On the prospect of a referendum on Scottish independence: initial thoughts

The first is that nothing has happened so far in the debate provoked by Cameron’s high-risk, and previously occluded, plan to play Call My Bluff with the Nationalists in Scotland to disabuse me of my view of referendums. I would suggest that the reason the arguments over the timing and the form of question are already overheated is because the actors involved understand perfectly well that plebiscites are exercises in manufacturing consent for projects that have already been chosen by political elites.

The second is that I’m in a minority in arguing that there is a certain logic to the position of the Westminster government. The situation as it stood was allowing the agenda to be set by Salmond & Co alone. “We the Scots” should decide the timing and question of a referendum, say the Nats. By “we” they mean of course the SNP who claim exclusive rights to determine when we should be asked, and what form of question – and why shouldn’t they extend the franchise if it is deemed useful to their purposes? Disagree and you’re lining up against Scotland.

However, my opinion of the Westminster attempt to seize the initiative doesn’t differ much from what numerous other commentators have been saying. For one, it’s too late. The unionist parties have resisted a referendum for too long to now say with any conviction that not only do we favour it but we’re now in more of a hurry than you.

Nor do the arguments for the urgency make much sense. It’ll be ‘legally-binding’ if it’s held within 18 months but merely ‘advisory’ after that? I wouldn’t know but I doubt it makes legal sense – and I’m absolutely certain it makes no political sense.

I doubt whether it makes much economic sense either, this idea that uncertainty is crippling confidence and deterring investment. I wouldn’t want to say too much about that because while the arguments both for and against independence are often couched in economic terms, the reality is the position on both sides of the argument are akin to the attitude of creationist believers to science.

And even if any of these argument did make sense, the intervention already looks unhelpful in the extreme. You can have your referendum but on our time-scale and only in a form of our choosing: so said the European Commission to the British government, arguing that continued uncertainty over British commitment to the EU was damaging economic confidence in the UK and the wider region. You wouldn’t want to push the analogy too far since Britain is not a member of the EU in the way Scotland is a member of the United Kingdom – but it helps, nevertheless, to catch a flavour of how such intervention might be interpreted north of the border.

Finally, Cameron et al need to get better advice on Scottish matters. I’ve thought, and not for the first time, that they could do worse than pay some heed to Alex Massie:

“Of course, were I David Cameron I’d accept that Salmond, bugger it, has the ball and the right to set the conditions for the game. This may be inconvenient or sub-optimal but there it is. And then I would ask just this: do you really wish to make foreigners of your English friends and relatives? I would trust the people to make their own minds up and I would do little to get in the way of that.”

Although whether referendums have much to do with trusting the people is an idea of which I’m highly sceptical.

Update: This post is perhaps looking a little out of date already given recent events. I’ll avoid commenting further except to record my feeling that if it is indeed the case that Mr Cameron’s penchant for high-stakes constitutional poker is unaccompanied by any apparent ability in this sphere, this is a matter of grave concern not only for Conservatives but to those of us who are non-Tory Unionists.

  • drc0610

    You have to admire Cameron for sheer brass neck for saying that the only way the referendum can be “fair, legal and decisive ” is for it to be run from westminister.

    Anyone with a passing knowledge of referendum in the UK will know that previous ones have been far from fair.

    Referendums are normally an excercise in getting in blocking the result you dont want as opposed to listening to what the nation actually wants.

    Still it will keep the Mail readers happy.

  • dodrade

    Alex Salmond wants to be the 21st century Robert the Bruce, but threatens to be the Scottish Ian Smith, and we all know how well UDI worked out for Rhodesia.

  • Mainland Ulsterman

    You do wonder what Cameron’s game is. He couldn’t have helped Scottish secession more if he’d tried. In international law, Scotland has the right to self-determination, which means it as a unit has the right to decide on its own constitutional future. That’s Scotland, not Scotland plus Westminster.

    If there is an arcane piece of legislation that contradicts that, fine as far as that goes – but so what? The Scots would be within their rights to ignore it. If they vote to leave the UK and start making the break practically, is anyone really saying the writ of UK law would run there? So what’s the relevance of the Westminster legislation? It’s meaningless and can be more or less ignored, surely. Westminster’s proclamations on this are no more meaningful than Belgrade’s were over Croatia or Slovenia when they seceded. You don’t have to seek consent from the old capital to secede – you just don’t.

    For Cameron to make such a play of what is ultimately a petty legalistic argument – and a pretty bogus one, ultimately – is to immediately portray unionists as against the free right of the Scots to choose their own destiny, which they actually aren’t. He’s done them a terrible disservice.

  • Pete Baker

    MU

    You’re leaping over several arguments and ignoring the politics.

    Read Michael White’s post at the Guardian. Here’s a [lengthy] snippet

    As a gut unionist who supported devolution in the 70s and 90s, I’d prefer to sustain the 305-year-old union between England and Scotland, but accept that if the Scots want to go their own way – and vote to do so in a fair referendum – then so be it.

    Their politics and ours will be re-configured, their nationalists will probably split (as the post-apartheid ANC may soon do in distant South Africa) and ours could well get a boost. But life will go on and no frontier posts will be erected at Berwick and Carlisle.

    So I flinched when listening to Whitehall officials – mostly solid Scots – briefing reporters at Westminster yesterday on the legal case for saying that Salmond and his SNP-majority Scottish parliament at Holyrood have no constitutional powers to stage a referendum.

    That power was expressly reserved to the Westminster-based UK government under the Scotland Act of 1998 – in the same way that reproductive rights were reserved because everyone knows that abortion is a highly divisive Catholic/Protestant thing in Scotland, as it barely is in England or Wales (but is on both sides of the Irish border).

    Though Cameron expressed himself in confrontational terms – as Salmond routinely does – at the weekend, catching out Lib Dem allies and Labour pro-Union politicians too, the proposals set out yesterday by the very Scottish and Lib Dem Scottish secretary, Michael Moore, are actually conciliatory.

    They offered to transfer the necessary powers to Holyrood on a temporary basis to allow it to legislate for a referendum – for the SNP to do so on its own would be open to all-but-certain legal challenge – provided the key terms were fair and the outcome decisive, ie no fiddling the franchise to let children vote or stringing it out until London is especially unpopular, and a straight yes/no ballot.

    It all seems pretty cut and dried legally though the SNP has other legal opinions: that’s what lawyers are for; they’re like taxis, you flag them down, say where you want to go, they take you there, you pay them. It seems that Mike Moore himself used to think Holyrood could do it alone too, so he’s a wriggler as well. Plenty of mileage in this to make the lawyers richer.

    Putting the legal niceties aside and the politics of it are awful. Have you consulted the SNP about this, I asked officials? Will it come as a surprise? We asked for their own proposals on how they might proceed ages ago – and we’re still waiting, was the drift of the reply.

    Not hard to fathom that out. The SNP must have calculated that by forcing London to show its hand first it could cry “interference” and incite the radio phone-in audience to fresh heights of victimhood.

    And note, in particular what Michael White says of Salmond’s wriggling

    He wriggled a bit when jousting with fellow-Scot Naughtie on Radio 4’s Today this morning. Having seized upon David Cameron’s weekend intervention on the terms of Scotland’s independence referendum (Cameron has wriggled too) as proof of high-handed Westminster intervention in Scottish affairs, he quietly backed off.

    “I am sure politicians north and south of the border are capable of coming to some agreement during the course of the year on the ground rules” for the referendum, he said.

    In other words, rather than fight each other to the doors of the supreme court – a UK body whose record on Scottish decisions Salmond has not hesitated to attack – they should negotiate a compromise on those disputed details like timing (sooner rather than later?), the franchise (should 16-year-olds vote?) and the number of options (yes? No? Devo Max?) on the ballot paper.

    That’s more sensible. As Alistair Darling warned on air today, it would be a mistake to waste all the available energy fighting over process questions when what matters are issues of substance.

  • Dewi
  • The yokel

    It all seems pretty cut and dried legally though the SNP has other legal opinions: that’s what lawyers are for; they’re like taxis, you flag them down, say where you want to go, they take you there, you pay them.
    I would just like to say the above quote about lawyers is excellent; the same could be said of so called “independent” consultants.

  • Mainland Ulsterman

    Pete,
    The role of the UK govt can only be to facilitate the Scottish people exercising their right to self-determination as they, the Scottish people, choose. Otherwise it isn’t self-determination. Cameron’s intervention by trying to dictate the timing does seem at odds with the principle.
    I’m not unaware of the politics. But some of the debate I hear is nonsense because it fails to appreciate the rights in customary international law Scotland has here. For example, in Radio 4’s Any Questions today, they debated whether people in the rest of the UK should be allowed a say. Well it’s settled as settled can be in international law that they don’t have a say – and really there is no point discussing it as if it’s a matter of uncertainty or opinion.

    Salmond can afford to be magnanimous and conciliatory – it suits him to appear more mature and statesmanlike than Cameron et al in London. He knows though his opponents in London have no leg to stand on here in terms of seeking substantive input into the terms of the referendum. And that’s as much a statement of political reality as legal reality.

  • http://www.legislation.gov.uk/ukpga/1998/46/schedule/5/paragraph/1

    1 The following aspects of the constitution are reserved matters, that is—.
    .,.
    (b)the Union of the Kingdoms of Scotland and England,.

  • Mainland Ulsterman

    States can legislate as they like, but public international law – or accepted norms of practice in matters between states if you prefer – still applies. This includes questions of state formation and independence. This is the much more relevant body of law to look at to work out what is the right thing to do. A UK statute may legislate in the area of course. But there are limits to the practical applicability of that, if Scotland insists on exercising its rights under international law. If UK legislation, for example, sought to inhibit Scotland’s right to self-determination, without Scotland’s agreement to that, it could practically be ignored by the Scots. Legislation in that area is therefore to be taken with a big pinch of salt, though it appears to have legal force.

    Looked at the other way around, if the act of parliament really was the end of the matter, then Scotland would not have the right to self-determination. But everyone accepts it does have that right.