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.