Scottish independence referendum: response to the two consultations

I have now submitted a response to the dual consultations on a Scottish independence referendum – both the UK Government one, initiated by the white paper Scotland’s Constitutional Future Cm 8203, which closed on 9 March, and the Scottish Government’s one Your Scotland, Your Referendum which closes on 11 May.

In the submission I address three key issues: the timing of a referendum, the number of questions, and the regulation of the referendum, and relate my views to the key criteria for the referendum, set out by David Cameron but also agreed by the Scottish Government: that it must be ‘legal’, ‘clear’ and ‘decisive’.  To these, ‘fairness’ has been added.  There are particular problems with a decisive referendum, held before any independence negotiations have been held and when it is unclear what sort of a state an independent Scotland would be.

As regards timing, I argue that it would be appropriate to hold the referendum in the autumn of 2014, and that the key point in eliminating uncertainty is to establish the referendum date.

Regarding the number of questions, I note the divided nature of the constitutional debate since 2007, and the absence of any consensus on what ‘Devolution Plus’ or ‘Devolution Max’ would be, or any significant campaign for them.  In the absence of such a clear position or campaign, I cannot see how a multi-choice referendum might be run – even if some form of enhanced devolution is what appears to have the support of a plurality if not majority of Scottish voters.  (See my presentation from today’s Constitution Unit seminar, HERE, for more detail.)

When it comes to the regulation of the referendum, I argue that this role – including advice about the intelligibility of the question – needs to be undertaken by the Electoral Commission.  This is necessary to ensure that the referendum is seen to be ‘fair’ more than anything.

I also raise the question of what, in the event of a Yes vote in a referendum, the position of the Scottish Government would be.  Logically, the Scottish Government should be the party to negotiate terms of independence for Scotland after such a vote, and to make the necessary preparations for independence.  However, it has no legal powers to do so under the Scotland Act 1998, nor does the Scottish Parliament have power to enable it to do so.  Further powers would need to be conferred on the Scottish Government (and perhaps also the Parliament) to enable that to happen.

My submission can be found HERE.



Filed under Referendums, Scotland, Scottish independence, Westminster

4 responses to “Scottish independence referendum: response to the two consultations

  1. Dave

    Here we go again, seemingly trapped in an unionist mindset.

    If the Scots endorse independence in the referendum, the Scotland Act becomes an irrelevance as of that moment.

    Would the UK government, or anyone, take the issue to court? And if they did, what could any court do about it?

    The Scottish Government would have a democratic mandate to negotiate. Would Cameron refuse to negotiate with them?

    I agree that at this point in time some of the key issues remain to be resolved – especially regarding further devolution – devo plus or max.

    If unionists are intent on preserving the union, bearing in mind that Scottish public opinion is strongly in favour of significantly greater powers for their Parliament, if not for independence, then it is incumbent on unionists to come up with firm proposals prior to the the referendum taking place.

    Cameron has indicated that further powers could follow a No vote. Such a nebulous statement can carry little weight in Scotland, bearing in mind promises made by Lord Home on behalf of the Tories before the 1979 referendum, which were subsequently broken by Thatcher.

    Failure to firm up further powers to put to the Scottish electorate in the referendum would indicate that the Westminster Government’s commitment to the Union, and to Scotland, is weak. Such an approach is more likely to lead to a Yes vote, in my opinion.

    One can debate the legal and constitutional niceties at length, but essentially they are peripheral. The undue emphasis on such matters is coming from the unionists, and their failure to realise that it is a political issue which they are failing to address.

    In 2014 the Scots will decide whether or not the Union is preserved. It is up to those who wish it to remain in being to make the case for it. Hitherto there has been little sign of them so-doing. If I were a Scot, I would draw my own conclusions from that.

    • Eric

      @Dave. You are spot on. As an educated Scot who has experienced broken promises and deceit from Westminster there is no other option but to vote ‘Yes’ this time around and to encourage as many Scottish residents to do the same.
      ‘Jam tomorrow’ doesn’t cut it anymore especially when it’s from the mouths of an elitist self serving party (Tory and Labour)

      The UK is broken. It’s a disgrace that there is such a wide gap (health, wealth, life expectancy, employment and education) between the counties or regions, without a corresponding plan in place to genuinely address the imbalance. Scotland is lucky in that it can say enough Westminster… You have screwed us for too long. Sadly Leeds, Liverpool, Manchester and others don’t have this option.

      I pray that enough Scots wake up in time to push the button in 2014. But we also have witnessed the start of the smear and scare tactics from Westminster and certain media.

  2. douglas clark

    I really do not understand why the UK is making the process so complicated. Mr Tench may be completely correct from a legal point of view, however a positive vote by the Scottish people seems to me to empower the Scottish Government – as their agents in all of this – to simply just get on with it and negotiate. What other option would either Westminster or Hollyrood actually have? Presumeably neither party could ignore the will of the people.

  3. Charles Farquhar

    There should be ONE question only and a Percentage set above 50% for a Yes.
    The Vote should be now and not when the Nats. think they can win. All to be controlled by the Electoral Commission.

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