Michael Moore on independence referendums and the Scotland bill

Michael Moore made a statement on Monday with two important constitutional points.  There’s a report of it from BBC News here.  First, he confirmed that the UK Government considers that two referendums would be necessary for Scotland to become independent, as Holyrood doesn’t have the powers to call a determinative one.   At most, it can call an ‘advisory’ one.  This has provoked fairly predictable denunciations from the First Minister.  The Secretary of State is right here constitutionally speaking, however difficult that may be in political terms.  (I’ll have more to say about this in a few days.)

The second is a piece of folly, however.  It’s his statement (reported in a single line in the BBC News story) he doesn’t propose to amend the Scotland bill as requested by the Scottish Government (though just what amendments it wants to see isn’t wholly clear).  This is quite the opposite of what I recommended HERE, and is absurd, both constitutionally and politically.

Politically, it means that Moore is missing a chance to set out a position for the Unionist side in any independence referendum.  That position can’t be produced at the last minute, like a rabbit from a hat, but needs careful framing and development over an extended period.  (The Yes vote in Wales in March was in part the result of such careful framing over many years, by Tomorrow’s Wales, the All Wales Convention, and others; see HERE for a discussion touching on that.)   A package of amendments to the Scotland bill could be, or could have been, used as the first step down that path.  It seems that Moore doesn’t want to go in that direction at all.

Constitutionally, the position is worse.  A bill that isn’t so amended will fail to secure the legislative consent of the Scottish Parliament.  (See HERE for an earlier discussion of this, which I don’t think went down too well in Whitehall).  Either the bill therefore goes nowhere and its continued consideration is largely a waste of Parliamentary time, since it can’t get Holyrood’s consent, or the Secretary of State intends that the bill be passed by Westminster and brought into force despite Holyrood’s refusal.  That means tearing up the Sewel convention – and the constitutional underpinning of a system of devolved government.  (There are earlier discussions of the importance of that HERE and HERE.)  One couldn’t calculate a move more likely to play into the hands of those wanting to see Scotland become a separate state.

Beyond the miscalculation of an individual minister, there’s an institutional problem here.  The Sewel convention is about relations between legislatures, not governments.  However, all the discussions about amending the bill have taken place between governments.  What might help clarify the issue now would be for the Scottish Parliament to pass a motion setting out the amendments it wishes to see, in order that it would be able to give its legislative consent to the bill.  That at least will signal very clearly the position of the Scottish Parliament, and enable the UK Government and Parliament to form a more informed (and, one would hope, better considered) view.  A wise course for the Secretary of State would have been to insist on this himself.  His failure to do so passes the initiative to Holyrood instead.

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11 Comments

Filed under Calman Commission/Scotland bill, Intergovernmental relations, Lib Dems, Scotland, SNP, Westminster

11 responses to “Michael Moore on independence referendums and the Scotland bill

  1. James Cohen

    Hi I just heard you contribution in Good Morning Scotland. I believe only ONE referendum is required. The will of the people in Scotland is sovereign, regardless of the legal status. Michael Moore has no case and fundamentally does not understand Scots constitutional law.

  2. There are no rules governing the conduct of referendums, there has never been a ‘determinative’ referendum in the UK and it’s unlikely that there will be one in the forseeable future (that would undermine the supposed sovereignty of the Palace of Westminster). The only place I can think of that conducts plebiscites which are binding (other than elections) is Switzerland.

    No other nation has carried two votes on its back as it marched toward statehood, the idea is daft no matter what the case made for it – just as it was daft when some Labour MPs proposed the same for the devolution referendum in 1997. It makes the proposer look like a simpleton in the face of an expression of public opinion. If Montenegro and East Timor could do it with one vote each why must the Scots be forced to keep going back to the ballot box to keep alive the hopes of some career politicians that it’s not all over?

    Wales voted yes because the people were ready to move on, not because some campaigners framed the question the right way. Constitutional change isn’t science, it’s emotion, the collective emotion of the people, not something you can frame and predetermine.

  3. Reg Dunn

    Alan

    If you will have something more to say about “two referendums” in the next few days, I wonder if you could take into account a political problem that I think occurs. What happens if the first referendum is a ‘yes’, but the second is a ‘no’? The logical answer, it seems to me, is that Scotland wants independence in principle, but not on the terms offered. There are two problems with this:

    a) it gives an incentive to the UK to play hardball in the negotiations, and drive a bargain so absurdly hard that the Scottish electorate would never agree to it
    b) doesn’t a ‘yes’ followed by a ‘no’ imply that the Scottish electorate would like a different independence deal, rather than no deal – and that therefore the Scottish Government would have an open mandate to continue to negotiate until a deal that would pass could be agreed? This begs the question: why bother with the second referendum at all? The alternative would be to insist that the second ‘no’ also negated the first ‘yes’, and Scotland would have to, as it were, start at the beginning again. I’m not sure either that, or the situation under a), are comfortable positions for unionists to be in, if they want the Union to actually work successfully.

    I understand the point that the Scottish Government’s referendum concerns a reserved matter and therefore can’t provide a constitutional-legal basis for independence, but I’m not sure that a second referendum holds as much water as the media – based on little more than the assertions of Robert Hazell – seem to believe it does.

  4. Alex Buchan

    There was a newspaper report a few weeks ago that Whitehall sources (presumably the Scotland Office) have said that if the Scottish Parliament votes down the Scotland Bill it will be allowed to fail. Moore’s latest statement seems to merely confirm what seems evident now that the UK Government has decided to play hardball. It would not being doing this unless it had a strategy and this seems to be to try to regain the initiative by backing the Scottish Government into a more confrontational position that it may have preferred. A referendum in an atmosphere of heightened tension between Edinburgh and London where the SNP can be portrayed as extremists and a new improved bill offered once the issue of Scotland’s place in the union is settled.

    Cameron seems to have plumbed for Churchillian resoluteness, rather in line with how he’s responded to Libya and other issues. Perhaps he is not treating the possibility of a yes vote in a referendum very seriously and is more concerned over where he wants to be post referendum with an eye also to English public opinion. A risky strategy no doubt, and one guaranteed to boost SNP membership, and to add to the long mythology of the struggle since WW2 for Scottish Home Rule which is starting to resemble Ireland’s.

  5. Innes Kennedy

    “…he confirmed that the UK Government considers that two referendums would be necessary for Scotland to become independent, as Holyrood doesn’t have the powers to call a determinative one. At most, it can call an ‘advisory’ one. ”

    Alan – is there not some confusion about this? According to Matt Qvortrup on this point in 2007 (in the Scotsman):

    “In the United Kingdom, all referendums are advisory…if the Scottish people did vote for independence in a referendum that met normal democratic standards, Westminster would be obliged to recognise that result.”

  6. John Maciver

    “The Secretary of State is right here constitutionally speaking”

    Er, no he isn’t. In fact, he couldn’t be more wrong.

    Like many commentators – Bogdanor, Hazell, etc., you seem to be ignoring the simple fact that the question of Scottish sovereignty and independence is a matter of Scots law. To support their position – that a Westminster referendum is a legal necessity – Michael Moore and others mistakenly/misleadingly assume that (the UK) Parliament is sovereign.

    To quote Lord Cooper in the leading case of McCormick -v- HMA:-

    “the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law”

    The Scots constitutional law position is absolutely clear and, as far as I’m aware, has never been seriously questioned – sovereignty lies with the people of Scotland. See Lord Cooper’s remarks in the same case.

    The legal position is that a properly held referendum will be legally effective whichever Parliament instructs it. More to the point, there is no legal or judicial authority – whatsoever – to support the assertion that a second referendum would be required. That’s simply a political invention, cheered on by the diehard unionist Scottish press and supported by the Anglocentric worldview of a few academic lawyers, none of whom are actually qualified in the jurisdiction whose law they’re pronouncing on!

  7. Reg Dunn

    Interesting point John MacIver – perhaps the recent SNP – supreme court shenanigans is a step down the path of normalising the existence of Scots constitutional law in Unionist eyes? (That sounds a patronising proposition, but it’s probably good politics from Salmond and MacAskill.)

    I would not bet on the UK government, locked into diehard British constitutional paradigms, having a strategy for any of this.

  8. Peter Ashby

    I’m not an SNP supporter (was briefly before their opportunist populism became obvious to me), but I am an favour of Independence in principle. I agree with Reg Dunn above that a different answer on a second referendum would solve nothing, just lead to another round of wrangling until matters get so bad someone like the EU feels compelled to step in and force mediation, not a a situation I want to live through.

    • H Scott

      “not a a situation I want to live through”

      Peter – Perhaps that is the point, deter voters with the prospect of interminible , mutually hostile wrangling?

  9. Alex Buchan

    Gerry Hassan’s latest blog post shows convincingly that no negotiations in good will could take place if there was a second referendum because there would be no incentive for either side to make concessions. The true nature of the British Government’s espousal of the totally unprecedented principle of double lock to get out of the union is becoming clearer.

  10. Pingback: Amending the Scotland bill: the Scotland Office announces its plans « Devolution Matters

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