19 January 2012

Devolution-max: SNP consolation prize or political hammer?

Locked in a peat-smoked bothy, worrying away on a particularly reluctant clod, I've been neglecting the affairs of the day.  We had an interesting YouGov poll on independence, which I intend to pull to bits for your interest tomorrow. Today, I thought I'd say a word or two on the latest pettifoggery and cavil surrounding the independence referendum. In the House of Lords during the main stooshie last week, the Advocate General for Scotland, Jim Wallace, was asked by Lord Davidson of Glen Cova...
"...if the Scottish Government produce contrary legal advice regarding the legality of the referendum, will the Government take the issue to the Supreme Court?"

Quoth the noble Lord of Tanktop in reply, with all of the odious obsequieties expected in that House...

"The noble and learned Lord asked whether, if the Scottish Government produce conflicting legal advice, it would be referred to the Supreme Court. As he knows, the reference to the Supreme Court would fall on any legislation. The whole purpose of this consultation is to try to avoid that situation so that any legislation passed by the Scottish Parliament is within the competence of the Parliament because provision will have been made for it. That is the way of progressing in a mature and less rancorous way. It is in everyone's interest to avoid any legal uncertainty."

Emphasis mine. While Wallace's colleague, Michael Moore, has said that the UK Government would not attempt any legal challenge to Holyrood legislation authorising a referendum. Wallace's statement, by contrast, at least still countenances the possibility. Given Moore's ditheriness, and the range of wrangling interests pulling the coalition this way and that, I doubt too much stock should be put in whatever view the Secretary of State happens to be entertaining today.  This was followed up by a piece in the Scotsman, in which Wallace kept open the possibility of litigation, to spike an SNP referendum, if the transfer of powers (with or without conditions) cannot be agreed between the parliaments. Wallace:

"said Attorney General Dominic Grieve would have a legal duty to consider a challenge to Scottish legislation if it was outside Scottish Parliament powers.  And while he fell short of saying he would take the matter to the Supreme Court, his stark language was seen as a clear signal that he would. He also warned that a third party almost certainly would make the challenge."

So three questions suggest themselves, one legal, the second two political.  Just what could Jim do, legally? What are the chances of UK law officers mounting a challenge to the Act, and if they do mount a challenge, who suffers politically?

First, the legalities. What powers do Wallace and the UK law officers enjoy? Under the Scotland Act, there are a series of legalistic hurdles new pieces of legislation have to bound over.  First up, a member of the Scottish Executive "shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence" of Holyrood. I dare say Salmond will be able to rustle up one of those. Secondly, the Presiding Officer, Tricia Marwick, will also have to "decide whether or not in [her] view the provisions of the Bill" would be competent, and will receive independent legal advice. Assuming that the SNP's Bill manages to o'erleap these two potential obstructions, and a majority of the parliament support the proposal when it comes to a vote, the Bill still has to be presented to Lizzie Windsor for her "Royal assent". In the days of the old Parliament of Scotland, this was indicated by the monarch's proxy touching the Act with the royal sceptre. No such grandiose gestures these days. 

But here's where it gets potentially interesting, depending on Lord Jim's nerves. After Holyrood has passed an Act, the Advocate General (Wallace himself), the Lord Advocate (Frank Mulholland) or the Attorney General (Dominic Grieve) have a period of only four weeks in which they may make a direct "reference" to the UK Supreme Court, authoritatively to determine the Act's legislative competence before it is assented to by the monarch and is able to come into force. The upshot being that UK law officers would have to decide what to do with themselves within a month of Holyrood legislating for a referendum, and we'll all know when four weeks are up. Thereafter, we only have to contend with the prospect of a dogged lone litigant, who wouldn't have the luxury of starting proceedings in so exalted a tribunal, and like other cases, would likely take a couple of years to work its way up the Scottish judicial hierarchy of appeals before it reached London. 

So those are the laws.  What are the chances Wallace or Grieve will avail themselves of them? Given the UK government's very public, and very categorical insistence that Holyrood's independence legislation would be wi' oot a doot unlawful, superheated by rule of law rhetoric, it looks increasingly difficult for them to avoid suing. Having calumniated Nationalist brigands in Holyrood for reaving across the borders into Westminster's exclusive competence, and making off with a clutch of powers without so much as a by your leave, what self respecting proprietor merely shrugs, and sighs, and consoles himself. "Oh well, I have other powers", rather than hot trodding after them? 

There are also other relevant calculations. Say Jim sits on his brief and doesn't challenge the Act before the Supreme Court. Do we avoid a damaging legal challenge? Not a bit of it, with lone litigants still hovering and likely to challenge the law, arresting referendum progress. From a timing point of view, and the desire to avoid gloopily protracted litigation, an intervention by one of the UK law officers is just about the only way of being sure of avoiding judicial procrastination (apart from a successful section 30 order under the Scotland Act, to buttress Holyrood's powers). Not to challenge the Act makes is to permit a much more protracted obstruction of the process, and the UK government has to be frank with itself about that. 

The snag? Political, unsurprisingly. Specifically, how any such intervention would be received by the Scottish press and the public. At first sight, there is promising material here for the Nationalist. On the "legal" side of things, and the scope of Holyrood's legislative competence, most folk haven't the foggiest one way or the other. This being the case, it would be potentially tricky for Liberal and Tory Westminster politicians to characterise their vires "challenge" in a politically defensible way. "We shall fight to the last ditch, to uphold our interpretation of s29 of the Scotland Act 1998" is not a motto for heroes. It's also significant that the press have generally avoided even trying to cover the legal arguments in any detail. This seems unlikely to change. That being the case, there's a real risk that any legal challenge be seen as a purely technical pretext for Tory meddling. As we saw with David Cameron's sally and retreat, even the suggestion of tinkering or imperious treatment of Scottish interests prompted a scorching reaction. Imagine, then, what most folk would make of a full-blown court case launched by a Tory-lead government, pursuing a point of principle on an obscure legal topic controversy nobody will be emotionally engaged by?

On the other hand, for the Nationalist, things have changed. Despite Cameron's gawkish contributions, the coalition has full-throatedly argued its case that without fixing the devolved settlement, the SNP referendum faces legal challenge. The public may not have imbibed that point, but the hacks undoubtedly will have. Manipulative though they are being, the UK government's section 30 order undoubtedly provides a way out of this potential legal morass. However, the precise terms of Moore's Order in Council will have to be agreed not just by Westminster, but by Holyrood as well, which for all intents and purposes, now means the SNP majority.

What will it do? If the SNP reject Moore's Order, and their referendum Act is waylaid by legal challenges, either from Wallace or a member of the public, wouldn't the Nationalists be particularly susceptible to "told you so" stories, and a rather less sympathetic reading of their predicament? Isn't there a risk that Salmond looks rather absurd, if his cast-iron insistence that the referendum Bill would be competent is placed under much sharper scrutiny by Lords Reed, Hope and the other Justices of the Supreme Court? And what would the UK government do anyway? Leave the SNP twisting in the wind? Scheme up some intervention? Shrug? Despite the real difficulties which mounting a legal challenge would seem to cause for the coalition, with the UK government's change of tune, and aggressive challenge to Holyrood's legal competence to hold any referendum on independence or more devolution, a legal challenge must be a much less attractive political outcome for the calculating Nationalist than once it was.

It strikes me, however, that the coalition may have seriously blundered, and given Nationalists potential cover to reject his section 30 order and its conditions, while staying on the right side of public opinion and - egad - even pursuing a point of principle.  Say that the coalition insist on the terms of their draft Order, which would disallow any "devolution-max" question on a independence referendum ballot. We also know that "more powers" will be a popular (arguably the popular) option. The case for its inclusion will be significantly strengthened by various partisan and non-partisan, quoteable persons from across Scottish public life, who envisage greater devolution as an attractive alternative to independence, and who are persuaded of the virtue of asking about it during the referendum process. Say too that the SNP leadership are absolutely determined to have a "more powers" option on the paper, and refuse to endorse the coalition scheme. SNP rejection of the section 30 Order securing the legality of the referendum would be problematic if it looked partisan, surly or pointless. However, by trying to kill off devolution max, and confine the SNP to a "yes or no" referendum, the coalition have given the Nationalists a clear, credible and substantive reason for rejecting the Order. You can almost hear Alex Salmond now...

"The SNP is committed to representing the interests of the Scottish people. It is clear that a large section of our community wishes to be able to express their will on the Scottish Parliament taking on more powers. As democrats, we believe it is the right of the people to decide for themselves how they are governed, and that it is absolutely their right to have a "devo max" question on the ballot paper. David Cameron and Michael Moore disagree, and presume to tell Scots what referendums they can and cannot have, what questions they can and cannot answer about their lives and their futures. We disagree. That's why we cannot accept the Tory-lead government's attempt to impose their will on the people of Scotland, and why we will be bringing forward our referendum with two questions, one on independence, one on devo max, to give the people of Scotland their say on their future."

It would be profoundly difficult to cast this sort of reasoning as stubborn and purposeless obstructionism.  Now, it may be that the desire to see "more devolution" on the ballot will morph Moore's initial draft Order into a shape that doesn't require a simple "yes-or-no" independence question. If not, however, then devo-max need not just be a consolation prize for disappointed nationalist seeking independence. Given its popular support, it becomes a pretty effective political hammer with which to clobber the continuing inelegant machinations of the UK coalition on Scotland's constitutional future.

63 comments :

  1. We live in interesting times - I'm rather enjoying it.
    Machiavelli would love to be here.

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  2. The key point is surely that UK Government ministers have said publicly that they do not want to stop the referendum and are willing to pass a section 30 order or whatever it is to enable it to proceed with no legal challenge. Whether or not there would have been a legal challenge and, if so, what the outcome would have been is something no-one will ever know now (though I have no doubt there will be continuing speculation!)

    There now remains a political process of trade-offs. The UK Government has already effectively conceded the date. The Scottish Government may well concede the Electoral Commission having control, provided it can be made formally accountable to the Scottish Parliament.

    Votes for 16 and 17 year olds? I dunno. Personally I don't support that but many in the SNP do.

    The big question is the format of the questions. My personal opinion is that this matter will be genuinely resolved by consultation. I don't think the Scottish Government actually has a fixed position on it. And I wouldn't be totally surprised if the position of other parties turned out to be not quite so fixed as appearances would suggest.

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  3. LPW, I cannot fault your analysis of the different political considerations except to say that my reading is that there is no prospect of Westminster backing down on a single question.It's also important to note that, while there is a convention that a s.30 would not be passed without Holyrood's consent, that is not the law.


    I do however have some doubt about your reading of the legal process. It seems to me that on the back of Whaley v Watson the Ministerial Certificate of competence, probably, and the Presiding Officers Certificate, certainly, would be subject to Judicial Review.

    That would involve not only a challenge at an earlier stage by any person showing an interest (presumably anybody living in Scotland) but an initial decision in the Scottish Courts which would only end up at the Supreme Court if the Party initially losing chose to take it there. If the Party who had lost in The Court of Session was the Scottish Government, an appeal by them to "London" might prove a little difficult presentationally.

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  4. Devo-max is a masterstroke by Salmond.

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  5. Groundskeeper Willie19 January 2012 13:57

    If a single question referendum returns a no vote, is Salmond's political career over?

    And what happens to the SNP?

    Might that not be the reason for having a two question referendum?

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  6. You know the consultation is going to be launched next week. There will be wall-to-wall discussion of it. At some point you guys are going to have to stop focussing entirely on what you think the SNP's motivation is and engage with the actual issue. If you are against a question on Devo Max/Full Fiscal Autonomy, why is that?

    Is it because you think it extends devolution further than you are comfortable with?

    Is it because you don't think it is workable within the UK's constitutional set-up?

    Is it because you don't believe that the UK Government/Westminster Parliament would agree to it?

    Is it because you think it's a further skoosh down the slippery slide to independence?

    Have you even thought about why you are against it - or are you against it simply because you think the SNP might be for it?

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  7. Willie - a no vote doesn't bear thinking about. Westminster are then free to ignore Scottish interests as we'll have just given our consent to being governed by the party of England's choosing. Increased devolution? Forget about it. We may even have some powers taken away again to stop us causing trouble. Look forward to an assault on our bloc grant by the Tory right-wing. "Why do the Jocks have so much free stuff? They must have too much money - let's scrap the Barnett Formula and just even spending out per head." That will, of course, ignore the fact that we put more money into the UK economy than anyone except for London and the South East.

    Arguably the SNP will become more important than ever if we vote no, because no one else will stand up to the inevitable onslaught from Westminster. If it was a three-option referendum, then perhaps the party will split amongst those who thought devo max was a good idea and those who didn't. If it's a two option referendum, then I'm not sure how a split would occur.

    Scotland must come away from this referendum with a vote for more powers than we have now, that's all there is to it. But as devo max is unworkable and almost certainly won't be on the final ballot, then it's imperative that we vote yes to independence.

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  8. "If a single question referendum returns a no vote, is Salmond's political career over?"

    Maybe. He'll be 70.

    "And what happens to the SNP?"

    Nothing. The Lib Dems didn't disband when they lost the AV referendum, and anyone who thinks the SNP would just shut up shop after losing one vote has several screws loose.

    "Might that not be the reason for having a two question referendum?"

    No. There will not be a two-question referendum. The SNP will make a great show of reluctantly being forced to concede a single-question one, on pain of years of legal obstruction, telling the Scottish people - quite truthfully - that they tried. But it's what they've wanted all along, because not a single person in the UK outside of a lunatic asylum believes independence would win if devo-max was on the ballot paper.

    Regardless of the arguments, people will without a doubt take the safe option first if it's on offer, and then see how it goes.

    Funnily enough, every time I offer to back up this assertion with money, none of the chumps who think the SNP desperately want two questions are prepared to put any of theirs where their mouths are.

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  9. Doh, Salmond will be 60 in 2014, not 70. In which case, the answer is "No."

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  10. I like the Pythonesque use of the word "any" in the sentence "The whole purpose of this consultation is to try to avoid that situation so that any legislation passed by the Scottish Parliament is within the competence of the Parliament"... "any legislation passed", apparently, should be footnoted "with the single exception of legislation it wants to pass".

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  11. Groundskeeper Willie19 January 2012 16:37

    Did the Scottish people vote to have a referendum on Devo Max (whatever that means)?

    I don't think they did.

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  12. In his question to Jim Wallace, Lord Davidson attempts to claim the moral high ground, indicating with lordly generosity there is little rancour or immaturity on this issue on his side.

    But Davidson's questions to him are pop-eyed with spleen and bottled fury - accusations abound against Salmond of dissembling, trickery, suppression, secrecy and obfuscation.

    Such silly exaggeration is not really a sign of maturity or indeed equanimity.

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  13. Groundskeeper Willie19 January 2012 17:12

    Didn't Salmond say that an independence referendum could only be held once in a generation?

    This is his last chance.

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  14. "Did the Scottish people vote to have a referendum on Devo Max (whatever that means)?

    I don't think they did."


    You can't have read the SNP manifesto, then, which promised a referendum on "full economic powers".

    But regardless of whether it was in the manifesto or not, they elected a majority SNP government, so they voted for basically whatever that government decides to do. Welcome to democracy.

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  15. They voted for a referendum on independence, which they will get.

    The SNP has always made it clear that if there was support for a third option that could also go on the ballot paper.

    It remains to be seen whether there is significant support for a third option; that will become clearer during the course of the consultation.

    But Labour's tactics in lining up with the Tories and Lib Dems to rule out even a discussion of a third option don't make sense to many people.

    It makes you look scared. It makes you look uninterested in the opinions of Civic Scotland. It makes you look as though you put Westminster before the Scottish Parliament. And it seems entirely unnecessary to me because you could easily support that debate without any consequences for yourselves. You don't have to make any commitments at this stage so why paint yourself into a corner when you don't have to?

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  16. Groundskeeper Willie19 January 2012 18:39

    'It makes you look as though you put Westminster before the Scottish Parliament'


    The respective turnout figures for Holyrood and Westminster elections suggest that that is the settled will of the Scottish people.

    No one has a mandate for a two question referendum.

    The SNP only want it because they know they will lose the question on independence.

    And Salmond's career will be finished.

    And, let's be honest, there's no one of the same calibre to replace him. Not even close.

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  17. If you've got the questions and answers already scripted for yourself, any chance you could just go and read them into a mirror and spare the rest of us the tedium?

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  18. Salmond wants a legal challenge so that he can go to the 2016 election campaign claiming that "perfidious Albion" is stopping the "will of the Scottish people" (see: SNP / Joan McAlpine / anti-Scotttish).

    You fear "gloopily protracted litigation", Wee Eck welcomes it.

    Ironic or what?

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  19. I don't see it.

    I agree with you that the referendum has a legal problem, which can be legally resolved by Westminster granting Holyrood the power to hold the referendum during the term of the current Scottish Parliament.

    The date is roughly set - autumn 2014 - and once Alex Salmond sets the consultation in process to determine the form and content of the referendum, the Westminster parties have the choice which is no choice at all.

    If they engage in an undignified legal confrontation to deny the Scottish Parliament the use of the Scottish electoral rolls this will do more to further the cause of independence in Scotland than anything the SNP could do.

    The Tories may feel they have no choice but to do all they can to oppose the referendum. I'm hoping - given that I am waveringly in favour of devolution rather than independence - that they see sense and quit opposing a referendum that has a clear democratic mandate.

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  20. Groundskeeper Willie20 January 2012 09:37

    January 2012 19:28

    EyeEdinburgh said...

    'a referendum that has a clear democratic mandate.'


    The turnout was 50%.

    Of that 45% voted SNP.

    The SNP manifesto didn't mention a two question referendu.

    It didn't mention changing the voting rules to include 16 and 17 year olds.

    The SNP's mandate, such as it is, is to have a one question referendum, for adults.

    No one would object to that.

    No one other than the SNP. They know they would lose such a referendum and Salmond knows he'll be left high and dry, like a beached whale, with no hope of seeing independence in his lifetime.

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  21. Can I just say how much I welcome the approach of Groundskeeper Willie, Braveheart et al.

    You guys are writing yourselves out of the history books. The SNP hardly has to lift a finger.

    Very obliging of you!

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  22. Groundskeeper Willie20 January 2012 11:02

    Indy

    Be honest.

    A one question referendum.

    What's the result going to be?

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  23. In terms of the legal question, is it not just a case of top trumps?

    I mean, Wallace of the tanktrap is saying the UK supreme court (and westminster law) trumps Scottish law and it seems to me international law trumps the UK supreme court and westminster.

    According to international law for example (I read somewhere) if a country that is part of a union or state that has defined systems in place (like the law, NHS etc) that can be identified independantly of the other part of the union (probably haven't worded that well) then the country suing for independence has a right to hold the referendum and any interference by the other country or state is actually illegal?

    I know not very many English people see Scotland as a country in and of itself because thats how they've been taught at school, but thats how it is.

    Surely we have a right to decide for ourselves without westminster majority interference (I say majority because I haven't forgotten about the many Scottish MP's we send there, the so-called Scottish Grand Committee who have our sovereign interests {a question for another time}.)

    On devo-max. Apart from the notion it won't work, I think if civic Scotland want to be asked then it should be included. As I recall it was mentioned in the manifesto and AS mentioned it during the SNP conference so fair notice.

    In terms of a one question referendum, I'm comfortable with it because all the polls and punditry in the run-up to the May 2011 Scottish Election (rather ridiculously) had labour in the lead by double figures. The reality was they got severely reamed.

    As time goes by more and more people are becoming comfortable with independence despite the best efforts of 'British' politican's scaremongering. And lets be honest, everytime some furry lord opens his or her mouth the huge number of Scots-people are not impressed.

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  24. I am never less than honest. I think we'll win. If it is a one question referendum, as seems likely, we'll win big-time because we'll sweep up all the votes in favour of progress and change. That is the madness of Labour's position. You are pretty much handing us the middle ground on a plate.

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  25. Groundskeeper Willie20 January 2012 12:59

    Indy said...

    'If it is a one question referendum, as seems likely, we'll win big-time'


    So why do you want a two question referendum?

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  26. How many times can we have the same conversation GW? The SNP has a clear preference for a single question on independence. But there are other opinions out there - the STUC, SCVO, Reform Scotland, various other bodies - Uncle Tom Cobbley, Canon Kenyon Wright and all. We are willing to listen to them and consider their arguments for putting a question on Devo Max on the ballot paper. Your party is not. Spot the difference? You can be sure they do.

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  27. Groundskeeper Willie20 January 2012 13:35

    Indy said

    I do apologise.

    I hadn't appreciated that your stance was so magnanimous, altruistic and principled.

    You don't want a two question referendum for your own benefit, but for the benefit of others.

    It's all so clear now.

    But I can't help wondering.

    If a two question referendum results in 50% plus 1 vote for independence and 100% vote for devo max you'll take that as a mandate for what?

    Independence or devo max?

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  28. Indy's position is ludicrous.

    The SNP has fought for decades to have a single question referendum...in/out?

    They now have a mandate for a single question referendum....in/out?

    So, according to the bold Indy, they think: "wait a minute, there may be other options. I know, why not put Devo Max (whatever that is) on the ballot paper so we can lose!. It's only fair."

    Eh? Whit? Am ah daft or sumthin'?

    It's like one of some pukkah brit officer leading his men to destruction... "I say old fellers, the fuzzy wuzzy's have run out of bullets. Let's just drop our guns and fight barefisted eh? Can't take unfair advantage, what? Wouldn't be right, we might win.."

    :) :) :)

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  29. Couple of things.

    @Willie. It seems to me that you're judging AS and the SNP in general by unionist standards. I think its just a happy coincedence that SNP altuism could also be seen as devilry and gamesmanship. Obviously the Tories or Labour etc would never indulge in such tawdry going-ons.

    Secondly in general. It doesn't matter if only 50% turned out to vote. All that proves is the other 50% don't care. The notion that they mean no is as credible as the notion they mean yes. The difference is the SNP don't count those who didn't vote as being on their side as labour likes to do.

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  30. I have to this is the most bizarre exchange....

    anyways, pabroon. let's see..

    the SNP is so altruistic that it would force us to take a "devo max" question, which we don't want but is "for our own good", even although it makes the loss of the "independence" option more likely, but you are so adamant about "independence" that you would drag us into it on the support 25% (or fewer)of the electorate....

    and Indy thinks that if "independence" gets 50%+1 and "devo max" gets 100% you just adopt both!!!***

    Forgive me.

    Is this thread being moderated for contradictory idiocy?

    Or is contradictory idiocy now official (as opposed to unofficial as it has always been) policy?

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  31. last sentence should read

    Or is contradictory idiocy now official (as opposed to unofficial as it has always been) SNP policy?

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  32. Groundskeeper Willie20 January 2012 16:51

    pa_broon74 said...
    Couple of things.


    When anyone mentions that the SNP have a mandate to do anything it's worth remembering that they got 45% of the vote on a 50% turnout.

    It helps us to keep a sense of perspective.


    'Indy said...
    GW - both, obviously'

    So your desire to have a two question referendum isn't to take account of those who would favour devo max, it's to give wee Eck a consolation prize.

    Who'd do you think will replace him when you lose the referendum?

    Or are you stuck with him because there's no one else up to the job?

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  33. Braveheart - both you and GW are daft. And you both illustrate the mindset that has dragged Labour down with all the effectiveness of concrete boots.

    And the reason for that is clear. You don't have a cause or - if you do - you don't believe in it. I am not scared of Devo Max "beating" Independence because I don't think it would. That is why it doesn't bother me one iota if it is on the ballot paper. (On balance I don't think it will get on the ballot paper but that's another matter).

    What is Devo Max? It is basically Independence without control of defence, the constitution and foreign policy. So it would be basically voting for Independence but leaving Westminster with the ability to send Scottish troops back into some other bonkers war (Iran anyone?). Independence - but we get to keep the nuclear weapons on the Clyde. Independence - but Scottish fishing and agriculture and energy interests are still represented in the EU by UK ministers. Independence - but still no written constitution.

    Etc.
    .

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  34. As far as I am aware, the SNP aren't forcing any one to do anything. The consultation goes out on the 25th and we'll have our say then.

    There is a significant amount of support for devo-max (even although devo-max hasn't exactly be quantified) what is so wrong in not ruling it out?

    You're also conflating polls, voting on along party political lines doesn't necessarily gel with what people will do in an independence referendum. There are people who don't vote SNP but would vote for independence and vice versa. This chat about 25% of the electorate 'dragging' us anywhere is facile because we don't know what the percentages would be.

    On this 45% on 50% turnout. This is the electoral system we operate. The party that gets the most votes gets control. People who don't vote cannot be counted for or against, if anything they are a null value.

    You simply can't assume because a person didn't vote, they didn't agree or disagree with what the vote was about, I know labour struggled but they can't claim the votes of all those who erm, didn't vote. That is contradictory, the idea that the SG shouldn't govern because more people didn't vote at all than voted for it is stupid.

    I'm not a huge fan of everything SNP does, I wouldn't necessarily vote for them after independence, I have to say though, when asked who they'd replace him with if they lost the referendum then go on to say there isn't anyone else. I would say, at least the SNP managed to muster one half-decent politician (if that isn't a stretch of the imagination.) The others can't even do that.

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  35. Folks, haven't we learned by now that it's futile attempting to debate with Willie and Braveheart? They've never listened to a word, and just keep trotting out their pre-prepared scripts unchanged every time anyway.

    Can either of them provide a SINGLE example from any time in the last five years of the SNP saying they WANT a two-question referendum? No, because it's never happened - all the SNP have ever said is that they're prepared to offer the opposition the opportunity to ask for one.

    But the compete absence of factual basis bothers Willie and Alex not a jot - they have a flowchart to follow, and the only reason they read other people's posts at all is to pull misleading out-of-context quotes out of them that they can hang another of their tedious pre-prepared screeds on.

    We're stronger together and weaker apart, donchaknow?

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  36. @pabroon

    "There is a significant amount of support for devo-max"

    There is significant amount of support for hanging...

    There is a significant amount of support for returning to the pre-devolution settlement.

    There is significant support for lots of things.

    Why not include one or all of these options?

    "what is so wrong in not ruling it out, (even although devo-max hasn't exactly be quantified)?"

    What's right in ruling it out is because, as you so rightly say, it isn't quantified. Nobody knows what it means. It is a slogan, not defined in any way that can be translated into real actions or real responsibilities. What would a vote in favour of "Devo max" mean if it's not, as you so rightly say, unquantified (meaning undefined I Prsume).

    Plus, no-one has a mandate for it.

    Plus, the SNP opposes it, so why would they want to include it in "their" referendum?.

    Plus, all the other parties oppose it, so why would they want to include it in any referendum?..

    Plus it is only pushed by the SNP so that, when they lose the "independence" referendum, they have a fallback to say "WE WON REALLY, ECK STAYS IN HIS JOB!!!".

    Apart from that....

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  37. I managed to understand that article,despite it being after midnight and spending the best part of a day "playing" with Excel.

    Being a complete legal airhead, I think Westminster is going to take a political risk here and drag the whole thing out. My reasoning is that the polls seem to hover around 40% in favour of independence. This is spite of the SNP ruling the roost at Holyrood. The Tories can't get much unopular in Scotland, and using the legal argument makes it harder for the SNP to say they have a mandate, when to hold the referendum would be breaking the law (simplistic point I know before someone throws a brick).

    Dragging things out over years would probably (not definitely!) damage the SNP more, since it may appear that the SNP are trying to get round the law somehow.

    But having followed some court cases, it never ceases to amaze me what a good lawyer can pull out of the proverbial hat.

    (And I'm keeping clear of the Devo Max argument!)

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  38. RevStu: "Folks, haven't we learned by now that it's futile attempting to debate with Willie and Braveheart? They've never listened to a word, and just keep trotting out their pre-prepared scripts unchanged every time anyway."

    Fair enough!

    BotN: "and using the legal argument makes it harder for the SNP to say they have a mandate, when to hold the referendum would be breaking the law (simplistic point I know before someone throws a brick)."

    But here's a thing - I believe devolution is the right option for Scotland, not independence. (Well, mostly I do. When I contemplate the current burst of Toryism in government in Westminster, I quail.) I'm not an SNP voter.

    But they have as clear a democratic mandate for holding the referendum as anything: they declared they were going to do it well prior to the election, and they won the election. End of.

    Whichever way I end up voting when I finally have a ballot paper in front of me in autumn 2014, the SNP have the democratic right to hold the referendum.

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  39. I thik Braveheart has kind of let the cat out the bag there by comparing Devo Max to hanging. That's a Freudian slip if ever I saw one.

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  40. There's an ineresting article in the Scotsman today on this subject which captures the very point that the Labour leadership and their followers have overlooked. " Cameron is making a major-category error if he thinks that his aggressive jockeying with Salmond will win the approval of unionists in Scotland. Scottish unionists obviously do not carry as much “nationalist” baggage as their more ostensibly nationalist opponents in the SNP, but they do not like to see Scotland – or even Alex Salmond – bullied. Nationalism is a neglected – but crucial – ingredient in Scottish unionism. The irony of the current situation is that Cameron’s manoeuvring seems as likely to provoke Scottish unionist voters into venting their nationalism as nationalists"

    I apologise in advance if this makes Braveheart's head explode.

    http://www.scotsman.com/news/cartoon/colin_kidd_popular_sovereignty_not_just_for_nationalists_1_2070134

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  41. GrassyKnollington21 January 2012 10:40

    I think Cameron is more interested in how his aggressive jockeying with Salmond ( and Scotland) plays out among Tory voters in the shires than how it looks to Scottish unionists.

    David Steel and the like would obviously like him to butt out so that they can deceive Scots themselves. Although they share Cameron's anti-Scottish agenda (cue the Pavlovian howling from people who condone anti-Scottish behaviour from politicians but get uncomfortable when they're called on it) they feel they know the ground better up here and that Scotland based Britnats are better equipped to lead the scheming, fearmongering and obfuscation.

    In essence they worry that the machinations of Cameron and Osborne may appear anti-Scottish and although their own manouverings would have an identical objective they reckon being based in Scotland themselves, the whole thing will just look better.

    Cynical or what.

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  42. >>Braveheart - both you and GW are daft. And you both illustrate the mindset that has dragged Labour down with all the effectiveness of concrete boots.<<

    Lol! They are one in the same.

    I personally would hate devo max as we have the illusions of statehood whilst still obliged to fight US energy wars that are now bordering on fascist in the enterprise they are using to orchestrate them.

    I am rapidly coming to the conclusion that we are all dancing on the heid ae pins. We will be independent wan wiy or another shortly, there is no reversing the energy at play. Oh and it has been pointed out that wee Eck is totally comfortable with all this talk of legal constraints because politically the will never wash no matter how much the begrudgers girn.

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  43. Groundskeeper Willie21 January 2012 12:00

    EyeEdinburgh said...

    'the SNP have the democratic right to hold the referendum.'


    The SNP got 45% of the vote on a 50% turnout.

    Their manifesto doesn't mention of lowering the voting age for a referendum to 16.

    Their referendum doesn't mention a referendum on devo max, or a multi question referendum.

    Their mandate is to hold a one question referendum on the question of independence using the existing electoral system.

    Holyrood doesn't have the legal power to hold such a referendum but that can be easily remedied.

    Curiously though the SNP don't want to hold a legally binding referendum on the terms they have a mandate for.

    I say curiously, but there's nothing curious about it. They know they would lose such a referendum.

    Why would they want to hold a referendum they know they'll lose?

    So, what are their options?

    Delay the referendum citing as an excuse the threat of a legal challenge.

    or

    Hold a two question referendum so that they can claim getting devo max as a victory rather than acknowledge failure in failing to get a majority for independence.

    The problem with all this though is the 'events dear boy, events' factor. The political attrition they'll suffer as things go wrong (they always do, for all parties in power)wearing away the gloss. Maybe a personal scandal along the way. Personal feuds, backbiting, all the things that are the stuff of politics. The novelty factor wears off and they come to be seen as the usual political hacks desperate for office.

    And all the time Salmond is getting older and more obese. Without him the SNP would be nowhere, everyone knows that, not least the man himself. The question of a successor when the referendum is lost is an interesting one, though perhaps one for another day.

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  44. Groundskeeper Willie21 January 2012 12:06

    Tony said...


    In the mid 1950s the Tories got over one half of the vote in Scotland. It turned out to be their high water mark and was followed by a slow but seemingly interminable decline.

    Don't assume tides won't change.

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  45. I agree that all of this will be resolved by a process of consultation and negotiation. If it weren't though, I'm with Christine O'Neill: "Ultimately, however, the lawyers, and the legal arguments, will need to give way to the views of the Scottish people." This would not be decided by digestion of obscure legal technicalities, interesting though they may be. It would boil down to a Scottish democratic mandate versus a Westminster diktat. Are we really saying that Scotland is not allowed to hold a referendum or secede without Westminster's permission?

    The format of the ballot paper then. I'm strongly in favour of one clear question because I believe Independence can win. I'm becoming slightly more relaxed about a devo max option because it wouldn't be long until we were back for the rest anyway, but let's not waste any more time. I don't think it'll be there though, and it's very important that people know who's responsible for it's exclusion. If Independence is only devo max + defence + foreign policy, why not just have that instead, particularly if it's all that's on offer?

    Now that the date and oversight looks to have been more or less settled, how long for the rest?

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  46. Groundskeeper Willie21 January 2012 13:35

    Graham said

    Q. Are there any political parties objecting to a straight yes/no referendum on independence using the existing electoral system?

    A. No.

    Q. Why not go for that option then given that no one can claim to have a mandate for anything else?


    A. Because if it results in a no vote the SNP and Salmond will be stuffed for a generation.

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  47. I’m in favour of a straight y/n but if there has to be a devo max question then so be it. I’m also in favour of extending the franchise to 16+ but if it has to be the existing electoral roll then so be it.

    If it is a straight y/n and the answer is no, can you not see that the door is still open to a stand-alone devo max referendum? Those in favour of more powers are not going to simply pack up and go home no matter what. Are you in favour of any change at all? Do you think it’s acceptable for the Scottish Parliament to continue spending revenue which it has no responsibility for raising? I don’t believe that’s sustainable and neither do a lot Unionists.

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  48. Groundskeeper Willie21 January 2012 14:46

    Graham.

    I'm not sure what devo max means.

    It seems to be a rather loose and vague concept and therefore not really something that can be put to a referendum.

    Besides, I think the general drift of political opinion is to increase Holyrood's powers. That's probably something that is better done in a gradual and evolutionary way though it's not something I am much bothered about.

    The idea of reducing the voting age is ridiculous.

    If there's to be any change to the voting system it should be to make attendance at the polling booth compulsary. I can't imagine the SNP would favour that though. It doesn't suit their agenda.

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  49. I hope you have made your views on lowering the voting age known to Matgaret Curran, Anas Sarwar, Kezia Dugdale and all the other Labour members who have made a song and dance about their support for it.

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  50. I'm not 100% sure what devo max means myself - it's increasingly being referred to as Independence minus defence and foreign policy but. Whatever. It's up to those who want more powers short of Independence to decide what those powers are and put forward their case. But none of that matters to me in the slightest because I'll be voting for Independence and I'm crystal clear on what that means.

    You may think that extending the franchise to 16+ is ridiculous but many others think differently. I came to that particular debate with an open mind and have heard many good arguments in favour but can't recall one good argument against. Persuade me.

    D'you mean compulsory voting just for the referendum? It would be better if everyone took part but I wouldn't be in favour of penalising those who just don't want to. I've blanked all elections since 1997 in sheer disgust - it's starting to get interesting now though. I'll re-engage post-Independence when my vote will actually count for something. Hopefully then the whole spectrum of Scottish political opinion will be reflected, Right, Left and Centre.

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  51. Groundskeeper Willie21 January 2012 17:06

    Indy

    I'm not a member of the Labour Party, never have been and never likely to be.

    It's interesting though that some of their MPs and MSPs have their own views on the issue.

    Are there any SNP MPs or MSPs who are against lowering the voting age to 16?

    #####

    Graham

    16 and 17 year olds are too immature to vote. They lack the experience and wisdom to make informed choices. That's why they are prohibited by law from doing so many things adults are allowed to do. There's a reason why motor insurance premiums for teenagers are so high.

    And what do you have against 14 and 15 year olds that you would deny them a vote?

    I'm not in favour of compulsary voting, but I think people should be required to attend the polling station.Turn up with your polling card and have your name marked off the register. Whether you vote after that is up to you. That I understand (from a call to George Galloway's radio programme last night) is what happens in Australia, which is not generally regarded as being the most authoritarian country in the world.

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  52. "16 and 17 year olds are too immature to vote."

    What a terrible sweeping generalisation. So are lots of 35- and 40-year-olds, but nobody's proposing banning them. The idea that maturity somehow arrives at 18 is hilarious.

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  53. Groundskeeper Willie21 January 2012 17:56

    RevStu

    Are 15 year olds mature enough to vote?

    Are you in favour of the Australian system making attendance at the polling station obligatory?

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  54. "And what do you have against 14 and 15 year olds that you would deny them a vote?"

    Nothing. I wouldn't. Unless we are going to be silly about this we do of course have to draw the line somewhere. I'm actually in favour of extending the franchise to 14+ and I'll tell you why. 14 year-olds are perfectly capable of understanding the political issues of the day and that is the age that they are expected to start thinking about their own future and career by selecting study subjects, for example.

    Compulsory attendance at polling stations is just a fudge and a vindictive one at that. It would only serve to alienate people further and and make the law an even bigger ass than it already is. How many do you think would actually be fined? Probably similar to the census - none. Some people will just ignore daft laws regardless. If there is taxpayers' money to burn then it would be better directed elsewhere.

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  55. Groundskeeper Willie21 January 2012 18:34

    Graham

    What have you got against 13 year olds that you would deny them a vote?

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  56. Groundskeeper Willie21 January 2012 19:00

    Does anyone know if any SNP MPs or MSPs have dared to voice objections to reducing the voting age to 16?

    It would be very odd for any political party to be unanimous on an issue like that.

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  57. Groundskeeper Willie21 January 2012 19:18

    Graham

    Compulsary attendance at the polling station seems to work for Australia.

    Percentage turnout never below 95%

    http://www.aec.gov.au/Elections/australian_electoral_history/Voter_Turnout.htm

    I can't see the problem, provided people aren't forced to actually vote.And for the handful of dedicated anarchists who object to any contact with the state it gives them an opportunity to take a principled stand rather than just be lumped in with the apathetic. Everyone's a winner.

    As I said Australian isn't regarded as an authoritarian country, nor its people as deferential.

    Obviously the SNP would be against the system, because it would work against them, but other than that I can't see what the problem is.

    If you're going to ammend the voting system, this would be the way to do it.

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  58. I'm not arguing against the fact that the SG has a democratic right to call a referendum, provided it is within the scope of the law.

    But I think the SNP are starting to make things harder here:

    Firstly with their demand for under-18's to vote, which as I've previously said is a cynical move on their part.

    2014 has been chosen, conveniently the 700th anniversary of Bannockburn. The SNP keep insisting they are not anti-English.

    Now Salmond has suggested voting should take place on a Saturday, to allow more people to vote. What makes him think more people will vote on a Saturday?

    What Salmond should have done in May was to clearly state the plan for the Referendum.

    The arguments are going to last for over two years, and people will start to get sick of it.

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  59. Groundskeeper Willie22 January 2012 11:26

    Barbarian of the North

    'Now Salmond has suggested voting should take place on a Saturday, to allow more people to vote. What makes him think more people will vote on a Saturday?'



    A poll on Saturday would in all probability result in a lower turnout, which of course would be to Salmond's advantage.

    If he was concerned about increasing the turnout he'd be suggesting making voting, or at least attendance at the polling station, compulsary.

    Perhaps if there was a minimum threshold for the vote it might help concentrate minds a bit.

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  60. Lol. A poll on Saturday would in all probability result in a lower turnout? Yes because most people work on a Saturday, as opposed to a Thursday which is a day off.

    Whatever next?

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  61. Groundskeeper Willie26 January 2012 16:19

    Indy

    People's Saturdays are precious to them, precisely because they work all week.

    If you wish to have a higher turnout the thing to do is have compulsary attendance at the polling station.

    Would you be in favour of that option?

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  62. See:

    http://ukconstitutionallaw.org/2012/01/31/gavin-anderson-et-al-the-independence-referendum-legality-and-the-contested-constitution-widening-the-debate/

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