in UK local elections derives from the Maastricht Treaty and is enshrined now in Article 20(2) of the Treaty on the Functioning of the European Union.   Crucially however there is no retention of any voting rights in local elections for UK citizens who were formerly resident in the UK.

(6)   The Scottish Government decided that the franchise for the independence referendum would follow the local government franchise.  The result is that all British, Commonwealth and Irish citizens and all other EU citizens residing in Scotland at the time of the referendum get to vote on Scottish independence.  No UK national who is not resident in Scotland will get a vote in the referendum.

(7)   Had the Scottish Government chosen instead to follow the model for UK general elections, then they would have referendum from which other EU nationals were excluded from the vote, but in which in principle UK nationals who had been resident in Scotland up to 15 years before the referendum would have a vote in it.

(8)   It should be noted that it was within the power of the Scottish Parliament to vary the existing models for the franchise as they thought fit.  Indeed they did so by reducing the voting age for this referendum from the usual 18 down to 16.

(9)   The use of whether Scottish born expats - whether living elsewhere in the UK or aboard should get the right to vote was barely discussed in the Parliament when the franchise was being decided upon.  This has now become an issue however because the Scottish Government now proposes (which was not known at the time the franchise was fixed) the following in its proposed post-independence interim constitution, a new status of Scottish citizenship which will be afforded automatically and unilaterally by an independent Scotland on "all those who, immediately before Independence Day, hold British citizenship and either— (i) are habitually resident in Scotland at that time, or (ii) are not habitually resident in Scotland at that time but were born in Scotland"

(10)   So Scottish born expats are going to be directly affected by the result of the referendum as regards their citizenship status but are being given no say in whether or not there should be an independent Scotland of which they will automatically become citizens.

(11)   In terms of the legal issues this might raise that could be enforceable before the courts, the only argument Mr O’Neill could come up with is one based on EU law.   The principles of EU law are that no individual should be discouraged from exercising their free movement rights within the EU to travel and take up work in other Member States.  If an individual who leaves to take up residence in another Member State is by that very move immediately and automatically deprived of his rights to vote in crucial issues within his home member State, he may be deterred from exercising his free movement options.   The deprivation of the right to vote in the independence referendum for all those who would or have exercised their free movement rights would seem therefore to be a penalty of disenfranchisement which is consequent upon the exercise of free movement rights and so is contrary to EU law.

(12)   Despite public interest in this issue, there was no-one willing to fund an action before the national courts based on this EU law argument.  Accordingly all that has happened is that a formal complaint has been made to the European Commission on the issue.  A formal complaint was sent to the European Commission about this, but Mr O’Neill doubts, however, if any decision will be forthcoming from the Commission on the issue before the referendum takes place on 18 September."


Mike said...

Thats pretty clear cut then: no case to argue. The whole position was fucked up at point 1.

Point 11 is very weak, and anyhow it depends on the EU commision - not a fountain of purity of motive or action.

SG said...

And they gave you that FOC, Mr I? Fucking hell I shall have to revise my opinion of the legal profession. How in the name of God did UK Government agree to allow the Referendum to be conducted under local election rules? WTF do we pay the Civil Service for?

call me ishmael said...

It says a great deal, point one, mr mike, about the suitability for premiership - or indeed anything - of Winston Cameron and I actually though that point eleven was strong rather than weak - is it the Commission or the Court which would rule finally on this? And if it is the Court I could see it taking huge pleasure in overturning all this, shaming an antagonistic and increasingly Farageiste, ant- EHRC MediaMinster.

Bungalow Bill said...

As you and Mr Mike say, there was a disgraceful and terminal collapse of constitutional integrity by our Fuckwit PM ( described by our top constitutionalist, Vernon Bogdanor, as his brightest student, lest we forget) at the very outset. Once the wider UK was purposely excluded from the franchise, everything else, including 11, was mere tinkering. What on earth, aside from his stupidity, possessed him? Does he want this to happen because he sees this as the only way to get a Tory majority, by dumping the Scottish wasteland? There is something mighty odd in play here. As I suggested yesterday, I think the voters will know on which side their bread is buttered but not for want of Dave trying all in his power to bring about the opposite. Thanks for sharing this Opinion with us.

yardarm said...

You made the point some threads ago, Mr Ishmael, if McMugabe calls it a Scottish Government, not administration, then he`s already independent.

You and others make another point: some fucking Union if most cunts in the Union can`t vote on ' their ' Union.

Matters of the greatest import to be decided and where`s the leader of the Conservative and Unionist Party, the man who's got Disraeli, Salisbury, Churchill`s job ? Washer Gob has fucked off out of it, lest his plummy tones and ninny manner worsen the situation.

A fortuitous gust of wind has not blown the empty suit, that void in the ether called Ed Miliband north of the border.

Salmond hasn`t a clue how an independent Scotland will function: he`s still too busy deciding which emeralds, sapphires, rubies and pearls will decorate his Skirt of State when he`s dancing on the Other Side of Midnight. Ridiculous prat.

Oh, Gordon Snot has weighed into the debate, bringing his eloquence, charm and electoral good luck to the situation.

Bungalow Bill said...

What's intriguing here is that the UK parliament wilfully divested itself of the power to determine the very future of the UK. Mind-boggling. What was the debate on that point in parliament, how was this abdication/ betrayal brought about?

Alphons said...

At what point do the clowns come on blowing kazoos and banging drums? Will they do the old act with the car that gradually totally disintegrates?

Alphons said...

At what point do the clowns come on blowing kazoos and banging drums? Will they do the old act with the car that gradually totally disintegrates?

Mike said...

Mr I: my reading of 11 was that nobody forced Jock to move abroad, and nobody is stopping him coming back, or preventing him voting if he does. Thus his rights to free movement are not impared.

Anyhow, if it depends on a European Court making the judgement: a) it will take 15 years, and b) the judges will be told the answer beforhand.

Doug Shoulders said...

Is Cameron devoid of a pair, or is something more sinister afoot?

Imagine a proper PM meeting with his/her cabinet. “Those ungrateful Jock fuckwits” “You..cunt (Points to nearest mp with suspect political credentials) get up there and sort it”
“The breakup of the UK ain’t ‘appening on my watch” “Throw the wee bastard under a bus if you have to”

(10) A smack in the face. Effectively your nationality will change but you never got to vote on in cos you were living elsewhere.

(11) Just seems to state that(10) is bullshit

Rosevidney Rustic said...

Colour me depressed and unhappy.

callmeishmael said...

I think that politically expedient is a felicitous use of language, although ambiguous - what us it which is being expedited?

I don't read "penalty of disenfranchisement" as the equivalent of "tough shit " mr mike but as an offence against EU founding principles. Few, however, in power, have even raised it as an objection and I suspect that they now won't, it would require some civilian money and enthusiasm, and from a country which thrice elected Blair and which tolerates this savage, unelected spiv coalition. enthusiasm is unlikely, not when Bruce Forsyth is leaving the dancefloor, anyway.

tdg said...

If the referendum turns out to have been properly conducted within its terms then no government could possibly overrule it, especially under European law: it would be suicide politically.

The establishment was too slow to pick up the pervasive derealization that the digital world has effected. So much of our lives is now fantasy, and so real is that unreal, that sanity no longer has any real purchase.

Doug Shoulders said...

The EU law argument seems to have been overshadowed by the temporary residents right to vote that everyone is going on about.
That and the lowering of voting age.
Nice maneuvering there.

mrs narcolept said...

If I were Scottish and living abroad I would have come back, though it were ten thousand mile.

I honestly don't know how Cameron manages to get his shoes on the correct feet.

callmeishmael said...

But you would need to have stayed, mrs narcolept, if not 'til all the seas gang dry, my dear, at least until you were on the electoral roll, for many an impossibility.

callmeishmael said...

Would it prove more politically suicidal to attempt its repudiation, mr tdg, than to have allowed it in the first place under such flawed terms?

Mike said...

This was not done by mistake. There would have been a lot of legal, constitutional, and probably even the electoral commission, input. To deny Scots abroad, whilst allowing EU residents in Scotland the vote was deliberate. This smacks of a deal with the EU to break up the UK, with Salmond the willing idiot being used as the tool.

callmeishmael said...

It was nice manouevreing, mr doug shoulders, the young being far more likely to vote against the status quo, any status quo, just to be objectionable. And sixteen year olds voting in the referendum won't be allowed to vote in the next general election, how's that all work?

callmeishmael said...

Such European voices as we hear, though, mr mike, belie that conspiracy, urging Scots to vote No. That, of course, does not mean that you are wrong, it does infer however, that Cameron and Clegg and maybe even Miliband are engaged in an elaborate charade, doesn't it?

Mike said...

Despite what Cameron says, it suits the Tories to get a YES. If there were 50 Tory MPs in Scotland there would have been no referendum.

As the Lady once said, they would say that wouldn't they.

I usually go for cock-up rather than conspiracy, but this stinks.

SG said...

A wee story from George Robertson in an FT article a few days ago, not someone I would normally quote from and whom I think you have, probably rightly, excoriated here in the past Mr I (extract pasted here to save the arse ache of getting through the Pay Wall if you don't subscribe). Fuck he may have made it up but somehow it captures the zeitgeist of this time:

"My taxi driver in Glasgow last week told me he had switched from No to Yes. I asked why. He listed the reasons and I countered, to little avail. Then he delivered the killer blow. Of course there would be difficult negotiations after a Yes vote. Of course there were a lot of risks. “But,” he added, “the negotiations will be done by the likes of you and Gordon Brown and Alistair Darling. You guys will sort it out.”
I was stunned. He was prepared to break up my country; unpick three centuries of integration; face unquantified risks and the cost of setting up a state – yet he wanted defenders of the union to save him. Pure brass neck, but he is not alone....".

This is how far we have come from that old Kennedy maxim "ask not what your country can do for you, ask what you can do for your country". The age of irresponsibility. Consumers - not citizens - or even 'subjects'. What's a UK passport worth? A monkey? Maybe a grand? Here, here's £500 and a nice new 'Alban' passport. The future is 'free', free NHS, free tuiton fees (an oxymoron if there ever was one), free prescriptions (especially ones delivered by the SNP), tory free, free willy, free fucking Nelson Mandela. Everything must go - its all 'free' don't you see?

callmeishmael said...

Yes, I saw George Arseface on something, talking about NATO. and Dee-Fence and Trident and he was very forthright, no tippytoe fucking about like Darling, Salmond is talking bollocks and acting like a cunt, was the burden of his song, they shoulda rolled him out before. If they had wanted to win, that is.

SG said...

That is the nub of it Mr I - if they had wanted to win... The chips are down - send in Gordon Brown (sorry about these rhyming couplets - too much Rupert Bear as a boy). Does the 'bigoted woman' man really play well even up there in the Caledonian rust belt?

mongoose said...

The arrangements for the referendum were always a little on the generous side, were they not? 16-year-olds, a simple majority, residency alone. And no Devo-Max made sure that the bill was always going to be lighter. My sources tell me that DMax was very high on the list of priorities and that any independence will be shaped to be just that but with flags and tartan-clad policemen.

Repatriation of the military shipping industry, repatriation of the submarine fleet and facilities... How many jobs and pound notes is that shipped back across the border? And the oil was long since carved up, dumping of 50-60 Labour MPs, a looming economic meltdown for the UKIP-leaning to gawp at as it goes down. You'd think Cameron was playing a blinder if it wasn't Cameron. I have long thought though that he has a Dorian Gray Genius in his attic.

I am still surprised that it is headed that way though. Anyway, I am off to Bonnie Wee working for a few days next week. It should be a hoot.

Anonymous said...

If Jock goes full retard, how long before the graffiti starts appearing, from Hartlepool to London; "Why Wait? Fuck Off Now?" (Two years' negotiation and bedding-in? Aye right.)


callmeishmael said...

It will certainly becoma a fractious and bitter national preoccupation, mr verge, in the wider nation and here, if it happens and only less so if it doesn't. I rarely give tuppence for the acid wisdom of the market trader but I saw one, yesterday, in Derbyshire, saying If they wanna stay that's fine but why should we bribd them to? Why should they have more than us? I wanted to jump in the car, drive down to Derbyshire and buy all his bananas.

Gordon Snot? Offering sweeties? You will know many's a comparable literary farce.

callmeishmael said...

Wasn't Ollie Letwin your eminence gris, mr mongoose? Certainly the subtleties and chicaneries of this are beyond Wisteria Winston.

inmate said...

There is only one winner in all this independence Bollox, the EU.
It is the end of the Union of Kingdoms no matter which way the vote goes.
Everyone stays in the EU, the islands of GB are carved up into the regions, Scotland is region 11, I believe.
If the Scots vote NO they will be ending the Union, created in 1707, and joining UK PLC. The differences between Scots and English Law will be slowly, subtly rearranged, then merged into EU civil Law.Guilty till proven innocent.
Brenda doesn't give a fuck, she's above politics, she said so yesterday and she'll still own everything.

Oceania will always be at war.

call me ishmael said...

Brenda, Queen Brenda, what a despicable old crow, time she fucked-off and gave Brian a chance, at least he puts his foot in it now and again, unlike his Ma, who has spent a lifetime in cowardice, failing to speak up on anything, wars, crimes, beasting, depressions and now this shit, concentrating only on defending the indefensibility of her pampered family's position. If she cannot speak up on this she is good for fuck all. But then we knew that, anyway, most of us. Never mins Cameron, if the Union falls she should be the first to fall on her jewelled sword, rotten old bastard.

mongoose said...

I see that the No (Surrender) Orangemen are marching this weekend, Mr I. You would have to have a heart of stone not to laugh.

John Gibson said...

The United Kingdom (British is properly a geographical term - if Wessex was resurrected they would still be British) is a poltical union of two sovereign countries, either of which has the unilateral right to secede from. It is not England writ large. The Scots parliament was suspended, not abolished.
Scotland (or England if it so chooses) can leave without asking permission from the other.

We are not your colonial possession, unlike Wales (conquered and absorbed) or Ulster (a deliberate by-product of resettlement policies). The English and/or British posters here seem incapable of understanding how entitled they appear to everyone else.

call me ishmael said...

We may have exchanged more agreeable correspondence previously, mr john gibson, on a different topic, no matter, although you are welcome here, kind stranger, on this matter you are incorrect from start to finish and in a typically abrasive, contemptuous and, might I saym bullying fashion.

I know you don't mean to bully but consider: I am of your we, you and I form the we of which you write, yet though you do not speak for me, you presume to, without my concurrence, you colonise my opinion, like some Sahib, speaking for the native scoundrels.

I am a law-abiding, tax-paying Scot, here resident, how dare you presume to include me in your misrepresentations?

Your opinions and conclusions are not mine; is it not impertinent as well as incorrect for you to claim the Scottish identity as you do, to claim, as is implicit, that you and only those who agree with you are the definitive, the only, the purest we of Scotland. You - and they - are not, furthermore, your insistence on some ideological purity reeks of something quite nasty as does Mr Salmond's insistence that ANY disagreement with his numpty vision is scaremongering. Can't you see, even for a moment, how deeply unpleasant this all is, no matter how you cloak it in bogus patriotism, can you not see that your inability to get along with your countrypersons never mind fifty-five million near neighbours, makes fools and churls of you.

As for events of three centuries ago, well, we still, we Scots especially had a flourishing slave trade, only the rich could vote, women were treated as possessions, the poor were comfortless, who but an idiot would hark back to a suspended parliament from that period as some Golden Age of Man.

Such social justice as we have managed to cling to is derived not from Holyrood but only from the efforts of organised British labour, neither English or Scottish, if you think that a divided and separate Scotland can stand better alone against the brigandage of GlobaCorp then the constituency for which you speak is tiny, feeble, maladroit and uncomprehending. In any event, it does not include me, your neighbour.

What then for me, should you succeed, mr john gibson, re-education? That is the logic of your position, for according to you I am uneducated in the matter of my own country, won't a NewScotland owe it to me, to get my head right?

inmate said...

My whole point mr john gibson, the Union will end with a vote either way. In event of a NO vote Westminster will have US ALL believe that the Scots are more than happy with being part of UK PLC. And that Wisteria speaks for all when it comes time to'negotiate' with Brussels, the real power behind this vote. Yes WeeEck will get his lower tax rates and more free stuff, predominantly paid for by the English, or so they tell us, but it's all paid for with 'funny money' which all of us British pay for in Tax to a private concern.

SG said...

Mr Gibson - have you ever read the 1707 Act of Union? I don't think it supports what you say. From the Preface:

I  That the two kingdoms of Scotland and England shall, upon the Ist day of May next ensuing the date hereof, and for ever after, be united into one kingdom by the name of Great Britain,[*] and that the ensigns armorial of the said United Kingdom be such as Her Majesty shall appoint, and the crosses of St. Andrew and St. George be conjoined in such manner as Her Majesty shall think fit, [**] and used in all flags, banners, standards and ensigns, both at sea and land.

From where do you draw the unilateral right of either Scotland or England to secede from this Union? The Act suggests that at the point of union both England and Scotland ceased to exist as 'Sovereign' entities and were sumberged into a new one called Great Britain. I do not think that Scotland has any greater right or power to secede from the Union than any other part of Great Britain such as, say, the Isle of Wight or 'Wessex' to which you refer.

call me ishmael said...

Thanks for that, mr SG, I had thought it said something like that - given the circumstances of the union it would have had to, it was not an agreement between equals, Scotland being supplicant as a result of its financiers shoving a broken bottle up its arse, then as now.

SG said...

My pleasure Mr I. Though I would not wish it upon you, I am somewhat disappointed that more Cyber-Nats don't turn up here. It has been a while since I played Pinball!

mongoose said...

And more, where does Wee Eck think that the negotiation is going to go?

OK, you want out but in the absence of a court to saw off an arm and a leg, you can just tootle off down the road with your arse hanging out of your trousers. If Cameron had an ounce of anything, he would bankrupt Scotland between referendum and independence. "That share of the National Debt you say that you're not going to pay? Well, as a prudent custodian of rUK funds, I am required to hold that here in London pending the negotiation round and hence I'll be turning off the money taps. Y'all can eat haggis around your peat fires this winter." McIndependence Day would never happen.

DtP said...

Win elections

callmeishmael said...

My reading is that most of UK broadcast media is on board with Salmond, he is the story, independence guarantees big paydays, overtime, expenses, endless, sensational copy, mr mongoosd, as well as providing many hacks with an opportunity to kick whoever is negotiating on behalf of rUK; Emily Stringbag, for instance consistently swoons over any old tongue-tied Jock and is wearily dismissive of any unionist. It would require more courage than is commonplace in MediaMinstef to enact your perfectly proper suggestion.