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.