Michael Moore's Machiavelli impression?

Whether sweeping up spent prickles from your tree, or avoiding garotting yourself as you tidy away the tinsel, the inevitable post-Christmas tidy-up tends to unearth things overlooked or forgotten during the Festive season. As it is for the mouldering mince-pie, so too with British constitutional politics.  Just before Christmas, the BBC reported that "Westminster could hand Holyrood the legal power to run a Scottish independence referendum" by employing a "special clause" in the Scotland Act 1998. Unhelpfully, this Whitehall scuttlebutt was reported in the same breath as House of Lord amendments to the Scotland Bill were discussed, creating a potentially misleading impression that the two processes were the same. They're not. 

Actually, there is nothing particularly "special" about section 30. It allows UK ministers to alter the list of matters reserved to Westminster's exclusive competence by means of a statutory instrument - an Order in Council. This ability to transfer powers to and from Holyrood is autonomous from the Scotland Bill, presently at its committee stage in the House of Lords. While a section 30 order does not require full legislation, its terms would have to be agreed to by both Houses of Parliament and by Holyrood.  According to the Scotland Office, the first decade of devolution saw 168 orders of this kind made. As usual, the story revealed the confusing range of simultaneously-held ideas about the legality of an independence referendum, exemplified to a great extent by this befuddled New Year's disquisition from Herald columnist Andrew McKie, who writes...

"The Scottish Secretary, Michael Moore, used his New Year message (is the idea that there should be such a thing not ludicrously self-important?) to press the Scottish Government for details. He's right to do so, both from the point of view of the political strategy of the Unionist parties, which is to get the referendum held as soon as possible, while the answer is still likely to be "No", and in the strict constitutional sense that it's in both Westminster and Holyrood's interests to get the wording of the question and the legalistic niceties of whether the vote is binding tidied up beyond dispute, so that we can all know what we're voting on. 

But the Nationalists are quite right to point out that, though important, much of this is hair-splitting. It is politically impossible to imagine that a decisive vote for full independence would not lead to just that, or to contest the right of the Scottish people to conduct such a vote, even if it is technically a reserved power and regarded as merely 'consultative'."

If Holyrood has the power to hold a referendum on independence, why would London be handing it to the Scottish Parliament? If, by contrast, Holyrood didn't have the legal authority to organise a plebiscite, as the story presupposes, why the devil aren't journalists asking more searching questions about the dominant assumption that no legal problems exist, and Holyrood's proposed referendum is clearly legal? Moreover, if there is a potential legal problem, why do folk seem to think it is a mere "technicality" which Salmond could casually ignore if so minded? Isn't that a rather concerning notion to promote in a democracy of laws? Remember Cadder. The issues in the two potential controversies obviously differ, one concerned with the fundamental rights of criminal suspects, the other with Holyrood's ability to legislate when "reserved matters" such as the Union are in play.  Despite this, the UK Supreme Court's decision in Cadder ought to be politically instructive. Holyrood's legislative capacity is limited by other laws, will be subject to the review of our courts, and its Acts can be stayed, stopped and overturned if they cross the thresholds of their powers.  Hardly "mere" technicalities.

Yet another familiar but utterly perplexing line of argument suggests that only Westminster can hold a "legally binding" poll, as opposed to Holyrood's merely "consultative" referendum, and should do so. But stay a moment there. If Westminster is a sovereign parliament, free to change any law it wishes and unfettered by its own past Acts, in what respect can any referendum passed by it be said to be "legally binding"? Binding who, and to what? Michael Forsyth suggested to the BBC that...

"Who actually runs it is irrelevant. What matters is that we have a properly conducted campaign, that we have it properly supervised by the Electoral Commission, and that the result is binding, so that if people vote for independence that is exactly what will happen, and that we end this uncertainty which is so damaging to Scotland's financial interests as soon as possible."

Sleekit bunkum. If you subscribe to the constitutional theory of a sovereign parliament, there can be no such thing as a legally binding referendum.  Of course, that is not to say de facto that any referendum result would be ignored, or could be as a matter of democratic practice; merely that there is no space for de jure binding referendums in the British constitutional tradition. So what do folk mean by a "binding" vote anyway? An alternative way of interpreting the idea - as McKie half-seems to - envisages a referendum as being "binding" when its conduct is buttressed from any legal challenge by any member of the public on grounds of legislative competence. However, on this interpretation, the core distinction between the "binding" and the "merely consultative" becomes basically unintelligible. To talk about a "binding" Westminster referendum in this sense, and contrast the idea with Holyrood's merely "consultative" vote, is as fishy as a blushing mullet, and a nonsense pretext for Unionist politicians to presume to fiddle with the referendum's timing and question.  But then, what should one expect from the ever-serpentine Forsyth?

That said, it isn't surprising to hear that London are considering their opinions to prevent the referendum being challenged, likely to their own palpable disadvantage. I gather that similar discussions have been held behind the arras of St Andrews House too. In public at least, the SNP has clearly set its face against conceding anything less than the Scottish Government's perfect legal competence to hold the independence referendum.  A brave face, but unconvincing for all that. Whatever one's view about how any court case on the referendum might finally be determined, it is clear that under its existing powers, Holyrood is not able to ask a "clear yes or no" question on independence, nor will a referendum asking its current, circumlocutory question about negotiating "a settlement with so that Scotland becomes an independent state" - be safe from legal challenge by a lone but committed litigant, with money to spend and a will to spend it.  Neither of these facts are ideal, and a section 30 order could eliminate both the ponderousness of the proposed language and the connected and substantial risks of litigation and delay.

I have previously suggested that the same task might be achieved by laying amendments to the Scotland Bill. However, this relies on the assumption that Holyrood will give its legislative consent to the draft law: a conclusion that is far from foregone.  As Alan Trench has long argued, a section 30 order has the benefit of isolating the referendum issue from broader questions of reform, and Holyrood's financial powers, and the controversy engulfing the latter. However, if UK ministers prove muddled in their goals, it is easy to see how a section 30 order might cause its own constitutional stramash.  If treated solely as a simple instrument to eliminate legal doubts, a straightforward and unqualified section 30 order ought to be uncontroversial, both in Holyrood and Westminster. A few irredentist, gadfly Unionists in London might try to cause a bit of mischief, but I see no reason why such stubborn outcrops of resistance could not be overcome.  

Things get spicier if Michael Moore fancies himself for a cunning so-and-so, and he and his colleagues lose sight of their primary aim, and try to use a section 30 order to politick in their own preferences for an early referendum poll, by time-limiting the referendum competence to 2013, 2014 or the like.  Nationalists are liable to contend that for the Secretary of State for Scotland to do so would be shameless interference with a democratic mandate-bearing Scottish Government, which ought to be able to hold the poll when it damn well pleases, according to the loose timetable it presented to the Scottish public. Assuming they feel strongly enough about the timing issue, we might envisage the SNP-dominated Holyrood refusing to consent to any Order in which the clock ticks on independence, even if it put the legality of its referendum questions beyond doubt.  What then? Can you imagine a rebuffed UK ministry bringing back another Order, without the time-bar? 

Without the certainty a section 30 order could provide, the SNP would be in the same position as they are now, having to rely on its shoogly legal powers under the current incarnation of the Scotland Act.  Clumsily, predictably, UK ministers would simultaneously have failed to achieve their essential goal of ensuring the referendum can take place without unnecessary judicial deliberations and secured no apparent political advantage in the process.  Certainly, they might try to colour the Nats as stubborn and unconstructive - but if UK ministers are primarily feart of the damage a single Unionist litigant might to do their cause, they'd do well to swallow any conceits they may have of playing Machiavelli, and make that simple, clear and unconditional section 30 order they've been gossiping to the BBC about.