24th November 2022
A commenter over at Mastodon came up with this thought-provoking suggestion:
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You may recall our old friend Article 50:
This was the provision added to the European Union treaties in 2009 that enabled a member state to unilaterally and lawfully leave the European Union.
Before Article 50 was added, any member state that would have wanted to have left the European Union would either have had to have broken the treaties or negotiated an exit treaty.
(No member state did leave before 2009, though the departure of Greenland – part of the Kingdom of Denmark – from the European Economic Community in 1985 required a treaty.)
The new Article 50 ensured that any departure could be done lawfully and unilaterally.
(It was assumed by some that it would not actually be used.)
If a member state had wanted to leave then no other member state could then stop it.
The other member states, and the various European Union institutions, had no veto.
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What provisions do we have in the United Kingdom that approximate to Article 50?
For Northern Ireland we do have section 1 of the Northern Ireland Act 1998:
The decision to have such a poll, however, is a matter for the United Kingdom government:
So the people of Northern Ireland can elect for Northern Ireland to leave the Union, but only if the United Kingdom first consent to such a poll.
This is at least one step away from Northern Ireland having its own Article 50.
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For Scotland there is the possibility of a “Section 30 order” which would allow there to be an independence referendum, but – again – that order has to be given by the United Kingdom government.
But this is at least two steps away from Scotland having its own Article 50.
(And I am not any expert on Welsh devolution but a glance at the relevant legislation indicates that Wales may be three steps away, though I would welcome any comments on this.)
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If any of the constituent parts of the United Kingdom wished to (peacefully) leave the union there would, of course, have to be treaties and extensive legislation.
We know this, because it has already happened when Ireland left the United Kingdom.
Presumably a similar treaty and extensive legislation would be required if and when Scotland (or Wales) leaves the union.
There is nothing in place like Article 50 for Scotland or Wales or even Northern Ireland (or I suppose England) to activate unilaterally.
Should there be?
Discuss below.
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Does any country in the world have a mechanism for parts of itself to trigger its departure from the country it belongs to?
From a purely selfish point of view I’m dead against it, because I am British, not English, and ending the UK would be a stab in the heart for me. I know that doesn’t matter a jot to law and justice of course. But it’s difficult for me to be objective about it.
The answer to your first question is Yes, and the country that has such a provision is the UK. As David mentions, there is just such a mechanism included in the Northern Ireland Act.
However, I would go a little further than David: I’d argue that Schedule 1 of the Act (Subject to paragraph 3, the Secretary of State shall exercise the power under paragraph 1 if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland) obliges the Secretary of State to organise the vote under certain circumstances regardless of whether the government of the day wants it.
For instance, if there were multiple elections in which pro-unification parties won a clear majority (perhaps two legislative assembly elections with a Westminster election in between), I’d suggest that the Secretary of State would have a legal duty to organise a referendum.
But anyway: I hope that answers your question. The country that has a legal mechanism for secession is the UK. There may be others, I don’t know (although there are many historical examples of unions separating, so it’s not an unprecedented idea).
I’m not sure this answers Henry’s question?
He asked about a ‘mechanism’ for parts of itself to ‘trigger’ its departure’. That sounds like something more automatic than a Sec of State deciding whether something is likely or not.
Something more like Article 50.
My understanding is that Ethiopia does. They brought it in after the nasty war over the Eritrean exit. They also completely redrew their internal boundaries at that point, to make them better match ethnic regions. That seemed sensible, as Eritrea is not an ethnic region – most Eritreans are in fact Tigray.
But it seems that powerful interests in Tigray chose not to trigger the democratic secession process recently, but start a war. My guess is that is because they wanted to rule more than just Tigray. The Tigray Peoples Liberation Front ruled all of Ethiopia for about 27 years until the accession of Abiy.
The constitution of Liechtenstein allows its municipalities to secede if a majority of voters so decide (Art. 4(2)):
“Individual communes have the right to secede from the State. A decision to initiate the secession procedure shall be taken by a majority of the citizens residing there who are entitled to vote. Secession shall be regulated by a law or, as the case may be, a treaty. In the latter event, a second ballot shall be held in the commune after the negotations have been completed.”
Presumably there is no need for anyone’s permission to hold a referendum that England wishes to leave the United Kingdom, or that the English wish the Scots or Welsh to leave?
If there was (and I am not yet convinced, despite the obvious parallels with the EU), it would have to be agreed between Westminster and the relevant revolved authorities. The current Westminster shows no appetite whatsoever for such a negotiation or agreement. And presumably there would have to be a matching article for joining the UK too? In case the Isle Of Man had a change of heart or something.
Margaret Thatcher used to say that she would negotiate with the SNP when they had half the MPs in Scotland. (At the time they had a tiny handful.) This stance has obviously changed, though by what mechanism I know not.
The SNP used to stand for General Elections on a manifesto of “A majority of Scottish MPs being SNP MPs will be a de facto vote of consent for independence”. It changed its GE manifesto some time after Devolution (can’t remember when exactly, sorry) and has enjoyed increased electoral success ever since. The SNP’s new position is in fact its old position, but with the benefit of a stronger voter base.
Thoughtful and thoughtful post as usual.
One thought it provoked in me is: is England then three or four steps away from an Article 50 style leaving of the United Kingdom?
Intellectually stimulating, but realistic in a power mad, centralizing administration?
I have been reading the background to independence of Kosovo, Easy Timor and South Sudan. Surely there is a realistic route through the UN, not via Westminster?
Another delicious option would be via the Decolonisation Committee of the UN – after the UK has already received a bloody noise over the Chagos Islands.The
But then, does Nicola Sturgeon really want independence?
Any group of people, with sufficient majority, to reflect the will of said territory, deserve the right decide if they wish to continue in any union or leave. The English Parliament does not hold any right to disallow said expression of will. The English should get used to the idea that, at some point in living future, Scotland will leave the Union. Same with northern Ireland & thereafter Wales & potentially Cornwall & who knows what else…. And, the English will also have to acknowledge, they let this genie out of the bottle with brexit.
Disclosure: I am English & Scottish, I voted AGAINST brexit.
It’s not the English parliament, it’s the UK parliament. There is no English parliament.
And Brexit didn’t let the genie out of the bottle – there was an independence referendum in 2014.
Article 1(2) of the UN charter states that a UN objective is
‘To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;’
The question is ‘what is a people?’
I think an argument could be made that if you have clear constituent parts of your country (such as Scotland in the UK), with a clear seperate identity, the UN charter obliges some form of Article 50 mechanism
If any of those constituent parts you mention has a more recent history than others of being a sovereign state, with a sovereign ruler who was no less royal than any other in Christendom, — the Scottish Kingdom v. the Kingdom of Northumbria, say — the population of that constituent part tends, (and some would say with good reason), to feel a common identity that gives it the right to call itself “a nation” as distinct from a state, e.g. Britain.
Britain, on the other hand, has a veto in the United Nations.
A UK veto at the UN is completely irrelevant to the international law here.
The international system is based on states, and their sovereign equality. The UN Charter is explicit in non-intervention (Art 2(7)) and the non-use of force against states (Art 2(4)). There is no general right to secession in international law*, as the leading case makes clear. The exceptions are colonialism and (arguably) genocide, neither of which apply here. This is also reasonable – stability in the international system is important and valuable, and states always being under the threat of rupture doesn’t do much for the international system, which is why several self-declared ‘states’ are not recognised by the international community – Somaliland being the least contentious.
Self-determination in the external mode (ie, secession/independence) has been understood since the 1950s as applying once at the point of colonial independence, with the new states having the right to exist inside their pre-existing borders – which is why the international community supported Nigeria over Biafra, for example.
Scotland already enjoys self-determination in the internal mode (ie, devolution) and so SNP / Yes arguments of ‘appealing to the UN’ are as irresponsible as they are useless – there’s nothing to see here. If the SNP leadership wish to be taken credibly, they should make this very clear to their supporters.
My personal view is that whilst there is neither an international legal basis for another referendum, nor an Art 50 constitutional route in the UK constitution, there probably should be the latter as part of a resetting (and pace our author/host) a codification of the UK constitution.
This would include:
– formal, permanent recognition of devolution to all four administrations**, leaving the UK Government with the powers it currently has in relation to Scotland. Such a constitutional guarantee would remove any residual risk that Westminster could legislate to end devolution (it would explicitly remove the right of the monarch-in-Parliament to change the constitutional settlement without a constitutional amendment – say a majority of the four administrations and a majority of the population***
– Such a constitution would formalise the division of powers between the UK and devolved government (I’d use same powers as Scotland has today for all four administrations, with the additional powers and safeguards of the GFA in NI.)
– A formal route out of UK, similar to Art 50, with pre-cooked agreements on debt and assets (e.g., population proportionate share of the UK national debt and long-term national level liabilities (e.g., nuclear decommissioning); no right to a common currency; UK assets physicailly in the departing administration pass to it) and both a trigger clause and a minimum period between referenda (I’d say 20-25 years to avoid neverendum).
Just my tuppenth worth.
*In Re: Quebec, cited by the Supreme Court
**This explictly requires an English Parliament, and it would be up to this body whether it chose to have regional devolution within England.
***A double-lock like this would ensure that England couldn’t amend the constitution alone but also that the three other administrations with 15% of the UK population could not do so without England.
Sure, there is no legal basis for a second referendum, but there is a moral basis (the situation in relation to membership of the EU has changed). That is unlikely to change again any time soon, so the argument of a possible neverendum, as in Quebec, doesn’t stand up.
There is no legal basis for the argument that a referendum result lasts for a generation either. A general election victory fought on the basis of rejoining the EU would certainly trump the 2016 result.
Kevin, hi
All I’m saying is that there should be a written agreement in a constitution of how frequently this question should be asked. It is much more important than a GE, as it is existential to the state, and if nationalists (of all flavours – English, Welsh and Irish nationalists would have an Art 50 right here too) are to have a right to a referendum that by its nature would dominate political life for a year or more, then it is reasonable that there is a minimum length of time between them.
Ask the question the other way: if there were to be a s30 order to produce a binding referendum next October, and Scots voted against independence again, how long do you think that should be binding for?
What I do notice is that section 1(2) of the Northern Ireland Act 1998 doesn’t have space for what I’ve always thought apt, which is an independent Northern Ireland. Looking at NI, it has managed to carve out a culture that is independent of both GB and RoI, such that I’m not really sure that it fits in with either country. But it looks like Northern Ireland doesn’t have that choice. It can either remain a part of the United Kingdom, or cease to be a part of the United Kingdom AND form part of a united Ireland.
I do think the wider point should be part of a discussion on a federal UK, something I’ve had an interest in for some time alongside a break up of England (BRING BACK THE HEPTARCHY!). But I’ve always got the sense that the emotional attachment to Westminster continuing to work as it does has stood in the way of any real debate about serious reform.
There’s about zero takers for an independent NI anywhere.
According to the author Article 50 was never meant to be invoked:
https://www.independent.co.uk/news/uk/politics/brexit-eu-referendum-britain-theresa-may-article-50-not-supposed-meant-to-be-used-trigger-giuliano-amato-a7156656.html
For us Scots, therein lies the rub. How can we trust a Westminster which won’t agree to a S30 order to draft, pass and enforce a fair, useable and practical legal mechanism for departing the UK?
And even if one Westminster parliament is briefly possessed by angels and saints, there’s no guarantee that a subsequent parliament would abide by their generosity. That Fixed Term Parliaments Act didn’t last very long, did it?
The divorce analogy is important too. Nobody surely would now argue for the situation where a wife can only have a divorce if her husband allows it. The situation of a member state of the EU, thanks to Article 50, is much like the present situation on divorce. The situation of Scotland, thanks to Section 30, is more like the older situation on divorce.
If it’s a voluntary union, there has to be a way for either party to dissolve it. If there isn’t such a way, it’s not a voluntary union. I don’t believe the Scotland Act trumps the Claim of Right.
That would appear to treat the Act Of Union (and subsequent agreements) as a contract, rather than a treaty. While the two are both written agreements between parties, the similarities seem to end there.
Although your approach leads to the interesting though experiment of Scotland asking the Supreme Court for a Wednesbury Unreasonableless declaration…
The participants in the contrivance of the Act of Union — on both sides — were a very different demographic from the one that lays claim to a voice — on either side — in this debate today. I see a parallel with the situation expressed in the title of Andy Wightman’s book about the enclosures and clearances in Scotland, “The Poor Had No Lawyers”.
Curiously it was that not notably “socially liberal” body, the Presbyterian Church, with its determination to give every Scot unmediated access to the Word of God through literacy, that eventually enabled increasing numbers of the common people to read and write material of a secular and progressive nature.
In some ways it is notable – and this is no criticism – that the case of England leaving the United Kingdom isn’t even on the list of options to be enumerated.
It’s over of those outcomes that is it so many steps away it is hard to even know where to start asking the question.
As England has a majority of MPs in Parliament (and presumably a majority of Lords) wouldn’t “England” be able to legislate for independence directly or is there a veto that the other nations of the UK could employ?
Thank you for putting this up, David.
Beyond the different constituent nations of the UK, there is also the situation of, for example, the Channel Islands.
Despite not being part of the EU, they were directly impacted by, notably, the loss of the Granville Bay Treaty, which you and I have discussed previously, David.
The second image (below the link to Schedule 1 of the Northern Ireland Act) is the same as the first – is this what was intended?
Yes, thank you – now corrected.
What about if England wanted to leave the Union? So for example Scotland, Wales and NI want to rejoin/join a different Union, but England doesn’t.
Of all of the constitutional follies of the last decade, Cameron’s response to the 2014 referendum is for me the greatest. Rather than humbly accepting victory and accepting that 45% of Scotland’s population wanted to leave on the basis of a deeply-flawed prospectus, Cameron’s immediate response was the nonsense of EVEL.
What should have happened was a proper constitutional convention to agree what devolution meant* and under what circumstances a future indepennce bid by any of the UK constituent parts would be allowed – and the minimum time between them (say 25 years). Instead, we have the current mess – though I was delighted to see their Lordships getting the international law on the link between self-determination and independence correct, based on In Re Quebec.
*Personally, I’d prefer federalism based on the current Scottish powers all-round, with the Westminster Parliament responsible for the UK commons (environment, single market, defence, foreign policy, trade, strategic transport) and the rest devolved.
One of my favourite UK political thought-experiments is trying figure out what a map of a Federated UK would be like.
To what extent should existing boundaries be kept? Should the subdivisions be economic, social, political, geographical, or some combination, and what weighting should be given to each factor?
Would Cornwall be big enough to be a region in its own right as its independence advocates say it should be, or would it have to exist as part of a larger West Country bloc?
And most important of all, where would the capital of Yorkshire be??
(Although if the country did become fUK’d, it’s a perfect time to rejig the Lords into more of a Senate than an Upper Chamber, if that sort of thing is one’s constitutional bag)
For the sake of completeness, how many steps away is England from having its own Article 50?
I would say England is only a single step away. With over 80% of the population and of the MPs at Westminster, England could immediately legislate for independence in a way not open to the other 3 nations.
Surely the bigger constitutional issue for debate is not how we would withdraw (Article 50) but how far Scotland needs to go to become “an independent country”. Despite all the pains of the post referendum debate on “Brexit” debate, it seems that we have forgotten the lessons we might have learned from the painful years resolving exactly what type of Brexit we had voted for. It’s embarrassing that so many people are talking about calling for the right to hold indyref2 without putting forward the vaguest suggestion as to what they mean – or don’t mean – by “an independent country”. The currency, the borders, the rights of citizens in the new structure, either need to be defined before indyref2 or that referendum (or next General Election) needs to be treated as the first vote of several, not the single occasion to hear the “will of the people”.
England does not willingly give up its possessions/ colonies. Only when it is untenable to do so. NI was always the Achilles heel of Brexit – a square that cannot be rounded. Real diplomats will concede that in the end the terrorists / freedom fighters always have to be part of the discussion, whether the Mau Mau or the IRA. The closer they come to the home country, England, the harder it becomes. Home Rule for Ireland was all but agreed in 1914. Scotland’s release will be even more difficult from London’s clutch.
Two thoughts:
First, in respect of NI, Westminster’s freedom to give or withhold consent to a border poll is not unconstrained. The Sec of State must direct a poll to be held “if at any time it appears likely to him that a majority” would vote for a United Ireland. While there’s obviously a margin of appreciation for the SoS, presumably his decision could be reviewed. Plus it’s worth noting that these arrangements aren’t unilaterally determined by Westminster; the UK has entered into treaty obligations under which UK domestic law must provide in these terms, so NI’s qualifed right to self-determination is internationally protected.
Second, with regard to the frequency with which Scotland might be permitted to express its views on independence (Toby Fenwick suggests 25 years) the term in respect of an NI border poll is 10 years. It might be difficult to justify different terms for different parts of the UK. And, apart from that, 25 years seems to me altogether too long. If a majority of Scots have a settled view that they wish to leave, the Union lacks democratic legitimacy if it is held together simply by refusing for a generation to allow them to say so.
Is there an Article for England to leave the United Kingdom? Could leave all its debts to rUK.
Article 50 is part of a set of constitutional treaties etc governing the EU. If there was an article 50 for the UK isn’t that an argument for having a more formalised constitution?
On referenda I have always thought we should have a referendum in England on whether we want to remain United with Scotland. I should declare that I do and I consider that before the Scottish people vote in a referendum- if they ever get another one- they might wish to know what the English think.
At present, 57 of 129 MSPs represent UK-wide parties, and the equivalent in the Senedd is 47 of 60. However, I can see a time when those numbers are close to zero, only a few corners of hardcore unionism (Tories, in other words) clinging on to the old ways.
The distance between Welsh Labour and its Westminster parent has been steadily growing for years, whilst the rationale for remaining part of UK Labour has shrunk, and the presence of pro-indy members and ASes has grown from effectively nothing to a significant chunk of the party.
If Welsh Labour becomes an independent party – which I believe it will, though not immediately – I would expect the LibDems to follow suit. And even if the Tories don’t, it’s not impossible that a distinct Welsh centre-right party could emerge.
Similarly in Scotland: the existing Scotland-only parties may grow, new parties might develop, perhaps the UK parties might separate.
If we reach a point, several years from now, when UK-wide parties are no longer a meaningful presence – as they already aren’t in Northern Ireland – then it would seem to me politically inevitable that a legal mechanism for independence (including for England) would be created.
Following your logic to it’s next step, the ancient Kingdom of Cornwall is presumably four steps away from securing independence?
If you can point to devolution legislation already in place for Cornwall, then yes.
If you cannot point to devolution legislation already in place for Cornwall, then you are making a daft point.
That would be the fourth step then – introduction of devolved government to Cornwall.
I’m not really sure what point I was making though (other than wondering aloud: who knows where the inevitable dissolution of the United Kingdom will end?)
If only Ireland had been allowed to leave peacefully, or better, never coerced in the first place.
And still the English will not learn.
I don’t think you can pin this one on the English, or more accurately the British. It was the unionists in Northern Ireland that insisted on remaining part of the UK in 1922. The British Government would probably have agreed to Irish independence without partition.
The interesting word in the NI agreement is ‘shall’, rather than ‘may’. So it would be possible for Irish Nationalists in NI, when able to show a consistent majority in opinion polls and elections, could go to the SC and ask for a ruling that a reluctant SoS must get on with holding a referendum on leaving. For the SoS its not optional.
At school we were taught about the principal of national self determination but an interesting exercise might be to ask: In what sense should any provision to allow Wales, Scotland or Northern Ireland to declare themselves sovereign and independent be different from a provision that would allow any geographic area, e.g. Yorkshire, Birmingham or Number 23 Railway Cuttings from declaring themselves to be a nation?
The most obvious differences are that the smaller the area then the easier it is to get a majority for your cause and with appropriate gerrymandering we might end up with some rather odd shaped territories.
I’ve even seen suggestions for virtual nations. Though crypto bros in the metaverse leads us further than my mind is willing to stray with on a cold November morning.
That leads us to wondering if any new nation should be able demonstrate a level of independence. “The Dominion of Our street and nearly half of Ashley Street” would be an enclave dependent on the surrounding area for water, sewerage, electricity and any skills and services that couldn’t be provided by a small population. However the Republic of Yorkshire or the mighty city state of Birmingham would be better provisioned in terms of teachers, nurses and nuclear safety inspectors. Each having populations comparable to that of Northern Ireland.
Which in turn reminds us that the prospect of Northern Ireland leaving the UK doesn’t lead to the six counties standing alone but to them joining the Republic.
So if Scotland were to leave the UK should Newcastle be allowed to petition to join them?
It might be tempting to simplify this by suggesting that only areas with a history of being a separate a nation might be eligible for such a vote but go back far enough, England was a multitude of different kingdoms with different and vague borders over time so separatists could scour the ancient texts for the best fit to their chosen borders.
That certainly allows Newcastle to join Scotland. York has a great variety of borders to choose from and Birmingham has to bring Mercia along with it. However it does at least remove “Number 23 Railway Cuttings” and “The Dominion of Our street and nearly half of Ashley Street” from consideration.
Perhaps the lesson here might be that whilst it is certainly unfair and irrational to legislate on these matters on a case by case basis according to whim or diktat, when you start alluding to general guiding principals or rules, you need careful thought before those principals or rules lead you in unanticipated directions.
This response ignores there is already a devolution settlement in place. This response also ignores that our very polity is called a united kingdom (the clue is in the name). So whataboutery about Newcastle shows a lack of understanding of what is at stake here.
Then there is the fairly well-known story about Berwick-Upon-Tweed getting a separate mention in treaties along with “Great Britain and Ireland” because of occasional disputes about which side of the border it belonged; the alleged consequence being that when its name was omitted from the treaty ending the Crimean War, the town technically remained unreconciled. Again allegedly, when a representative of the Soviet government was visiting, he received from the Mayor a document affirming that hostilities were finally over and was told, “The people of Russia can now sleep easy in their beds.”
I can’t see any point to an Article 50 for the UK apart from as a talking point. And we have a pleathora of talking points around – something to take the chattering classes’ mind off such boring things as inflation or the uselessness of government of any stripe. Nothing substantive is both available and acceptable to the politicians – so flim flam it is.
Expect more talk of Swiss Rolls or naughty surveillance cameras or a certain Baroness or ‘education funding’ or ‘new immigration policies’ and many more. Nothing will come of any of them, they are just hot air balloons to distract the chattering classes for a day or two.
We have say 18 months of this sort of thing to look forward to. The upcoming excitement may include increasing inflation, the Ukraine conflict ongoing and fuel prices rising further. So recycle those old old stories and distract distract distract.
Then the run up to 2024. What fun. Those inclined to cruelty might hope the Tories win another term.
One of the advantages of having an unwritten constitution is that it’s relatively easy to argue that it already contains an ‘Article 50 equivalent’ – though the argument would need some examination of what our constitutional foundations actually rest on!
The constitution – written or unwritten – is not the same as the statute book, Malcolm: there’s nowhere for an “Article 50 equivalent” to hide, because that would be a statute, available to anyone who cared to look.
That’s true if we confine ourselves to a narrow meaning for ‘Article 50 equivalent’ (i.e. as formal recognition of a people’s right to secede). But, if we take a broader meaning of it (as a judicially-recognisable right) then it can hide in the cultural landscape from which our constitution derives its legitimacy.
But surely the point of an Art 50 style arrangement is to provide certainty to all parties, rather than leaving everything unclear?
I notice that some people are comparing Scottish independence to regions and cities in England. Totally false equivalence Scotland is country. Yes, there’s got to be certain criteria to granting independence or an automatic referendum. They would be in my opinion the following : 1. Consistent support for a political party and or movement over a period of time.
2. If denied on a Consistent basis they should be able to take that government to a higher authority eg UN.
In all that’s said and done there has to be a way out as there is way in life itself.
I don’t see how an Article 50 can be created. However I don’t think the British Government should attempt to hold an unwilling member of the union captive. If Scotland wants to leave the union then they should be allowed to hold a referendum to determine public opinion on the issue. Resisting such moves will only strengthen pro independence feelings.
An amicable divorce is far preferable to a bitterly contested one. Arguing that the issue was settled for a generation in 2014 ignores how Brexit significantly changed the Scottish independence argument.
A good article, comparing the situation for NI, Scotland and Wales. And, in my opinion, the answer is a simple yes. Politicians in London have repeatedly changed the rules about independence for the constituent parts over the years. Not acceptable
So there’s technically no mechanism to leave the uk without westminster consent? Hardly democratic if your bigger neighbour who doesn’t want to let you go, can veto the only way a nation can choose.
It is important to understand the purpose and origin of the clauses that you refer to as ‘Northern Ireland’s Article 50’.
They go back to the 1913 crisis over Home Rule. The fons et origo is Section 3.1 of the Government of Ireland Act 1920.
The Empire had fought a long war in South Africa with the Boers – the long-standing ethnic policy of the British in South Africa had lead the Boers to migrate north and establish new Republics which the Empire went after. After the painful defeat-in-victory a peace (reflecting the shared conspiracy of white against black of course) was established with the Boers converting SA back to substantially a Afrikaans ethno-state in return for returning to Empire.
The Protestants had fears of being forced out into an Irish dominion under the heel of their ethnic enemy in the name of the greater good of Empire.
Section 3.1 is their guarantee that this won’t happen.
After the Republic finally split with Empire in 1948, Section 3.1 of the Ireland Act transmutes into Section 1.2 of the Ireland Act 1949 which states that there will be no change in status without the assent of the Parliament of the North.
The purpose of this, of course, is not to guarantee NI the right to leave, but to reassure the Protestant (then) majority that it won’t be forced out – the Brits won’t make Boers out of the Catholic/Irish in Ireland.
When the first Direct Rule Bill is drafted (in the autumn of 1968 in anticipation of the Stormont General Election of February 1969) the problem arises. If Stormont is no longer the guarantor of NI remaining in the Union (because it has been prorogued) then what is?
After much discussion the guarantor switched to a popular vote. This guarantor has remained, in the 1972 Temporary Provisions Act that brought in direct rule, through the Sunningdale Process, the 1983 rolling Assembly, the Anglo-Irish agreement in 1987, on and on to the GFA.
The fear of the Brits chucking the northern Protestants under the bus is and was a genuine one. As late as the week Heath prorogued Stormont in 1972, his Foreign Secretary (and former PM) Douglas-Home wrote to him saying that the Irish were ungovernable and in his opinion the strategic goal of the UK should be Irish Unity.
Labour, of course, only started organising in NI in the last 20 years, leaving the whole island to Irish Labour and the legacy of Connolly, blessèd martyr of 1916.
In the current situation ‘Northern Ireland’s Article 50’ is still somewhat of a dead duck. Sinn Féin simply don’t recognise the House of Commons and don’t send elected members there. They don’t consider themselves bound by it at all. It remains a guarantee of Union to the Unionist population – now being eroded by demographics and the defection of young people from its tribal identities.
The situation in Scotland is of course different. We in the SNP are only half-Irish – we recognise the House of Commons and don’t recognise the Lords. Any attempt to impose an ‘Article 50’ on us without the consent of the people of Scotland would not be acceptable to us.
It would be seen as another ‘Cunningham Amendment’ the amendment that lead a pro-Home Rule victory in the 1979 Referendum to fall because it didn’t make an arbitrary quota of the entire electorate – a hurdle that almost no post-War UK government could have passed.
Gordon, thank you, all very interesting.
It begs the question of whether you think there should be any limitations on Holyrood holding an independence referendum, or the frequency of such referenda?
Well as it says I am a member of the SNP – you can guess my belief. The Scottish Parliament should be the body that decides if a referendum happens and the electorate should vote. The electoral system in Scotland is already protected by a super-majority in Section 11 of the Scotland Act 2016 – there is a case for entrenching the role of the Electoral Commission in overseeing such a referendum and ensure the question is fair.
Ref: https://www.legislation.gov.uk/ukpga/2016/11/section/11/enacted
Fair enough Gordon, but do you agree that there should be a minimum period between referenda?
I don’t think it should have a minimum time. The result should be seen as definitive but if circumstances change significantly the question can be asked again.
The 2016 referendum was at peak feeling for leaving the EU because the Leave campaign was very effective, swinging the polls in the final week. Even so they didnt expect to win, Farage saying a narrow remain win would not settle tge question. Strangely a narrow leave win did become “the will of the people” and any suggestion of a second referendum crushed as undemocratic.
Now, after experiencing the effects of leaving opinion polls show the feeling is it was a mistake. Effectively it was decided by creating an emotional feeling about freedom rather than a rational analysis of benefits.
Had the Indyref been held post Brexit I think the result would have been different. Loss of EU membership changes the economic position, given the strong Remain vote in Scotland, and so a second referendum is justified.