UK Ministers put the Union "to the touch, to win or lose it all"?

Popular legal politics is a tricky business. Without denigrating the wisdom of crowds, or underestimating the faculties of the public, you can comfortably bet your last shilling that the majority of the population won't have read the law you are proposing or opposing.  Politicians and press - sometimes understandably, sometimes self-servingly and often just ignorantly - gloss the issues, talk about some aspects and not others, peddle particular images and endlessly repeat comprehensible scenarios, to demonstrate what their laws will do.  Whether or not they align with a proper interpretation of the underlying law, these images gain and maintain far more purchase on the public imagination.

Days before Christmas, the BBC brought us rumours from Whitehall that the Westminster government was likely to use powers conferred under the Scotland Act 1998 to eliminate the very real legal dubiety surrounding Holyrood's power to hold any referendum on Scottish independence under the law as it stands. However you might hope or believe such litigation would be resolved, it has been clear for a good while that any such challenge would very likely delay the referendum being conducted - potentially for years, if unremedied before Holyrood legislated for a referendum to take place. Just last week, I welcomed this development as a way of ensuring the referendum didn't get waylaid in the courts, but suggested that things would get politically...

"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".

As it happens, I picked the wrong Machiavel, and it was actually David Cameron who clumsily and predictably lost sight of what ought to have been the government's essential goal - ensuring the referendum could take place without unnecessary judicial deliberations - and tried to weasel in give the heroic impression he intended to impose conditions, play the tough guy, and pander to cock-eyed Cochers and his ilk by "taking the fight" to the perfidious Nats. Thanks in great part to Nationalist unwavering insistence that they have the power to call a referendum under the Scotland Act as is, aided and abetted over the years by pronouncements from Wendy Alexander and the Prime Minister himself, hitherto, the Scottish public discourse has been almost exclusively dominated by the idea that law presents no impediment to Holyrood holding an independence referendum on its own motion, no bother. For years, most have shrugged or poo-pooed the importance of the legal arguments, if they were even aware of them.  As such, is it surprising that Cameron's sudden intervention was understood in the hostile way it was, stirring up old political sensations? Absent any consciousness that technical legal fixing was called for, it looked like high-handed and presumptuous meddling. As the miffed Alex Massie had it...

"Cameron says he does not wish to "dictate" anything to Scotland. Nothing, that is, except the timing and questioning of the referendum to determine the country's future."

Given today's statement in the House of Commons and consultation document from the Secretary of State for Scotland, Cameron's gambit looks doubly ill-judged.  Instead of fierce imposition of a referendum question hostile to nationalism, to be asked in the next year, Moore coolly outlined a consultation, talking about moderation, sense and constructive co-participation in a serious process.  For the first time, Michael Moore unflinchingly outlined Her Majesty's Government's belief that Holyrood is legally incapable of holding an independence referendum. His reasoning is essentially identical to that I outlined in this blog. So what does he propose? Moore is minded to use a s30 Order under the Scotland Act 1998 to provide for a referendum on Scottish independence to take place. Before the final terms of such an Order are adopted, he intends to hold a consultation on "Scotland's constitutional future", closing on the 9th of March. The full document he has produced can be consulted here, including the draft Order across pages twenty two and twenty three. For brevity's sake, I won't discuss all of its contents now, but will instead focus briefly on one - tactically fascinating - element of it.

Perhaps the most striking feature of this draft Order is that it would explicitly rule-out the Scottish Government asking any "devo-max" type question alongside "full independence". How precisely? The Coalition's proposed s5A amendment to Schedule 5 of the Scotland Act reads as follows:

“5A.—(1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met.
(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision made by the Parliament.
(3) The date of the poll at the referendum must be no later than ***.
(4) There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.
(5) The persons entitled to vote in the referendum must be the persons who would be entitled to vote in an election for membership of the Parliament—
(a) if one were held on the date of the poll at the referendum, or
(b) if one were held on that date but alterations made in a register of electors after a particular date were disregarded.
(6) The referendum and arrangements in connection with it must be in accordance with Part 7 of the Political Parties, Elections and Referendums Act 2000 (referendums) as if the referendum were within section 101(2) of that Act, subject to any modifications specified in subordinate legislation.”

That last section refers to the participation of the Electoral Commission in the referendum process. This includes extensive provisions potentially placing limits on the amounts of money participants can throw at the referendum. For devo-max, and those keen on the idea of having it on the ballot, section 5A(4) is crucial. Assuming agreement where none necessarily exists, it would obviously prove invidious to ask the Scottish public  "Do you want independence or devo-max?". Any referendum which countenances the inclusion of a "devo-max" type question would require at least two questions, or one question and three options: independence, devo-max or the status quo. This draft Order explicitly seeks explicitly to exclude any poll structured either of these ways.  "There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses".

For those who have argued that defining this centre-ground of more devolution would vitally determine the outcome of the referendum, increasingly, it appears as if we may find ourselves presented with an either/or question. Independence or nowt.  As I have argued before, how you respond to this predicament likely depends on whether you regard independence as unwinnable at the present time, or whether you believe folk can be persuaded by the right configuration of advocacy and luck. If the former, you'll be cursing blackly and hoping Holyrood repel whatever final Order Moore comes up with, and "more powers" somehow finds its way onto the SNP's ballot. For those, by contrast, who suspect that having devo-max option on the paper diminishes the appeal of independence - and there is some polling which supports this analysis - the prospect of a clear yes-or-no referendum is more liable to be attractive.

Not so, one imagines, for those folk in Labour, Liberal and Tory parties, who saw the promise of making a positive "devo-max" Unionist case as the best basis for arguing against Scottish independence. Instead of cataloguing the terrors which an independent Scotland would be assailed by, dominated by the negative Grinchly campaign spirit of "No", Malcolm Chisholm and others were clearly beginning to envisage articulating a median position to rebuff the potential that Scotland votes to become independence. Perhaps the most significant aspect of today's statement is that Moore is proposing to deprive them of that argument, relying instead on a "positive case for the Union" to be made without suggesting any positive changes to the Union. While the consultation may well vary the final terms of the Order, it presents a real tactical challenge to Unionists who hoped to oppose the change the SNP is proposing with meaningful change of their own.

On another interpretation, Moore's desire for binary resolution of Scotland's constitutional future could be seen as a decidedly risky expression of  confidence that the case for the Union remains "axiomatic" in Scotland. While his tone today was temperate where Cameron was provocative, it may well be that the improbable Michael Moore's quiet intervention will be responsible, for Unionists and Nationalists both, for making this a referendum ruled by the gambling spirit of James Graham, the 1st Marquess of Montrose: "He either fears his fate too much, Or his deserts are small, That puts it not unto the touch, To win or lose it all..."