25 January 2012

#Indyref: Salmond's discreet legal concessions...

Just a brief(ish!), instant reaction of Salmond's statement in Holyrood, launching the Scottish Government's consultation on the independence referendum.  Last night, I had the opportunity to attend Alex Salmond's Hugo Young lecture at the Guardian in London. In the course of his address, Salmond said:

"... our starting point in all of this is that the Scottish Parliament ultimately has the mandate to determine the referendum process. Westminster legislation which dictates rather than enables would not just be unacceptable to the Scottish government. It would be contrary to the rights of the people of Scotland."

In the subsequent question and answer session, I managed to get my paws on the microphone, and asked the FM the following question (more or less). Salmond says the Scottish Government won't accept conditions being imposed by the Westminster government. We needn't be vague about what those conditions might be. Michael Moore's consultation includes a draft Order in Council, which would empower Holyrood to hold a referendum on independence, but which would explicitly rule out the possibility of Holyrood asking any second question about "devo-max", more powers, or all powers short of foreign affairs and defence. That being the case, it seems to me that the key question is: how committed are the SNP to having "more devolution" on the independence ballot? Practically speaking, would Salmond prefer (a) a simple yes-or-no independence referendum that is legally secure or (b) a multi-option referendum, including devolution-max, which would not enjoy legal security, and would almost certainly face legal challenges? While the First Minister's response was engaging, as he typically is when speaking extemporaneously, he neglected to furnish me with a direct answer to my specific question. 

Perhaps today's consultation document from the SNP government would suggest a clearer clue? From the legal point of view, the first introductory chapter of the document has the greatest interest.  Unsurprisingly, the Government remains bullish about the independence referendum's legislative competence. Even more strikingly, they distinguish between the legal uncertainty which might engulf an independence referendum - which if you read between the lines, they basically concede in this paper - and a referendum asking about "more devolution". 

1.6 What is not in question is the competence of the Scottish Parliament to legislate for a referendum about changes to the powers of the Scottish Parliament within the framework of devolution. Legislation to hold a referendum on "devolution max" for example (see paragraph 1.25 below), is clearly within the existing powers of the Scottish Parliament.

Little ink has been expended on this blog or in the press about whether a devo-max referendum would be within the parliament's legislative competence or not. Presumably, the Scottish Government view is that since devo-max doesn't "relate to" the Union, it doesn't share the legal uncertainty surrounding the competence of an independence referendum.  This isn't the place thoroughly to scrutinise this argument, but it is worth mentioning in passing that Schedule 5 of the Scotland Act 1998's list of reserved matters includes "the parliament of the United Kingdom", which is arguably implicated in a purposive interpretation of whether legislation "relates to" matters reserved to Westminster, making things rather more murky than this consultation document implies.

More immediately interestingly from a legal and political point of view, one conspicuous feature of this consultation is that the SNP have altered the proposed question.  Take a look at the draft ballot paper: "Do you agree that Scotland should be an independent country?" A clear, concise, unambiguous question. Welcome for it. What is significant - very significant - is how and why the proposed question has changed since the party's first term in office in Holyrood.  Back in 2005, the SNP were proposing to put the following referendum ballot to Scots: (Annex B)

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.

OR

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.

An ugly, wrangling, lawyerly read, is it not? Befuddling, circuitous? Why do you think this was the case? Was it simply because Alex Salmond was keen on the language of negotiation, or feart about the words "independence", or "Union"? Not a bit of it. It reads like the work of a tortured pettifogger because the way this question was framed was almost entirely driven by legal considerations. Specifically, the Scottish Government knew and knows that the Scotland Act 1998 makes things tricky, and it was always going to be problematic to propose an independence referendum question which would not "relate to a reserved matter", when the Union and the Westminster parliament are explicitly reserved. The Scottish Goverment concede as much in paragraph 1.5 of today's consultation:

"The Scottish Parliament has the power to legislate for a referendum as long as that would not change any reserved law or relate to those aspects of the constitution which are reserved by the Scotland Act 1998. The referendum question proposed in 2010 was carefully phrased to comply with that requirement." (my emphasis)

If the "negotiations" question was posed that way because of legal considerations - why are the SNP now proposing the straightforward question that jettisons all of the cavil and conditionals which surrounded their early draft? Legally, nothing has changed. Holyrood today, in January 2012, has all of the powers it had when the "negotiations" question was framed early in the first term of the SNP minority government, and all of the limits to its powers, which generated that first, prolix referendum proposal. 

On their own terms, despite their surface confidence and Alex Salmond's recent jurisprudential bafflegab, the SNP are basically conceding Holyrood does not have the power, at present, to pose a clear referendum question on independence. In that context, for them to propose a novel, direct question presupposes that the Scottish Government will cut a deal with Westminster on a section 30 order, which will dash the hopes of that monomaniacal Unionist litigant who has been haunting my thoughts this many years. Without such an order, on the Scottish Government's own view, they couldn't ask Scots if they "agree that Scotland should be an independent country?" This consultation assumes a deal will be made.

That being so, it is urgently relevant and interesting that the coalition seem to be intent on excluding any devo-max question, all or nothing. It may be that Michael Moore and his coalition cronies may be convinced to eliminate the draft s30 order's "one question" requirement, allowing a "more devolution" question to be put.  That is a matter of resolve on their part. Assume, however, that collectively the coalition proves steely, and insist on a single question on independence being put if a s30 order is to be made. The question I asked Salmond yesterday night stands. Do you want a legally secure referendum on a clear independence question, or a multi-option referendum including devo-max which will be forced to ask an obscure question on independence negotiations, apt to bamboozle everyone, and susceptible to legal challenges?

28 comments :

  1. Very interesting analysis, thanks.

    It all sounds like typical Salmond to me - assume that agreements have been made even though they actually haven't.

    But at least it gets us to a straightforward and simple question, which, as you say, is much better than the previous proposal filled with legalese.

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  2. I reckon a deal pretty much has been made.

    From an initial glance at the consultation paper there is not a lot about Devo Max in it.

    I think they have said that they have the power to hold a referendum on devo max without the cooperation of Westminster because they are not completely ruling that out if the independence referendum fails.

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  3. Both LPW and I immediately noticed the significance of the change to the proposed question, and then promptly interpreted it in exactly opposite ways :D

    http://wingsland.podgamer.com/?p=14011

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  4. Could it be that the question has changed so that the prospect of a legal challenge becomes almost inevitable?

    In other words, Salmond is inviting challenge and delay, target 2016 elections.....

    ....look maw, they wulny let me huv ma referendum...

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  5. LPW - while in the arcane world of jurisprudence your ever grinding smaller of the question may make sense. The political reality is the current the Unionist argument us driving more folk into the yes camp north of the border.

    It does not matter which sort of referendum is held because a yes in either is a yes because the sovereign Scottish people say it is. Whether the decision made by the Scottish people is contrary to section 5 or 30 is moot.

    I would still question how Westminster can claim to hold any position on Scottish sovereignty when Mr Cameron admitted during PMQ's the Scottish people are sovereign. Given that to be true in both 2010 and 2011 the sovereign Scottish people failed to vote for the 'coalition' and voted for Labour to stop the Tories and in the light of Gordon Brown's huff with the Libdems dumped both Labour and the Libdems in 2011.

    Under the UN Human Rights Charter the sovereign people of Scotland have the right to hold a referendum on independence with out interference from the power they seek to leave and again makes Westminster's meddling highly suspect as signatories to this charter.

    If you step outside the small world of English Jurisprudence and the Westminster constitutional morass you will find there are as many Treaties and Accords signed up to by Westminster whose present approach to the Scottish referendum is in breach of(Helsinki Accord, Treaty of Vienna).

    In Westminster's attempts to force a section 30 decision it would not be hard to claim interference in the substantive question of the referendum by Westminster as defined by the UN Human Rights Charter.

    I fail to be convinced by your 'Salmond does not know what he is doing' line as the while the process is unravelling it is his opponents who appear confused and bemused and not the SNP.

    Salmond has played a canny hand so far, not brash, not smug but steady as she goes. The SNP are listening in a finely tuned manner to what the Scottish people rather than the chatterati in the media are saying. Hence them now questioning whether they want to be full members of the EU or not and side with Norway and Switzerland in EFTA.

    If Westminster are daft enough to try and stifle the referendum with legal conditions via s30 orders, as happened in 1979, then they will hand the SNP their victory on a plate. Steele, McLeish and Chisholm have warned Westminster in print and by interview and the Scottish Tory MSPs (outside of Ruth Davidson World) consider the failure to allow a Devo max option tantamount to their Scottish suicide note.

    While Westminster would like to turn this into a constitutional 'Jarndyce vs Jarndyce' I suggest their bluff would quickly be called by an international community sick of the remnants of British Empire whose vested interest it is to help Scotland.

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  6. LPW - while in the arcane world of jurisprudence your ever grinding smaller of the question may make sense. The political reality is the current the Unionist argument us driving more folk into the yes camp north of the border.

    It does not matter which sort of referendum is held because a yes in either is a yes because the sovereign Scottish people say it is. Whether the decision made by the Scottish people is contrary to section 5 or 30 is moot.

    I would still question how Westminster can claim to hold any position on Scottish sovereignty when Mr Cameron admitted during PMQ's the Scottish people are sovereign. Given that to be true in both 2010 and 2011 the sovereign Scottish people failed to vote for the 'coalition' and voted for Labour to stop the Tories and in the light of Gordon Brown's huff with the Libdems dumped both Labour and the Libdems in 2011.

    Under the UN Human Rights Charter the sovereign people of Scotland have the right to hold a referendum on independence with out interference from the power they seek to leave and again makes Westminster's meddling highly suspect as signatories to this charter.

    If you step outside the small world of English Jurisprudence and the Westminster constitutional morass you will find there are as many Treaties and Accords signed up to by Westminster whose present approach to the Scottish referendum is in breach of(Helsinki Accord, Treaty of Vienna).

    In Westminster's attempts to force a section 30 decision it would not be hard to claim interference in the substantive question of the referendum by Westminster as defined by the UN Human Rights Charter.

    I fail to be convinced by your 'Salmond does not know what he is doing' line as the while the process is unravelling it is his opponents who appear confused and bemused and not the SNP.

    Salmond has played a canny hand so far, not brash, not smug but steady as she goes. The SNP are listening in a finely tuned manner to what the Scottish people rather than the chatterati in the media are saying. Hence them now questioning whether they want to be full members of the EU or not and side with Norway and Switzerland in EFTA.

    If Westminster are daft enough to try and stifle the referendum with legal conditions via s30 orders, as happened in 1979, then they will hand the SNP their victory on a plate. Steele, McLeish and Chisholm have warned Westminster in print and by interview and the Scottish Tory MSPs (outside of Ruth Davidson World) consider the Tory Party's failure to allow a Devo max option tantamount to their Scottish suicide note.

    While Westminster would like to turn this into a constitutional 'Jarndyce vs Jarndyce' I suggest their bluff would quickly be called by an international community sick of the remnants of British Empire and in whose vested interest it is to help Scotland.

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  7. Braveheart - no it couldn't. Lol.

    I think after the first few weeks the SNP will go fairly quiet on the publicity front - while being very busy with meeting key people and organisations in private. That is because the SCVO/STUC have asked for the political rammy to stop for long enough for them to consider their positions and come up with proposals.

    Before that happens however there will be a debate tomorrow asking MSPs to re-affirm their support for the Claim of Right. While this has absolutely no legal meaning (in my opinion) it has quite a lot of political meaning and it will require Labour and the Lib Dems in particular to frame their responses bearing that in mind. We may even get a period of quiet while they consider their positions as well, who knows??

    I found it rather amusing that Michael Moore has had to postpone his meeting with Alex Salmond because he has chicken pox. But I would guess the actual details of these meetings are probably worked out by civil servants beforehand anyway so they probably already know what deal has been reached.

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  8. Peter,
    I think the political position is clear: if the people of Scotland vote in sufficient numbers in a fair and legal referendum, then "independence" there will be.

    But that means not just any old kangaroo referendum. It must be clear, honest and above board. Which means it must be legal, and accepted as such by all the respectable competent bodies that make such judgements, within the legal framework that exists now, i.e. in UK and Scottish constitutional law and international law.

    If it isn't, clearly, all of these things, it will be challenged by someone or some body that seeks clarity/honesty/legality.

    And that means delay, obfuscation, uncertainty and all concommitant ills.

    Any reasonable person who really wants "independence" would go out of their way to ensure that their referendum was as unchallwengeable and as legally watertight as humanly possible.

    Refusing to listen to advice, disdaining offers of help, insulting the opposition and the (potential) appellant and snarling at the judges is not usually considered a route to a favourable verdict.

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  9. What are you talking about Braveheart?

    You seem so disappointed one could almost suspect that you were planning to take the SG to court yourself. Lol. I bet you were.

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  10. I think the question is completely wrong, and it is so obvious that a journalist has written it.

    "Do you agree?" is a LEADING question. You cannot ask that in a Referendum. It is unfair and open to misinterpretation.

    From a professional point of view (I used to train interviewers), leading questions should never, ever be used unless you are a journlist.

    In using that question, is Salmond opening the certainty of a legal challenge about the Referendum, in that the SNP are trying to deliberately influence the vote? And in doing so, could that void any result?

    Perhaps being overworried and cynical, but I cannot believe the wording that has been used. Has McAlpine struck again?

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  11. As far as I can recall we AGREED to the establishment of a Scottish Parliament, & we AGREED to give it tax varying powers when we voted yes yes.

    That was a Westminster run referendum so I don't see how they can object to the word now.

    Think Eck has played a blinder here. He has seized on the offer by Westminster to enable a legal referendum, & left the question of the third option to the devolutionists to work out. If Cameron vetos that then he will be falling out with the STUC amongst others & how are Scottish Labour going to support him doing that?

    Fun & games ahead, but Eck has secured his position so he can afford to sit back for a bit.

    Agree with other posters - including an affirmation that Holyrood can organise a referendum on Devo Max is plan B if plan A fails. Typical cheek, but you have to laugh.

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  12. Good analysis LPW particularly on the question change where I agree with your analysis. I think this change means the issue will be over the negotiation of the s30 order. As it stands that question if passed by the Scottish Parly would be challenged - successfully I think - in court. Not just the Supreme Court but I think in Court of Session too. But with legal permission essentially granted from Westminster it would be secure legally.

    On Peter Thomson's point on International agreements it is a little bit abstract. Scots Law does not recognise International Treaties as a source. UN Charters are signed by the head of state not law makers. It is a convincing rhetorical argument but hard headed judges whether in Edinburgh or London would make short shrift of it I think.

    On Barbarian's point using a leading question isnt a ground for legal challenge if the Scottish Parliament backs it and Westminster has ceded the power under the Scotland Act 1998.

    Albeit because of the status of an ASP it could always face legal challenge. I think one on the basis of the nature of the question in that sense would last about 20 mins in court.

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  13. We did "agree" in 1997.

    I agree that there should be a Scottish Parliament/I do not agree that there should be a Scottish Parliament.

    I agree that a Scottish Parliament should have tax varying powers/I do not agree that a Scottish Parliament should have tax varying powers.

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  14. Lieutenant Boruvka26 January 2012 11:50

    You keep banging on about the law Mr Worrier. "ooh, this should be legal" here and "ooh, we don't want a referendum to be delayed because of the courts holding up a possible challenge" there. The Scottish people are sovereigns. FACT. It says so in one of the Claims of Right. Newsnet says so in one of its articles. Try to disprove that Mr Worrier. You can't. IT IS FACT. Second, the courts are filled with judges. FACT. What do the courts have to do with law and politics? Most of the judges have been to England too at Oxford and Cambridge. FACT. How can we expect them to decide cases if they are so clearly biased. FACT. And you are ignoring human rights. Scotland is oppressed. FACT. We can't decide what we want. FACT. Human rights from international law lets us do stuff without England telling us what to do. It lets us vote and decide stuff ourselves. If you had your way with the whole law thing we would not have votes because votes about Scotland are only allowed because of international human rights. FACT. I saw the stuff above about Vienna and Helsinki too. That's right. I know England hasn't signed the Vienna thing because wikipedia says. But we should just say that Scotland signs it. And if we do that and with human rights that will mean we can just have the referendum without worrying what the courts say. No wonder Alex Salmond didn't answer your question. You are just obsessed about doing things lawfully. But what about doing what is right?

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  15. From a political point of view, Salmond is quite right to treat this as if a Section 30 is in the bag. If prospective voters buy into that notion, which is likely (repetition and confidence being nine tenths of the argument), you can imagine how they'll react if it's proclaimed at the last minute that Westminster is preventing the referendum from going ahead in any legally meaningful sense.

    That aside, there is a deeper question here, and that is whether law, in the wider sense, can be imposed upon people (en masse) against their will, or whether, rather, it derives from them - the essence of sovereignty.

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  16. Groundskeeper Willie26 January 2012 16:39

    LPW

    Why are the SNP so keen to include a question on devo max?

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  17. The SNP aren't keen to put a question on devo-max onto the ballot paper. All they're doing at the moment is allowing all the fuzzy-thinkers who imagine it would be a good idea to get used to the notion that its appearance on a ballot and, a fortiori, its execution, depends on Westminster and the Unionist parties. Thus it will never happen. Having got their fuzzy little heads round that it is likely the rational proportion of the devo-max brigade will vote "yes", in the dawning awareness that voting "no" is tantamount to pinning a sign to your back announcing "Take me, Tory boy, I like it from behind".

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  18. Legality does matter because quite simply councils won't conduct polls unless they are legally authorised. I have heard people say oh if it's not allowed legally we'll just go ahead and organise a referendum ourselves. With respect, that is mental. I have also heard people complain about the extra money that council employees get for acting as Returning Officers. Well I think they earn that money because organising the efficient distribution of postal & proxy votes, organising polling day and running an efficient count is one hell of a job and it would be the nightmare of all nightmares to have to do that without local authority resources and experienced staff. In my opinion it probably couldn't be done and I am quite positive that there is no fallback position in SNP Headquarters to take such a mammoth task on.

    But while legality is important it is not the horse, it is the cart. The horse is the political process. Maybe people can't see all the political trade-offs that are going on in the same way that they can't see the wood for the trees. There is an immense amount of game playing going on but the important point is that the UK Government have agreed to make sure the referendum can't be legally challenged. So it really isn't going to be. The SNP may have to make another concession or two but the main goal is won. We have the date and we will have the legal authority.

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  19. As for the never-ending Devo Max argument, I think most SNP folk are getting a bit sick of this.

    It's not our idea, our idea is independence.

    But if people want to put together a proposal and it has widespresd support then we are not going to tell them to sod off as Labour appear prepared to do.

    People now have three months to get that sorted out. There is, to quote Martin Sime, a fast-moving concensus that Scotland needs to have control over at least social security, unemployment benefits and housing benefit asap. We would, of course, have that with independence, along with control over most other policy areas.

    If Labour can't support the immediate devolution of all welfare policies then we will all know where they stand and we will know that their opposition to the impact of Tory welfare reforms in Scotland is only skin deep.

    The real questions on Devo Max are not for the SNP to answer you see.

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  20. Groundskeeper Willie27 January 2012 08:57

    What do the SNP do if a straight yes/no referendum returns a no vote?

    How long do they wait before demanding another referendum?

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  21. "to ask an obscure question on independence negotiations, apt to bamboozle everyone"
    LPW isn't that what you did?

    We'll see those in thrall to legal niceties and precedent on board as fellow travellers of a government without mandate, as it tries to legislate its way out of trouble.
    Fearful and contemptious of election results, mindful of revenue streams and clueless as to political economy.
    It's for a better life economically, socially and politically that independence is sought.
    Otherwise, it's emigration.

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  22. "What do the SNP do if a straight yes/no referendum returns a no vote?

    How long do they wait before demanding another referendum?"


    6 years, two months, 11 days, and an hour and a half. Next question?

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  23. I have to disagree with RevStu's considered opinion. The answer is at least seven years. And how do I know that? The Good Friday Agreement says so.

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  24. Groundskeeper Willie27 January 2012 23:38

    'Alex Salmond yesterday admitted that a second independence referendum would not be held for "a generation" if the SNP failed to secure a "yes'' vote first time around'

    http://www.heraldscotland.com/independence-referendum-is-now-once-in-a-generation-1.841914


    Please do not contradict The Great Chieftan.

    If a referendum can only be held once in a generation then it's clear why the SNP want to include a question on devo max.

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  25. A mpre pertinent question would surely be what will Labour, the Lib Dems and the Tories do if Scotland votes yes? Will they continue to exist as parties and will they stand for election? And if so will they stand on a platform of reversing indepedence or will they accept the outcome of the referendum and put forward polices for an independent Scotland?

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  26. Groundskeeper Willie28 January 2012 10:01

    Indy

    Neither side is going to accept the outcome of the referendum, whatever the politicians and political parties say or do, particularly if it's a narrow margin on a poor turnout.

    If it's a no though, The Great Chieftan will be a lame duck. I'm not sure how much longer he'll last after that.

    Hence the attraction to him and the SNP of having a devo max question.

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  27. Mr Groundskeeper - it maybe true that neither side will accept the verdict, but in the end, to deny it and even challenge it would lead to that party getting a kicking.

    I don't think Salmond would quit nor be seen as a lame duck. He said he would pose this question to the Scottish people to decide - if they answer no, then that will be that for a wee while till it comes up again - which it will. The people who decide if his party has to leave government will be the Scottish electorate. If he loses that vote, then his position will become untenable as it proved for Gray, Goldie and that lib Dem guy - can't recall his name now.

    If the vote is yes and it is convincing enough - then trust me on this. No unionist party that tries to challenge this will be electable for generations. Just ask the Tories - they know all about being regarded as pooh on the heel of Scotland's shoes.

    If labour wants to go out like that - then hell mind them.

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  28. Salmond's actual quote:

    "You can only have another referendum if the people so allowed in a future General Election. In my view it's a once in a generation thing. There was a referendum on devolution in 1979 and then the next referendum on devolution was in 1997 and that seems to me to be the overwhelming likelihood."

    In other words, you can have another referendum *any time the electorate gives you a mandate for one*, although Salmond personally thinks an 18-year gap is about right.

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