Scotsman column on referendums and the ‘constitutional cold war’

I’ve a column in today’s Scotsman about the rather hoary question of one versus two referendums on independence, and (more usefully) what’s necessary if there’s only to be a single referendum. It appears there under the heading ‘We need ceasefire in Scots cold war’.  The column is available on the Scotsman‘s website here, and the copy as I originally submitted it (different heading and paragraphing, and with a few links added) is below.

Dancing toward a referendum

The debate about a referendum on Scottish independence has got even more heated since the May election.  The First Minister does not want London to ‘meddle’ in the holding of a referendum. The UK Scottish Secretary supports two referendums, ‘personally’.  The Prime Minister does not and insists there should only be one.  This macho shouting match takes place against a backdrop of what is almost a constitutional cold war.  Since 2007, two constitutional processes – the SNP-led ‘National Conversation’ and the unionist parties’ Calman Commission – have been underway, but scarcely linked to each other.  The prospect of a referendum means that is no longer tenable.

There are some good reasons to prefer having two referendums.  It enables the Scottish Parliament to initiate the process, but the limits on Holyrood’s powers mean it can’t go so far as to endorse independence.  A second referendum also means that the final ‘determinative’ vote takes place after negotiations, when it will be clearer what sort of country an independent Scotland would be.  A great deal will depend on some difficult issues – the shares of UK debts and assets, including the North Sea oil and gas reserves, or the terms of EU membership – which will only become clear through those negotiations.   The Scottish Government’s February 2010 paper put a question that made big assumptions about the outcome of that process, so it would not have been suitable for a single referendum even if it was appropriate for the first of two.

Having two referendums has disadvantages, without doubt.  It will extend uncertainty, with possible effects on the financial markets.  SNP supporters may fear that it creates an unnecessary obstacle to independence, while many in the unionist parties are afraid it will encourage people to vote Yes the first time, but No at the second poll when it will ‘really’ count.  But it has been endorsed by some surprising figures, including (in a Canadian context) by the former Quebec premier and founder of the sovereigntist Bloc Québécois, Lucien Bouchard.

The SNP gained a powerful mandate at May’s elections.  But it was the support of about 45 per cent of the electorate, on a turn-out of 50 per cent.  In other words, fewer than a quarter of Scottish voters actually voted for the SNP, and many of them voted for it despite the party’s commitment to independence, not because of it.  There is also clearly support from a majority of Scottish voters (not just those who voted SNP) for a more extensive form of devolution than the current Scotland bill offers, and to have a say on Scotland’s future through a referendum.  There are various constitutional mechanisms to deliver that, but they will only work if both London and Edinburgh can agree some ground rules for the conduct of the debate – something they have failed to do so far.

The ‘two referendums’ approach is the easiest way of finding a route to independence through the existing constitutional framework.  It helps overcome the SNP’s fundamental problem –that the referendum they want is one that Holyrood has no power to call.  It’s not necessarily the only way to consider independence, but other approaches mean changing the existing framework.  For that to happen, though, there have to be other changes as well.

First, the constitutional cold war has to end.  It’s not enough for each side to divide the constitutional debate into their own parts and then refuse to allow the other side onto it.  This is much more an issue for the unionist parties than the SNP – while the Scottish Government submitted evidence to the Calman Commission and invited all views to be included in the National Conversation, the unionist parties refused to allow the Calman Commission to consider independence and failed to address arguments for it seriously until the Scotland Bill Committee sat during the last parliament.  What’s now needed is a process that puts all the options as clearly as possible before the Scottish people.  Unionists and nationalists must be willing to debate with each other about their visions for Scotland.

Second, there needs to be greater clarity about what sort of a country an independent Scotland might be.  The SNP needs to set out its plans more clearly, and voters need to know what the UK Government thinks of those plans, and how it sees relations between an independent Scotland and the rest of the UK.  It’s not necessary to dot every ‘I’, but for a referendum to be held before negotiations, both sides need to spell out where they stand and voters must be able to understand how realistic those aspirations are.  In effect, there should be some ‘pre-negotiations’.  Otherwise, voters are being asked to vote on an SNP wish-list, not a real proposition.

Third, the formal process has to match the political reality.  The Scottish Parliament simply does not have the power to ask a referendum question that would directly lead to independence.  However, if there is basic agreement between London and Edinburgh, it is quite easy to confer the powers on it to do that.  There is a very suitable mechanism in section 30 of the Scotland Act 1998, which requires orders altering the scope of ‘reserved matters’ to be approved by both Houses of Parliament at Westminster and the Scottish Parliament.  A section 30 order could give Holyrood the power to call a referendum on a ‘real’ question, not a ‘should there be independence negotiations?’ one.  This could also be used to ensure that the question is a clear and impartial one, and perhaps provide for the regulation of the referendum.  (The Scottish Government proposed an ad hoc commission with no role in reviewing the question.  The Electoral Commission would have no role, and Westminster legislation would be needed to give it one.  But the Electoral Commission did not come well out of either the AV referendum, or the March one on legislative powers in Wales.)

Deciding those ground rules also means deciding how many questions there would be.  It may be a bitter pill for the SNP to swallow, but a single referendum should not put three options before the voters.  The referendum must produce a clear outcome, and a multi-option or multi-question ‘preferendum’ would be very unlikely to yield a majority for any option, least of all independence.  Even if one option has a clear lead, that will not be enough to ensure that there’s wide acceptance (in England and other parts of the UK, as well as by unionists in Scotland) that the Scottish people have chosen independence.  The effect of a referendum is not just to establish what the public think , but to demonstrate it.  A mandate from a multiple-choice referendum may be a powerful tool for negotiations with the UK Government, but it could not be the basis for an independent state.  A multiple-choice referendum is really implicit acceptance of the need for two referendums.

All this means calling a halt to much of the party-political tactical manoeuvring that has gone on.  While the unionist parties have on the whole been somewhat worse at this than the SNP, the Nationalists are far from blameless either.  Campaigns by Alex Salmond to attack any questioning of the Scottish Parliament’s right to hold a referendum do not help, nor do attempts to undermine the standing of the UK Supreme Court if it has to adjudicate on the lawfulness of a referendum bill.

This sort of constitutional politics comes awkwardly to British politicians, and it needs careful choreography and a delicacy of touch.  At the moment, it’s more like watching the elephants trying to dance.  Perhaps it’s time to recognise that what the wider public audience needs is different to what they’ve been getting so far.  After the punk-rock pogo-ing, now it’s time for some ballet lessons.

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13 Comments

Filed under Calman Commission/Scotland bill, Conservatives, Labour, Lib Dems, Referendums, Scotland, SNP

13 responses to “Scotsman column on referendums and the ‘constitutional cold war’

  1. Siôn Jones

    Instead of a multiple choice preferendum, couldn’t they hold two referenda on the same day? One for full independence, and one on fiscal autonimy?

  2. John Maciver

    There is absolutely no legal basis for ‘two referendums’. Scots constitutional law is clear – the people are sovereign, and their properly expressed decision legally valid and binding regardless of the terms of the Scotland Act or any other act of the Westminster Parliament.

    I am yet to hear any of the proponents of the 2-referendum position explain their legal position with reference to proper Scots legal authorities – presumably because they are unable to do so?

    • I wonder if Mr MacIver could point to any legal authority for this proposition that “Scots constitutional law is clear – the people are sovereign, and their properly expressed decision legally valid and binding”?

      The Scottish parliament is a body that was not born free. It is resticted as to what it can do. That restriction applies to the types of questions it can ask in a referendum. Given that Holyrood must act within its powers how would Mr MacIver propose to ask a question that can “properly” express a decision?

  3. John Maciver

    MacCormack -v- Lord Advocate (1953 SC 396) and the antecedent authorities discussed therein, I suppose.

    As regards international law, Article 1 of both the ICCPR and the ICESCR.

    If one accepts that sovereignty lies with the people, not with Parliament (per Lord Cooper in MacCormick), then the competency or otherwise of the Scottish parliament is an irrelevance. The Scotland Act, as a Westminster Act of Parliament, did not, and (I’d say) cannot, change this constitutional fundamental.

    In order to assert that the result of a properly held referendum isn’t valid and binding, it seems to me that you’d have to depart from the international law regarding the right of peoples to self-determination.

    I have no issue with people suggesting that we have two referendums – I just have an problem with it being dressed up as a legal issue when, in fact, it’s actually a political stance. It’s much more akin to the imposition on the 40% rule in the 1979 referendum. I think it’s instructive that those constitutional lawyers proposing 2 referendums are (typically) not qualified in this jurisdiction and, to my mind, are erroneously applying English constitutional law principles to the debate.

    I think the only legal debate to be had is around ensuring that the question asked is sufficiently clear, that the referendum itself is free and fair etc.

    Having said that, I think it’s be very interesting to see a full Scots law debate on the matter. After all, it is probably the highest profile Scots law debate out there. I claim no particular/professional expertise on this area of law, incidentally – it’s just a matter of personal interest.

  4. Alex Buchan

    Two referendums seems to threaten to bring Northern Irish politics to Scotland. It doesn’t take much imagination to envisage a situation where during the negotiations both sides would play to the gallery of Scottish public opinion. With Whitehall determined to present as bleak a picture for Scotland as possible, what incentive would there be for the Scottish Government not to break off negotiations and just pocket their yes vote and engage in political agitation. In the period of uncertainty two votes would involve one could well imagine mischief with calls in Westminster for Shetland to be given a special status inside the union etc and agitation for the English to have separate representation to ensure that English interests are safeguarded. Politically it would be a total dogs breakfast, but I would still support it because it makes an initial yes vote more likely.

  5. Angus McLellan

    The disadvantages of a two referendum approach seem to outweight any possible benefit.

    First, how would a second referendum work? It can not be a straight yes-no question for there is then no way to signify dissatisfaction with the results of the negotiations. A referendum which does not provide an unambiguous answer is of no value.

    If the first question remained unaddressed there would be a second and more serious problem. Alex Buchan nearly put his finger on it. The UK government, which we can safely assume will be run by parties who support the continuation of the Union, will have a strong incentive to do all in its power to produce an unsatisfactory outcome to negotiations knowing that this will increase the likelihood of a no vote in the second referendum. Given than negotiations will be difficult enough if pursued in good faith, the introduction of a factor which all but guarantees that good faith will be lacking is undesirable.

    Whatever the concerns which may be raised by a single referendum on independence, it asks a simple question which produces a simple answer. Since the answer is final, negotiations would – assuming reasonable and responsible negotiators on either side – be undertaken with a view to reaching an equitable settlement since a fleeting advantage, for example in the division of debts or assets, is of much less value to either party than the continuation of good relations.

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