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.