A ‘paving bill’ for the Scottish independence referendum?

In his speech to the SNP conference in Perth (available here), Alex Salmond has suggested that there will be a ‘paving bill’ for the independence referendum.  The principal reason for this is the need for a separate electoral registration process to enable 16 and 17 year olds to vote, as they are would not be included in the register produced by the usual electoral registration process.  That bill, the First Minister says, will be introduced ‘in the next few weeks’.  (I pointed out some of the practical problems with producing a register of under-18s so they could vote in the referendum HERE.)

The idea of a paving bill is a shift in the proposed timetable and programme for the referendum, which has only ever talked of a single referendum bill and not a preliminary paving measure.  It’s a practical step, as otherwise work on this difficult area would have to be postponed until the main referendum bill is passed.  As that is planned to be October 2014, only 12 months before the planned referendum date, that is about when the register would need to be compiled.  Similarly, if those aged 16 and over are to be eligible to vote at the referendum, the register will need to include not only those aged 15 at the date it is compiled, but also some 14 year olds in order to catch those who qualify immediately before the day of the vote.  All this is a task of some administrative complexity – and some cost.

The independence referendum deal

The agreement publicly reached between David Cameron and Alex Salmond for the holding of a Scottish referendum on independence in 2014 marks the end of a long, and unduly protracted, process.  (There’s an account of the latter stages of that by Alan Cochrane of the Telegraph here which strikes me as well-informed if incomplete.)  The agreement itself (with the draft section 30 order at the end) is here.  The news story about it from Number 10 is here, and that from the Scottish Government is here.

The deal itself is a good and necessary one, if not particularly surprising in its content given the various leaks and rumours about it over the last few weeks.  It is also one which delivers each government its key requirements, so in that sense it is a good deal for both sides.  And, of course, it confirms that a referendum will indeed happen.

How we got here

It’s worth remembering how we got to this point.  The SNP fought the 2007 election on a manifesto commitment to hold an independence referendum if elected, and to publish a white paper on independence before then.  That commitment meant that a vote for the SNP would not necessarily be a vote for independence as such, which helped boost support for the SNP so it was able narrowly to win a plurality of votes and seats at that poll, because the election turned into one about ‘valence’ and competence not high-level ideology.  In other words, the

The section 30 order and under-18s voting in a Scottish referendum

There have been indications – leaks, rumours and even official statements – for some time now that agreement on the section 30 order to confer power on Holyrood to call a referendum on independence was near (see BBC News from the last few days here and here, or Severin Carrell in the Guardian in early September here and on Wednesday here).  Indeed, I was on BBC Radio Wales’s phone-in yesterday to talk about the supposed agreement, to find that the latest news was that Alex Salmond was keen to emphasise that a deal had not yet been done, which led to the over-reaction that the deal was off.   In any event, there is to be a meeting between Salmond and David Cameron on Monday, supposedly to sign off the section 30 order.  (The SNP seem to have won a protocol struggle here, with Salmond succeeding in putting himself on the same footing as Cameron, while more junior ministers such as Nicola Sturgeon and Michael Moore do much of the sherpa-ing for the premiers’ summit.)

The order will, apparently, permit a single-question referendum, to be held not later than 2014, and regulated by the Electoral Commission.  The single question and the regulation are points on which the UK Government (and Labour) have been determined since May 2011, and have been conceded by the Scottish Government; the date has been chosen by the SNP, but was initially resisted by the Unionist side.  However, the question of who can vote in the poll has now become an area of controversy, because of the SNP’s desire to ensure that under-18s can vote.  This was a focus of the debate around a private notice question in the Lords on Wednesday, asked by Lord Forsyth of Drumlean (and available here), and again on Radio 4’s ‘Today’ programme on Thursday morning.

‘Comment is Free’ piece on an independent Scotland’s membership of the EU

I was asked by the Guardian’s Scotland correspondent, Severin Carrell, to write something about José Manuel Barroso’s remarks about ‘seceding’ states becoming members of the European Union, which suggested that the EU would not automatically accept Scotland as an EU member as a ‘successor state’ to the current United Kingdom.  A statement by the Commission President is clearly not determinative of what might hypothetically happen in a few years’ time, let alone what view other EU institutions might take – membership issues will fall ultimately to the European Council to decide.   However, Barroso’s statement raises the stakes, raising legal issues (as the ‘state succession’ issue is only part of the legal argument about Scottish EU membership, the other part arising from EU citizenship), as well as political ones.  In it, I try to explain the two lines of legal argument, how Barroso’s statement is unhelpful to the SNP’s referendum strategy, and how it seems to reflect a rather narrow view by the Commission of what the EU is about that would seem to be at variance with other activities of the Commission.

The piece has appeared on the Guardian’s ‘Comment is Free’ site, and can be found HERE.  To judge from the volume of comments, it has excited a good deal of interest.

The rentrée in Scotland

Autumn started with a bang in Scotland: a Programme for Government and plans for new legislation, including a referendum bill; a government reshuffle, and a host of policy initiatives.

First, Alex Salmond’s reshuffle of the Scottish ministerial team.  The official press statement is here.  Key moves are Nicola Sturgeon’s move to Infrastructure, Investment and Cities, along with a constitutional brief; Alex Neil’s swap with her, from Infrastructure to Health; the departure from government of Bruce Crawford and Brian Adam; and the appointment of Humza Yousaf as Minister for External Affairs and International Development.  There has been something of a structural rejig.  The Minister for Transport and Veterans (Keith Brown) and a new post of Minister for Housing and Welfare (Margaret Burgess) are to report to Sturgeon as Infrastructure Secretary.  That may give Sturgeon more time for her constitutional brief.  Yousaf reports to Fiona Hyslop as Cabinet Secretary for Culture and External Affairs.  The new Minister for Parliamentary Business is Joe Fitzpatrick, and is both whip and government business manager, but not a Cabinet Secretary.  Burgess, Yousaf and Paul Wheelhouse (new Minister for Environment and Climate Change) all come from the 2011 intake of MSPs.

In contrast to the rather sprawling nature of the UK Coalition Cabinet (23 full members, its statutory limit, but 32 attendees – and there are also quite a few unpaid junior ministers to deal with the overall limit on the size of the government payroll), the Scottish Government are eager to point out that there are still only eight Cabinet members, and (by my reckoning) 10 non-Cabinet Ministers.  Having a single-party government helps a lot, of course, and the Scottish Government’s responsibilities are much narrower, but even so the difference is telling.

‘Scotsman’ article on Devo More and a referendum

Some time ago – before Easter, in fact – I had an article in the Scotsman about how enhanced devolution can be part of the Scottish independence referendum debate, despite the determination of the Unionist parties to have a single Yes/No question in that vote. In essence, that requires the ‘devolution plus’ option to be developed so that it is a clearly framed and worked-through scheme, with broad political support (from the Unionist parties, and more widely), before the referendum. Otherwise, a pro-Union vote will necessarily be a negative one, and that will make the pro-Union case a much harder one to make.

The article can be found here, and a webchat about the article and related issues I did with Scotsman readers can be found here.

The text of the article as I filed it is below.

‘Devo more’: on the table, even if it’s not on the referendum ballot

The debate about Scotland’s constitutional future will soon come to another punctuation point.  The UK Government’s consultation on an independence referendum will shortly result in the making of a section 30 order (something I outlined in this paper back in June 2011) , and the publication of the UK Government’s summary of responses to its consultation shows pretty clearly that London intends to limit the choice before voters to a single question, not two as sought by the Scottish Government.  The referendum will be a straight choice between the Union and independence, with the possibility of further powers afterward.

This position suits the Unionist parties, if not the SNP.  Quite a number on the Unionist side are opposed to any extension in the scope of devolved powers.  Many others support more devolution, including the Liberal Democrats and many in Labour, but are not clear what that means.  Politically, the Unionist side thinks it has a better chance of winning a Yes or No referendum than one offering several options – what one might call an ‘excluded middle’ strategy.  This is essentially a negative approach, and contrasts with the positive one of the SNP.

Powers to legislate for a Scottish independence referendum

I spent Thursday morning at a conference in Edinburgh organised by The Scotsman about a Scottish independence referendum.  There’s a report of the event from Eddie Barnes here.  As I noted earlier, the star turns were Michael Moore MP, Secretary of State for Scotland, and Bruce Crawford MSP, Cabinet Secretary for Parliamentary Business and Government Strategy, though unsurprisingly, there wasn’t much agreement between the two politicians.  Moore emphasised the need for clarity in the referendum proposition and the question; Crawford pointed out the array of commissions and groups looking at ‘more powers’, and questioned how Scottish voters could take seriously such an offer when it was so unclear.  One of the few points on which they did agree was to applaud the choice of Edinburgh as home for the new ‘Green Investment Bank’ (and see the discussions by David Maddox here and here of the politics behind that decision).There were, however, two points on which Crawford seemed to make significant statements.

The first concerned regulation of the referendum. The Scottish Government now appears to accept that the Electoral Commission should not just regulate the conduct of the referendum campaign including donations (which it accepts in its referendum consultation), but also discharge its usual function of advising on the ‘intelligibility’ of the question – which involves extensive testing of its wording with focus groups to eliminate possible sources of misunderstanding.  When it published its consultation paper  it limited this part of the Commission’s role, saying that its proposed ballot paper had been designed to comply with Electoral Commission guidelines, and that it would take advice from the Commission (and others) about the question – but did not embrace the statutory role in this that the Commission would have under the Political Parties, Elections and Referendums Act 2000. It’s not clear to me if the Scottish Government have agreed that they will be bound by the Commission’s advice, but agreement on the Commission undertaking question-testing addresses many concerns from opponents of independence about the ‘fairness’ of a referendum.

The currency of an independent Scotland: just how ‘independent’ would an independent Scotland be?

Alex Salmond’s Hugo Young lecture in London on Tuesday night was widely trailed, but doesn’t seem to have been very extensively reported after it was actually given.  The trails gave a misleading impression (at least to me) that this was going to be pushing a Devo Max scenario rather than independence.  What the audience actually got was a forceful argument for independence, for economic reasons more than anything else.  Independence would, we were told, give Scotland the chance to shape the economic environment to boost the Scottish economy, and that of its neighbours.  We were also told how closely connected to, and supportive of, England, an independent Scotland would be.  Little of this was very new – it’s been a common theme in SNP speeches, particularly Salmond’s, and Scottish Government documents for some time.

One of the few points that did seem new was Salmond’s position on an independent Scotland’s monetary policy.  He said Scotland would intend to keep the pound sterling and remain part of the ‘sterling area’, through a currency union if possible, through simply adopting the pound sterling if not.  (I briefly canvassed the currency options for Scotland in a short piece for the Scotsman here.)  Salmond pointed out that the Scottish economy resembles that of the UK so closely that this would cause none of the problems of different economic structures or cycles that have underpinned the Euro’s difficulties.  (He’s quite right about this.  Ironically, in most respects, Scotland is the part of the UK that is closest to the UK statistical average.  Wales, Northern Ireland and the regions of England diverge more from the UK mean more than Scotland in almost every respect, other than health.)  George Osborne has said that an independent Scotland wouldn’t be ‘allowed’ to use the pound, though Salmond is right to point out that the UK Government can’t actually do that if Scotland chose to adopt the currency of what would be another state, other than by draconian measures that might backfire economically as well as politically and diplomatically.

If there’s a rump UK-Scotland currency union, clearly Salmond’s preferred scenario (he pushed it again at FMQs on Thursday, claiming a rump-UK Chancellor would ‘bite Scotland’s hand off’ for it to keep sterling), it’s open to agree the terms of how that works between the two parties.  Of course there’s no reason why the UK would wish to do that before a referendum, and a soon-to-be-rump-UK Government might well be less inclined to be helpful to a seceding Scotland on this issue than the First Minister thinks it would.  If a currency union could be agreed, that would probably be quite effective from a Scottish point of view.  However, given the disparity in the size of the rump-UK and Scottish economies, it’s hard to see how Scotland would in fact get much of a say in monetary policy decisions driven by English concerns.  Lest anyone think these are purely technical in nature, remember extensive debates through the 1990s and 2000s about how interest rate policies were designed much more to address the working of the housing market in southern England rather than supporting manufacturing industry elsewhere.  (For a different view of how well such a British monetary union would work, there’s a letter in Tuesday’s FT from Drew Scott and Andrew Hughes-Hallett, available here.)

However, there are many reasons why Scotland ‘borrowing’ the pound sterling would be a bad idea.  It means foregoing control over a raft of the powers of a ‘normal’, independent state.  It’s also at odds with what the Scottish Government said about independence in its November 2009 white paper Your Scotland Your Voice, where they emphasised that independence would apply to monetary policy.  It means not just being subject to a predominately English monetary policy, also a sequence of related decisions – most notably, about whether and when to join the Euro.  Adopting sterling as the Scottish currency would hand these decisions back to the UK Government and the Bank of England (both part of what would be a separate state), whether they are done co-operatively through a monetary union or through its unilateral adoption by Scotland.  I raised this issue in the Question and answer session (as did Lord Myners).  Salmond’s response to this on Tuesday was to say that the key issue for Scotland was control of fiscal, not monetary policy.  In other words, the key point of independence is to secure full fiscal autonomy – not the full range of powers that have previously been canvassed as the point of independence.

A fiscally autonomous Scotland would be able to set taxes in order to spur economic growth (possibly at the expense of its southern neighbour) or pay for a different approach to public services, but wouldn’t necessarily be able to make its own decisions about matters relating to other aspects of macro-economic policy such as currency or interest rates.  While these might be appropriate choices for an independent Scotland to make, given its place in the wider world, this is not the image of independence that has discussed before now.  There’s also a question whether the means (becoming independent) match the end (fiscal autonomy).  Indeed, this version of independence increasingly looks like ‘Devo Max’ (or full devolution, as the 2009 white paper called it) – not statehood as it was understood even 20 or 30 years ago.

Whether this is a real shift in SNP policy, or just an off-the-cuff response to a tricky issue, will also become clearer in the coming months.  There will be a good deal more of this sort of thing over the next 2½ years, as the SNP become clearer about what they consider an independent Scotland would look like and do.  For all the arguments about ‘the tide of history’ supporting independence, there’s also a lot of unresolved detail about how independence might actually work.  The Scottish people (and those in the rest of the UK) need clear answers about them before the referendum happens.

UPDATE, 28 January: Perhaps prompted by this post, the Herald today has a story suggesting that the UK Government would, at a minimum, require extensive powers of oversight over an independent Scotland’s budget as a condition for agreeing to a currency union.  That’s available here.  The story is based on an ‘anonymous Whitehall source’, unsurprising given the Herald’s predilection for such stories, and comments by Professor Patrick Minford, once reputedly Mrs Thatcher’s favourite economist.  The story may be more mischief-making than anything, and it’s clearly part of the UK Government’s current strategy of demanding ‘basic answers’ about independence from the SNP.  However, it also illustrates just how far-reaching are the ramifications of the shift in the SNP’s position from their former one that an independent Scotland would take charge of its own monetary policy.

Wither the Scotland bill?

The fate of the Scotland bill has been a recurrent theme on this blog (see HERE and HERE for some examples, or use the ‘Calman Commission/Scotland bill’ category in the sidebar at the right for a comprehensive listing).  The bill will start its Lords committee stage this coming Friday, during which I understand the practice is not to propose amendments, but only to discuss the bill.  (Amendments get proposed at report stage.)  However, although the Scotland Bill Committee has reported to the Scottish Parliament, there’s no sign of the legislative consent motion being tabled in plenary.

This absence is important.  Legislative consent needs to be affirmative; it can’t be presumed by its absence.  In the absence of an LCM, Holyrood can’t even vote to reject the bill – and its progress to the statute book is as stymied as if there were a clear motion opposing the bill.  (I’ve argued earlier, HERE, that respecting the Parliament’s power to block the bill is constitutionally fundamental.)

There is plenty of scope for negotiation about the bill, despite the long list of changes identified in the Scotland Bill Committee’s report.  Many of the changes named there – the demand for full fiscal autonomy, for example – are there to be negotiated away.  Given the recent comments of Linda Fabiani, the committee’s convenor, asking for the Secretary of State to propose changes, it seems that the SNP remains keen to see the bill pass, with appropriate changes.  It equally appears that Michael Moore is unwilling to enter that sort of debate – though, given the terms on which it’s now being held, it has become something of a dutch auction.  Moore’s self-imposed deadline of ‘the end of this parliamentary session’ (meaning May, or thereabouts) for passage of the bill adds to the pressure.  The pressure is, however, mostly on him.

As an aside, it’s worth noting the rather unusual intervention of the Lord President of the Court of Session in the debate about the bill’s provisions concerning criminal appeals to the UK Supreme Court.  There’s a press statement here, from which Lord Hamilton’s ‘written representations’ can be downloaded, and a news report here.  The Lord President emphasises his statutory authority (under the Constitutional Reform Act 2005) to make those.  The substance of his representations is to side with the review group chaired by Lord McCluskey set up by the Scottish Government, that the Court of Session should be able to certify cases which go to the UK Supreme Court on human rights grounds.  (See also news coverage here.)  The alternative to this is Advocate General’s position, reflected in the Scotland bill, that such cases should continue to go automatically to the UK Supreme Court as they are ‘devolution issues’.  Such an intervention adds further weight to the calls (from many in the law in Scotland, though not the Law Society of Scotland) to amend those provisions of the Scotland bill.

The question of whether the bill still serves any purpose is a valid one.  Regardless of how far the constitutional debates have moved since the bill was first introduced into Parliament (only 14 months ago), it still serves two purposes.  The first is as valid for anyone who wants to see ‘devolution max’ happen.  What the bill proposes in terms of fiscal devolution remains revolutionary in administrative terms.  Getting HM Customs & Excise to grapple with arrangements for collecting different rates of income tax is necessary not just to make the bill’s arrangements work, but as part of creating the machinery for any further fiscal devolution in future.   It’s a vital step along the path toward a fiscally decentralised UK.

Second, it’s clear that the people of Scotland want something more than devolution as enacted in 1998, and indeed more than the bill provides.  Heading into a referendum, the worst position for unionists to be in would be to argue that devolution can only mean what was enacted in 1998 and cannot change or develop.  If the bill fails to reach the statute book, that’s exactly the message that will sent to Scottish voters.  In that context, a defeat for the bill does not send the message ‘SNP oppose further powers for Scotland’, but ‘independence only meaningful alternative to status quo’.  That message will work electorally to the SNP’s benefit in the referendum, not the unionist parties’ – and of course the SNP will have no objection to letting the unionist parties score an own-goal if they wish.

UPDATE, 26 January: The list of marshalled amendments to the bill for Friday’s start of Lords committee stage as of 24 January is available here (though check here to see if this is the latest one).  There’s quite a range of amendments.  Lord Forsyth and Lord Foulkes both want  (different) referendums on the tax powers. Lord Foulkes also objects to them entirely, while Lord Forsyth is willing to devolve some smaller taxes including excise duty and air passenger duty, but on their existing basis.  (That would mean Holyrood could change the rates of tax but not what it’s charged on – so it’s a transfer of a source of revenue, but not a way of using tax as a lever to encourage or discourage particular sorts of behaviour.  And to devolve excise duty as Forsyth proposes would in fact mean establishing an internal trade barrier to the movement of alcoholic drinks, as you’d need to charge duty on the movement of alcoholic drinks across the England/Scotland border.)  Foulkes also proposes amendments to ensure the Scottish Government’s name is ‘the devolved Scottish Government’.  The Earl of Caithness wants  a referendum in Orkney and Shetland to allow them cease to be part of Scotland if there is a referendum on independence.  There’s also an independence referendum amendment, proposed by Lord Forsyth, Lord Lang and the Earl of Caithness.

Less dramatic but more practical are amendments by the Duke of Montrose to delete the clause preventing Holyrood legislating in relation to Antarctica.

Most interesting in practical terms are the amendments relating to legal provisions and the courts.  There are also some detailed amendments relating to the legal system from Lords Boyd of Duncansby and Lord Browne of Ladyton (more familiar as Colin Boyd QC, former Lord Advocate , and Des Browne, former Secretary of State for Scotland).  Theirs include deleting clause 7, allowing referral of particular clauses of bills to the UK Supreme Court (a good amendment to address a bad clause).  There are amendments from both Lord Wallace and Lord McCluskey to give effect to their different position about human rights-based appeals to the Supreme Court, and the question of certification.

Lords Committee stage (and report stage) are going to be messy, protracted affairs.  This just reinforces the point I made above – that time pressure to complete it progress through WEstminster, as well to secure Holyrood’s legislative consent, means that this bill is in fact very likely just to die.  The only way to save it will be for the Scotland Office to remove Michael Moore’s self-imposed block on carrying it over to the next session.

FURTHER UPDATE, 27 January: Some further supplementary amendments can be found here.  The most notable is Lord Foulkes’s probing amendment concerning fiscal autonomy.

Scottish independence referendum: the UK Government’s démarche

The excitement over the weekend about ‘UK intervention’ in the arguments about a Scottish referendum has now led to some sort of conclusion.  On Tuesday we had a ministerial statement from Michael Moore stipulating how important it is that a referendum be ‘legal, fair and decisive’ (available here).  We also had a consultation paper setting out how the UK Government intends that be achieved (available here).  The consultation exercise closes on 9 March 2012.  The paper includes a sample Section 30 order, which would be the means by which the UK Government would confer power on Holyrood to hold the referendum.  In doing so, it sets out some ground rules.  There’s been a prompt response from the Scottish Government, with threatening noises about their ‘authority’ to call a referendum, a declaration that the referendum will be in autumn 2014, and apparently Scottish Cabinet agreement on a paper to be published probably next week.

I have been advocating a Section 30 order for some time, so am glad to see that this has now been adopted.  It has, of course, been under discussion for a while, though within each government rather than between them.  It is the best way to put the power to hold a referendum in the hands of the Parliament with a mandate to hold one.  It addresses a fundamental problem about a referendum – that the Parliament with a mandate to hold one doesn’t, in fact, have the powers to do.  The Scottish Parliament simply can’t, lawfully, call the referendum the SNP (and many in UK Government, including David Cameron) want.

A Section 30 order needs approval from both Houses of the UK Parliament as well as the Scottish Parliament, but like all secondary legislation can’t be amended once it is tabled.  It must simply be approved, or not.  Because it needs Holyrood’s consent, an unfair attempt to ‘interfere’ in a Scottish referendum is simply impossible.  If the Scottish Parliament wishes to reject such an interference, it can do so – though the SNP will then have to deal with the consequences of that rejection for the referendum they have committed to hold.

It would be possible to frame a Section 30 order so that it would materially affect how the Scottish Government proceeds.  It’s hard to see how what’s now proposed does so.  It would give Holyrood clear powers to hold a single-option, single-question referendum, held by a date to be stipulated but not yet decided, regulated by the Electoral Commission, and using the ordinary electoral roll for Holyrood elections.   This does not accord with what the Scottish Government has suggested, but one has to ask how fundamental the differences are.  Does the SNP think that it’s fundamental to such a referendum that it alone be able to frame the question, or that 16- and 17-year olds be able to vote?   The issue of date has been a major point of friction, but Alex Salmond’s announcement on Tuesday that it would be in the autumn of 2014 is at least a step toward resolves that issue.  Similarly, the Scottish Government has now agreed on their being only one question, not two. As important as the date itself is knowing the date – that way, the campaign starts to have a shape, and it becomes clear when the ‘uncertainty’ caused by a looming referendum will end.  This whole palaver would probably not have arisen, and certainly would have had much less steam, if the Scottish Government had made the statements about date and a single question sooner.

The discussions about a referendum date, the number of options or questions, or who would be eligible to vote have all served to keep debate running, but could have been disposed of much more easily had the Scottish Government wished.

The story of how this situation developed deserves to be written up more fully.  The whole thing first emerged in public on Sunday evening in a rather confusing and garbled report from Patrick Wintour of the Guardian (now in a less garbled form here).  The story of subsequent events is partly told in Guardian articles by Nicholas Watt (here) and Severin Carrell (here); my information is that this is only part of the story.  There appears to have been a deliberate attempt by David Mundell, Scotland Office junior minister, to set up the aggressive use of a Section 30 order to control the terms of a referendum. This involved direct engagement with a number of Labour MPs as well as Conservatives, but by-passing his Coalition colleagues.  George Osborne’s role has emerged later, but he has been expressing concern about the effect of ‘constitutional uncertainty’ on the Scottish economy for some time.  The Lib Dems were largely marginalised in this process – and the Labour front bench was blindsided.  The idea of an 18-month ‘sunset’ clause (more accurately, window during which the referendum could be held) appears to have been a Conservative idea not supported by the Lib Dems, hence its being kicked out during the finalising of the consultation paper.  It’s one of several points in which the order could have been used to set out terms of the referendum that few in Scotland would think fair.

The difficult point for the UK Government has always been that a section 30 order needs to be attractive enough to ensure it has SNP support at Holyrood, but nonetheless does not simply let the SNP shape the whole referendum to suit itself.  The Lib Dems seem to have understood that an order needed to be essentially fair to secure that approval – the Conservatives (and some in Labour) to have believed it could be used as a nat-bashing exercise. In reality, the latter approach would not only ensure that the order did not pass, but also would give the SNP the opportunity to blame the UK Government for its failure.  The only way for an order to get through would be by enabling the SNP to have more or less the referendum it wants.  This round of the game can be won – and can only be won – by playing it straight.

Press suggestions that the SNP may now refuse to endorse the Section 30 order are intriguing.  The problem the SNP have to grapple with is the limited powers of the Scottish Parliament.  The UK Government’s legal advice is that Holyrood has no power to legislate for a referendum touching on independence.  I don’t agree with that view (I think a referendum authorising the Scottish Government to enter into independence negotiations would be within Holyrood’s competence – but not one purporting to give a mandate for independence).  Legal opinions, of course, vary; some, such as Adam Tomkins, think there’s no power at all.  The Scottish Government’s view appears to be that the Parliament’s powers in relation to itself are such that it could have a referendum about extending those powers – that’s why it framed the question it proposed in February 2010 in the way it did.  They’ve also used a good deal of bullying rhetoric to claim powers that few lawyers (even ones of nationalist inclination) outside the Scottish Government believe they have. Even then, the best the Scottish Government could do resulted in a convoluted question which was hard to understand, and which would be unlikely to survive scrutiny by the Electoral Commission. (That’s why the paper also proposed using an ad hoc commission, not the Electoral Commission, to regulate it.)  All this would at best be right at the margin of devolved powers.  It would almost inevitably be subject to challenge in the courts (by a private party if not the UK Government), and would very probably be held ultra vires.

That would not, politically, be entirely a disaster for the SNP.  They would be able to say they had delivered on their manifesto commitment, which was to introduce a referendum bill – not to get it passed, or actually to hold a referendum.  They would also be able to blame the UK Government and the UK Supreme Court for this failure; they’d emphasise both Scottish difference from the UK, and the refusal of the UK to allow something for which there was a clear public mandate.  It’s doubtful whether that would satisfy their members, or convince the wider electorate that the SNP kept their promises, though.

If the SNP actually want a referendum as a means to secure independence, though, the considerations are rather different.  In that case, the need is to have a referendum, and that means passing a legally competent referendum bill. The Scottish Government know how strong (and how weak) their legal position is.  Even Alex Salmond acknowledges this; on BBC Radio 4’s ‘Today’ programme on Wednesday morning, he said there was ‘no problem’ about a Section 30 order.  A Section 30 order, with some strings, offers them as legally certain a route to a referendum as there can be.  Trying to block the order really means taking a punt either on winning a political battle as they lose a legal one, or counting on the Parliament’s existing legal powers as adequate for a referendum bill.  This is, in a way, a Clint Eastwood moment.  The lawyers advising the Scottish Government know just how empty their legal armoury is, so just how lucky does the SNP feel?

The political dilemma the SNP face would be greater if the UK Government had handled the issue of a Section 30 order with greater competence.  As it is, the initial reports and presentation have left a clear impression that this is an exercise designed to undermine Scottish control of a referendum.  That impression may not be justified, but the failure to understand how difficult the politics of this were in Scotland is a major failing by the UK Government.  The Liberal Democrats seem to have done as good a job as possible in recovering the situation, but the best that can be said is that they’ve turned a disaster into a mere cock-up.  (Politics being the rough game it is, an achievement like that seldom gets much notice let alone reward.)  On top of that, there is also the huge gap that clearly now exists between the three unionist parties.  A cross-party effort will needed to run a pro-union referendum campaign, but this doesn’t augur well for assembling that sort of coalition.  Labour’s apparent determination to avoid talking about forms of enhanced devolution, while forcing a choice between ‘separation’ and the Union’, makes that all the harder.  (I’ll return to this issue in due course.)

On balance, this is both a necessary and a fair step in the constitutional debates.  A Section 30 order is the right way to put the powers to hold a referendum in the place where they should be.  Salmond has said that he wants a referendum ‘built in Scotland, which is made in Scotland and goes through the Scottish parliament’.   The order is a means of achieving that – and probably the only way of doing so lawfully.  It may not be quite what the SNP would choose in an ideal world, but it’s very largely what they want, in a workable way.  The key difference is over date, and that looks like a difference of nine months – a pretty paltry issue over which to have a first-rank crisis, especially as the UK now has a proposed referendum date from the Scottish Government.  Beyond that, there’s a difference about ‘authority’ to call a referendum, but that’s largely bluster.  The legal position is reasonably clear; the moral position is much clearer.  The idea that the Scottish Parliament has the power to cal the sort of referendum the  SNP want can be no more than a mirage.   Privately, the Scottish Government appear to realise how limited their legal powers are.  The UK Government (and the Labour Party) have now conceded Holyrood’s moral or political authority to call a poll.  The differences are really rather slight.  Rejecting the order would be a very risky step indeed for the SNP, and it’s hard to see how they really gain from prolonging an argument over something that’s very close to what they want.

The likelihood has to be that after a modest amount of pushing and shoving the Section 30 order will be made.  Either the ‘constitutional crisis’ is bluster, or the SNP are more interested in prolonging a constitutional debate (or a debate about the debate), rather than holding the referendum they have said they want.  But the UK Government’s collective approach to constitutional politics has done their position a serious disservice, for which they may pay a high price.