A constitutional crisis over a Scottish referendum?

Just how serious is the new stand-off between Westminster and Holyrood over a referendum on Scottish independence? I take the view that it’s largely shadow boxing. The two governments will do a deal in the end, even though there’s quite a way to go before it’s clinched. Many believe Cameron boobed badly yesterday by trying to dictate terms.The Guardian  covered the other view  which holds that it was a bold wheeze from the Chancellor George Osborne.  Salmond picked up the gauntlet and insisted on his ability to set a 2014 referendum date regardless.  But note that he still hasn’t rejected the Westminster Coalition’s offer of a “Section 30” order under the Westminster Scotland Act allowing him to hold a binding referendum even though Salmond still maintains that the Scottish Parliament has the power on its own to hold a consultative referendum and that would be enough. Westminster’s legal advice (surprisingly?) says not. Who’s right and does it matter?   In Devolution Matters Alan Trench has some trenchant (sorry!) points to make.

 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.

 

Alan goes on to give a view on Westminster’s legal advice.

 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)..

If the SNP actually want a referendum as a means to secure independence… 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?

That’s a big question. From Salmond’s point of view it would clearly be better to avoid years of legal wrangling which might in the short term boost his position but in the medium term might worry or weary undecided Scottish opinion. The one thing he won’t do is to do a Sinn Fein 1918 and make a sort of UDI. Scottish nationalism is cut from a different cloth   It seems as ever to boil down to the questions for a referendum.  The SNP in fact have been wriggling on the question of including a third question on Devo Max. This is one sign that Salmond is less sure of his ground that it might seem and is willing to talk terms with Westminster. If the pro- Union forces had any sense, they should seize the initiative and make a version of Devo Max their own and take the argument to the SNP – on or off the ballot paper.

I see also that the former Labour Chancellor and Edinburgh MP Alistair Darling calls for an all-party and no party unionist campaign and is being mooted as its leader.   They could do worse.

 

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  • 241934 john brennan

    It is not just Cameron throwing a spanner into the referendum on Scottish independence. There does need to be some Westminster legislation. Below is the effect of the Scottish Labour Party amendments to the previous (1979) legislation.

    The figures below show how the Scottish 1979 independence referendum was lost. In addition to securing a simple majority of those actually voting – the yes vote had to be indorsed by at least 40 % of the total electorate, as well as exceeding 50% of those bothered to vote. Non voters accounted for 36% of the total electorate

    Although the Yes side won, Labour decided to implement George Cunningham’s 40 % rule and refused to endorse the Scotland Act. The Callaghan government, and in particular Labour MPs such as Tam Dalyell and George Cunningham preferred to risk losing a general election rather than giving Scotland the assembly which it had voted for.

    Turnout 64%
    Yes vote 52% of turnout
    No vote 48% of turnout
    Yes vote 33% of electorate
    No vote 31 % of electorate
    Total voters on register of 3,747,112
    Total voting yes1,230,937
    Total voting no 1,153,502

  • grandimarkey

    I can’t imagine there will be much of a constitutional crisis.

    Salmond has said the SNP will hold their referendum in 2014. If independence is voted for then there will be much legal wrangling about who gets what etc but I doubt anyone would be silly enough to not recognise or move the goalposts with the result. Accept it and move on.

    Incidentally, would the United Kingdom become the Former United Kingdom? Because I don’t think that abbreviates quite as well….

  • 241934 john brennan @ 1:06 pm quite properly drags in the poison of the Cunningham amendment. It’s always blamed on Labour — but in fact Callaghan never had the parliamentary majority to deliver. Cunningham, of course, was rabid anti-devolution, went renegade, sprang his wrecking amendment (in cahoots with the Tories) at the last possible moment, and — after the General Election — happily went off to join the SDP. All credit to the SNP, Plaid and the handful of lefty Labour who honourably voted against the substantive motion.

    As I have suggested on parallel threads, the issue should not be a mere consideration of the referendum. We all know that’s coming. We all now when (as close to the anniversary of Bannockburn as Wee Eck can engineer). It’s only the wording that’s to be clarified. Whether or not it can be binding, or only advisory would keep constitutional lawyers in prime single malts and second homes for the next decade — royal assent, anyone?

    First, it feels as if the “play-book” of 1912-14, over the Home Rule Bill, has been brought out of the files, the dust huffed off, and subtly updated.

    Second, why is Cameron pushing this one now? My immediate assumption was that last week’s effort (“Let’s be nasty to the nurses”) had to be glossed over quickly. It’s also possible that [a] the guilt/gilt is off the gingerbread of the non-“veto”, and the right has to be dragooned into line, or [b] the opinion poll ratings are worrying (down half-a-dozen points since pre-Christmas, or [c] the media assault on Miliband isn’t getting quite the focus group ratings expected.

    In the medium term, did nobody discuss with those who pull Cameron’s strings that there are Scottish local elections due on 3rd May? On present form, the SNP have just been awarded a walk-over.