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.

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21 Comments

Filed under Conservatives, Labour, Lib Dems, Referendums, Scotland, Scottish independence, SNP, Westminster

21 responses to “Scottish independence referendum: the UK Government’s démarche

  1. David

    Where is the SNP or Salmond on record as dismissing the multi-option referendum?

    • Nicola Sturgeon is noted as saying that the Scottish Government would accept a 2-option referendum (though not rejecting a multi-option one) in this BBC News item: http://www.bbc.co.uk/news/uk-politics-16463961. My recollection is that she was more forceful than this in a broadcast interview I heard; I think that may have been on Newsnight, but I can’t put my hands on that at this moment.

      • David

        Thanks for the reply. I suppose the fact that it might be a straight yes / no referendum doesn’t mean it automatically will be: keeping options open. Interesting conspiracy theory from Alasdair Stirling (#3).

    • Alan, it’s become very clear since then that the Scottish Government are not “accepting” a single-option question, certainly not at this stage. So it’s not true to say that the proposed Section 30 order only diverges from what the SNP want in a very minor way.

  2. Notwithstanding the SNP’s current majority, the Scottish parliament’s electoral system is heavily biased against a single party majority. For this reason, the SNP had to ensure: 1) that they hold the referendum during the term of the current parliament; and 2) that its outcome is legally binding on future Scottish parliaments. If the English legal doctrine of ‘parliamentary sovereignty’ means anything at all, it most certainly means that the UK parliament is not bound by any referendum (Section 30 order or otherwise). The critical thing is that the UK government’s current proposals will bind the Scottish parliament – present and future.

    The problem of a Unionist litigant interdicting the referendum such that the SNP cannot hold it before the next Scottish election is obvious. However, more interestingly, is the prospect of the SNP holding and winning a consultative referendum. It is hard to see (absent the UK government’s current intervention) that a future Unionist majority in the next Scottish parliament would accept the referendum result as conclusive or binding. It is not beyond the wit or imagination of the Scottish Unionists to find a way of repudiating the referendum result (most likely an argument that an election producing a Unionist majority represents a change of mind of the voters).

    Seen in this light, the SNP’s delay over timing and ossification over the question were most likely just tactics to force the UK government’s hand. It was always imperative to the SNP’s chances of securing its fundamental objective (i.e. independence not a referendum) that they didn’t allow the UK government to just sit on its hands.

    • John Davidson

      This last point seems valid. And raises a number of questions. One, how can a sovereign parliament bind itself on an internal matter? Two, how likely is it that a bill to enact Section 30 transfer will act succeed? As a yes vote would lead to the dissolution of the UK state surely MPs in effect would be asked to agree to a decision that could dissolve themselves . Three, how many MPs are likely to agree to such a proposal when they can have little influence over the outcome?

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  4. Jeff Jones

    As someone who like most people outside Scotland probably doesn’t really have a strong view one way or the other can I say how refreshing once again it is to read your objective assessment of the situation. One of the problems it seems to me is that Salmond’s victory last year has raised expectations amongst nationalists in both Scotland and in Wales.It is now common to read on nationalist blogs and from nationalist posters that independence for both Scotland and Wales is inevitable. No one seems remotely interested in the possible practical issues of any break up or even the consequences. It is automatically seen as a good thing because of the perceived ‘failure’of the UK. Throw in an attitude from some on the Left in both Scotland and Wales that Labour will never again win a UK election and the result is a feeling that there is really no need to discuss the nuts and bolts of separation . Given the really pressing economic and social problems facing all parts of the UK it could be argued that this is a distaction from the real issues. No one benefits in the long run from a standoff between Holyrood and Westminster. The SNP has moved with regard to the issue of one question and it will take some time to pass the legislation and organise any referendum. Westminster seems to want a referendum some time in 2013 with the SNP angling for the anniversary of Bannockburn. The sensible compromise would be for both governments to allow an independent body such as the Electoral Commission to set both the question and the date.

    • CW

      Firstly, I have heard noone in the SNP refer to any Bannockburn anniversary. This is a widespread assumption which might not be true.

      Secondly, the Electoral Commission would be an enormously unpopular choice amongst SNP supporters. This is quite a commonly held view. If a neutral external (i.e. non-U.K.) body can be found to supervise the referendum then that would remove any anxieties from either side.

      “Given the really pressing economic and social problems facing all parts of the UK it could be argued that this is a distaction from the real issues.” Given the constant references to Thatcher and therefore Scotland’s deindustialisation (and the widespread and often devastating social consequences of this), it seems to me to be an entirely artificial assumption that this situation is not motivated by the relationship between government and society. If Westminster or Holyrood could assure the Scottish people that they were adequate institutions to meet the democratic will of much of Scotland, then this situation would not have arisen. The principal motivating factor in this debate is the discomfort of Scotland with a government for which they did not vote. To assume that this is not because the people are concerned about the potential actions of this government on their society is to miss the point and underestimate the electorate.

  5. The Tory engineered proposal from the Coalition leaves me with two conclusions.

    Either Cameron et al are desperate, inept, politically naive and suicidal, or bordering on mad, (perm any 5 from the list)

    or

    Cameron wants rid of Scotland and is playing a blinder

    It is a consultation referendum, something that Strathclyde Regional Council did years ago in response to proposals of privatisation of Scottish Water.

    Aren’t all referenda, according to Westminster doctrine only consultative also?

  6. Freoboy

    I’m staggered by the idea that political ‘bluster’ is somehow getting in the way of the referendum. How does anyone think constitutions are made and nations seek self determination? Its all about politics and while there are many nationalists who may feel that its in the bag because we have got to this point, there are many others who recognise that the period between now and the date of the referendum will be full of argument, ‘bluster’ and conflict.

    While some would like to think that debate and argument produce too much heat and not enough light, others will respond by saying that its only in such circumstances that real choices can be clarified and real people can come to conclusions. To think otherwise is just foolish – what was it Bismarck said about laws and sausages … you don’t want to look too closely at how they are made?

    On the issue of the complexities of ‘separation’ I’m sure that this will be no easy matter but surely you don’t decide on principles by debating the complexities and details. The referendum is about those principles and if there is a yes vote then the complexities of separation or sharing WILL be sorted. Its been done before and will no doubt be done again. Saying its all very complex isn’t an argument for not doing something – its a spur to politicians to make the right arguments.

  7. I am astounded that we’re actually taking this all seriously. The SNP has repeatedly spoken of mandates, or rather the lack of the them when it concerns the government of Scotland by Westminster. When we talk constitutional change, percentage of electorates, not just votes cast should be the consideration, as it was in 1979.

    Curiously, nobody has really questioned what a proper ‘mandate’ looks like. If by mandate, the SNP means seats, then in 2010 Labour maintained an overwhelming mandate to represent Scotland at Westminster; but if you then look at the percentage of the electorate, not votes cast (since again, percentage votes cast have often been decried by minority parties such as the SNP) that voted for the parties, the overwhelming ‘mandate’ some 48% rests with the unionist parties, to the SNP’s 12.5%.

    More frighteningly for the SNP, if we look at the percentage of the Scottish electorate that voted for them in 2011, whilst they are seats-a-plenty with 45% if the votes cast, they only achieved 22% of the electorate, with 27% of the electorate voting for the the unionist parties.

    Simply put, where is the mandate to hold this referendum? It doesn’t exist, except in the mind of one little fat man, his ego and his hubris.

  8. DB

    Isn’t the likelihood that two referenda will be necessary between now and an independent Scotland (if that is where things went):

    1) the one presently being discussed, which would simply lead to negotiations between the Scottish Government and Westminster for the terms on which Scotland would become independent; and

    2) a further referendum, as to whether Scotland wanted independence on the terms offered agreed in such negotiations.

    Otherwise, the question in the referendum presently being discussed, however phrased, will be to give an open ended mandate to the Scots negotiators to agree independence on any terms?

  9. Brian. O.

    “The UK Government’s legal advice is that Holyrood has no power to legislate for a referendum touching on independence.” But the Scotland Office Consultative Document doesn’t claim that – it just blusters “The UK Government has reached this view having given careful consideration to the legal position” refusing to publish its legal advice or even provide a summary of it. Who knows what their legal advice has said? I strolgly suspect it may be quite close to your (and my) view. A Section 30 order could well be the way to resolve this situation – if it didn’t have the restrictive conditions currently impossed by Westminster. The purpose of this process should be to determine the wishes of the Scottish people – and that requires that they be given the opportunity to choose what all the polls show is the preferred option – enhanced devolution. Anything else is just undemocratic manipulation.

  10. Freoboy

    This is just plain stupid. I have to assume its a wind up.

    If the SNP doesn’t have a mandate, what does the Westminster Govt have?

    Its not their referendum, their proposals, their anything. And name calling is just pathetic.

  11. Scunnert

    The contention that the freely elected government of Scotland would be acting illegally by asking the people they represent what their aspirations are for the future is just plain silly.

  12. The Declaration on the Granting of Independence to Colonial Countries and Peoples

    that all peoples have the right to self-determination, but that this necessarily includes the right freely to determine their political status and freely to pursue their economic, social and cultural development (art. 2);

    the obligation of all States to observe the Charter of the United Nations and the Universal Declaration of Human Rights as to equality and non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity (art. 7).

    IMO this bluff and bluster about legality is total nonsense and Westminster knows that and is trying to get involved in something that is nothing to do with them.

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