Michael Moore’s statement about the need for there to be two referendums for Scotland to become independent – in effect, the argument made in the Constitution Unit’s 2004 book Scottish Independence: A Practical Guide – has caused quite a stir. (I was on BBC Radio Scotland twice yesterday to talk about it – with Gerry Hassan on Good Morning Scotland, and with Ewan Crawford on Scotland At Ten.) I shall have more to say about this in due course, but it’s interesting to see the row that Moore’s comments have caused, not just from the SNP (which is predictable enough), but also from Conservatives. David Maddox has had interesting pieces about this in the Scotsman, on Tuesday here and today here.
This is a case where many seem to have an interest in inventing constitutional rules to suit their own convenience. Gerry Hassan seems particularly prone to that. The fact that the UK’s constitution is flexible doesn’t make it infinitely elastic. Those Conservatives who favour a single referendum need to take on board one key point. The Scottish Parliament’s present powers do not allow it to call the sort of single decisive referendum they favour.
If Conservatives (or others) want there to be a single referendum, on a question that doesn’t dance about the issues but directly addresses them, there are three options. One is for Westminster to call it. The second is to extend the powers of the Scottish Parliament to do so. The third is to try to cheat, and allow a question that’s actually beyond Holyrood’s powers to go through. The last is highly unlikely to work, even if both governments and the Scottish Parliament are willing to connive at it – the odds have to be very high that a third party will refer it to the courts, which will hold it to be unlawful. So something has got to give for the Conservative proposal to work, and that means the current stone-walling will have to be lifted at least a little bit. Michael Moore’s position does have the merit of working within the existing legal framework.