"I have always been reasonably relaxed about the idea of a referendum on independence. After tonight, I'm not so sure. I had always assumed that if Scotland voted for independence negotiations to begin, then we'd get another chance, once they were concluded, we'd have another say on whether we'd back the deal. It gave me the absolute creeps to hear that we wouldn't. I can't believe that Alex Salmond thinks that's legitimate."
I thought Caron would have been made of sterner stuff. The creeps? The haunted shudder brought on by the sleekit and Machiavellian process of giving the whole nation a free say? The diabolical machinations of Richard III it ain't. Yesterday, the two-referendums question revived again, with the jittery Michael Moore's latest pronouncement that in his learned constitutional opinion, two ballots would be required, if Scotland is to slip the bonds of the Union. This proposition is, in great part, supplied by benign "constitutional experts" of various stripes, shamelessly issuing imperatives about "needing" two referendums. Vernon Bogdanor shared his opinion with the Telegraph, who were frightfully keen to present the Professor's view as purified of its naked politics because he happens to be "a world-renowned expert". "Scotland's future will be decided by the people of Scotland, not by Oxbridge professors", was the Mouth of Eck's snarky riposte. UCL's Constitution Unit has also argued that for Scottish independence to succeed, a consultative first referendum (expected in this Holyrood term) would require to be followed by a second, affirming referendum on the given terms of the independence agreement. But necessary in what way? Who says? On what authority?
There are, I think, at least two distinct points being made by proponents of the two-referendum position, which are being unhelpfully (but productively) conflated. Firstly, a point is being made about the domestic constitutional order and the limits of Holyrood's powers under the Scotland Act. As has been discussed here before, Holyrood's power to call any referendum on independence is less than clear - however, all agree that if a plebiscite of any character is within the Scottish Parliament's legislative competence, such a plebiscite will not be legally binding in nature, but advisory only. The SNP government would gain no new legal powers to exercise thereby and Westminster priapists, obsessed with the sovereignty of that Palace, need not fear being put under the thumb of a higher sovereign. As Alan Trench has noted, "The Secretary of State is right here constitutionally speaking, however difficult that may be in political terms."
It is also useful to be clear about why the language of negotiation has become so prominent. I dare say many SNP and independence supporters would be much happier with a question framed thus: do you believe Scotland should be independent, yes or no? Indeed, some Unionists would share such sentiments and call for a clear and simple poll. Suspicious souls, they seem to believe that heretofore, the precise phrasing of the referendum question has been driven primarily by politics - with Salmond seeking a soft-soap phrase to lull Scots into supporting independence. Oppressed by such ungenerous thoughts, they do not seem to have considered the real source of the obscurity of the referendum's language: just another chimerical consequence of the legal detail. The SNP's draft Referendum Bill from the last parliament proposed to ask the following (arguably totally absurd) referendum question...
The Scottish Parliament has decided to consult people in Scotland on the Scottish Government's proposal to negotiate with the Government of the United Kingdom to achieve independence for Scotland:
Put a cross (X) in the appropriate box
I AGREE that the Scottish Government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state.
I DO NOT AGREE that the Scottish Government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state.
The only reason that the whole question is being couched in the ludicrously obscure, contortionist terms is the limits of the Scottish Parliament's devolved competence. It is a creature of domestic legal nicety and an attempt to get around the limits of Holyrood's powers. Which is certainly not to say that the whole question of negotiation is unimportant. Far from it. However, negotiation of a settlement emerges as the primary terms of the referendum as it has been drafted, purely for domestic legal reasons. The first question I'd ask folk pushing the "necessity" of two referendums is, do they think the Scotland Act's limits on the Scottish Parliament's powers are a good political reason, by themselves, to "require" two referendums, if Scotland votes "yes" to the first? Are you so attached to UK constitutional peculiarities, that if they are superseded by a collective decision of the Scottish people to form a distinct state, you'd insist on two polls, just so the legals are all tidily tied off? Isn't it just a touch suspicious, that we find ourselves in this predicament because of the eccentricities of the devolved settlement - and folk who are pro-Union are suddenly united in the analysis that it is a truth universally acknowledged, that a brace of referendums are required, if the institutions of our united polity are to unravel?
And for that matter, if you have an obsessive concern for strict legalities in political matters, why only have two referendums? After all, if Scotland voted "yes" in an advisory referendum, this affords Scottish Ministers no further legal powers. Their authorisation to negotiate independence would be "merely" moral and political. Surely, if we're full of legal stipulations, we should have one referendum to decide whether Scottish ministers should acquire legal authorisation from the people to negotiate independence, another once such legal powers are in place to decide whether they should exercise those powers, followed by still another to seal the deal? If there is to be a third, the hurdle of the Scotland Act still needs to be o'erleapt. As any constitutional expert might tell you, legally, this would require Westminster to step in, as the devolution legislation clearly doesn't permit a legally "binding" poll. Oh. And by English constitutional norms, such a referendum wouldn't be binding anyway, as Parliament is sovereign and can do what it damn well pleases. So we may have to organise another referendum to strip out parliamentary sovereignty, so the second independence poll really is legally binding. All neat and expert-like, wouldn't you say?
And there's the rub. When you look into the authority being summoned up by these constitutional experts, it is arid and quibbling fare, likely to convince the odd legalist but utterly lost on most folk. It is one thing to ask, how would a Scottish court deal with the legislative competence of an independence referendum under the Scotland Act? In our system, the judges would be bound by the law of the land, obliged to give effect to constitutional principles. Expertise matters, where that expertise will determine the practical outcome of a controversy. It is quite another thing, as a matter of politics outside of the courtroom, to corral together dreary constitutional pundits, with access to the mythic authority of the constitution, confidently to provide the benighted generality with answers and prescriptions, throttling us with commas and quibbles, telling us when expressions of our national self-determination "really counts". This is a familiar - and indeed, understandable - political stratagem. Expert knowledge is a splendid way of framing the debate in a manner satisfactory to oneself, turning opinion and the debated stuff of politics into objects of abstract knowledge, about which one can be right or wrong. The delight of doing so is that disdaining politics can actually afford political advantages. We must resist Moore's attempt to petrify the issues and cleave fast to the conviction that this is a political dispute, about which we can, should and must disagree, sincerely and candidly. No avuncular academic can easily rescue us from the predicament of deciding for ourselves what we take to be legitimate. There is no sacred book of rules from which the inducted can read off solutions for us, and shame on the old devils for pretending that they're doing so.
Here's where the second, more lively argument comes in: the idea that a gap separates agreement with the proposition of independence in principle - and accepting the final shape of an independent Scotland, once those negotiations have been concluded. Basically, it is an issue about the extent of the authority being afforded to Scottish Ministers as the agent of the people's will. Should that agent be entitled to bind its principal, or does the latter reserve a right of ratification, of accepting or refusing the terms reached? For example, we might envisage that an individual might support independence on the first ballot, but would withhold their vote in any second plebiscite, if Trident wasn't expelled from the country. Is this a good argument or not? If so, let the historical precedents be marshalled, reasons given, and a case made. What is clear, however, is that this is an argument amongst other arguments. The legitimacy of a referendum is, quite properly, contested terrain. Certainly, let's have a discussion about what we should do, but for heaven's sake, let's all of us forego the language of needs, musts and the dowdy compulsions of confounded constitutionalists.