5 April 2012

What's missing, Mr Moore?

A slim volume of thirty two pages, yesterday’s publication of the Scotland Office response to its consultation on Scotland’s Constitutional Future” hardly ignited the political firmament. Its soggy squibliness is partly attributable to the indeterminacy of the thing. The first source of this indeterminacy is the ongoing, parallel Scottish Government consultation, which will only conclude on the 11th of May.  The second source originates in the Scotland Office paper itself.  The UK Government’s reply to the consultation material collected is less than a page and a half A4, and fails to address vital questions of detail (p. 23 – 4) posed by his own consultation.  I’ll enlarge on these in a moment, but first a condensed account of what this condensed document has to say.

Summarised, Michael Moore’s response says “Hooray! What luck. Most of our consultees agree with us, for the reasons we gave.  Here’s a chocolate box selection of quotations borrowed from their submissions, collated to reinforce our pre-determined plan of action. Aren’t we clever dicks?” Or, as the Scotland Office paper puts it, a “resounding endorsement” of the coalition’s preferences. On the major issues raised by the consultation, these include:
  1. On method of ensuring a “legal referendum”, the UK Government concludes there is “very strong support” for the proposition that a section 30 order under the Scotland Act 1998 represents the best method of putting Holyrood’s legislative competence to call a referendum on independence beyond doubt, rather than amending the Scotland Bill in Westminster. 
  2. On the number of questions to be posed, that the referendum should pose a single question on independence, and no additional questions on further devolution.
  3. On timing, that “there is no good reason to delay the referendum beyond autumn 2013”.
  4. On oversight, that “the Electoral Commission should have a role in the referendum and in particular a full statutory role in reviewing the referendum question”.
  5. On the extent of the referendum franchise, the UK government “believe that an established franchise should be used” and that “the debate about extending to vote to 16 and 17 year olds should be conducted separately and that any decision should be taken for all elections and not for one single vote”.

Consultation gaily concluded, Moore writes in his foreword:

“This consultation was not about Scotland’s place in the United Kingdom.  That is a debate that we must come to quickly. But before we do, it is critical that we make sure that the issue of Scotland’s future is decided in a way that people on all sides of the debate can agree is fair and legitimate”, writes Moore, who now proposes “to arrange further discussions with the Scottish Government to agree the terms of an order to be approved by both Parliaments to deliver a legal, fair and decisive referendum in line with the results of our consultation” (p. 5) (my emphasis).

But what’s missing? Moore’s initial consultation included nine substantive questions, the ninth of which was – “What are your views on the draft section 30 Order?” On this sticky topic, the UK Government’s response is totally mute. Nary a sentence, word or clause appears about what respondents made of Moore’s provisional proposal. Not a crotchet. But why is this absence significant? By way of reminder, this draft order (set out in Annex A of the consultation paper) proposes that a referendum on independence would temporarily not be treated as a reserved matter (and so outwith Holyrood’s powers) if and only if the following conditions were met…

  1. Referendum polling day to be no later than a date to be specified in the order.
  2. That “there must be only one ballot paper in the referendum, and the ballot paper must give the voter a choice between only two responses”. i.e. a single question on independence to be asked, with binary options before voters.  No sleekit preference schemes incorporating devolved options in addition to independence permitted.
  3. That the referendum franchise be limited to those eligible to vote in Scottish Parliament elections. No luck for the middle teens; and
  4. That the Electoral Commission be involved in the oversight of the process.

What remains entirely opaque in the UK Government paper published yesterday is what precise limits they will seek to impose on Holyrood – and intend to solicit the Scottish Government’s agreement to.  Remember that the section 30 order is a statutory instrument, cannot be amended but only accepted or rejected once ministers have laid it before parliament, and it will have to secure the agreement both of Holyrood and Westminster, if its changes are to come into force. If the UK government's overriding aim is to ensure that the independence referendum is free from legal challenges, they will therefore have to compose an order which the SNP are willing to accept.  And it is on this that the Scotland Office paper largely keeps its peace.

At no point, however, does Moore’s document distinguish between (a) UK government preferences given a free hand to appoint the referendum process as they'd like and (b) what strictures the UK government will seek to impose *ahem* negotiate – with Scottish Ministers, given the overwhelming democratic mandate of the latter to hold this referendum. It is one thing to say “I think the referendum should be limited to a single question on Scottish independence”.  It is quite another to say “Let’s frame the temporary power to hold a referendum in such a way that its whole legality hinges on asking one question, by a time of our choosing - and if you try to ask two or dawdle, you’re buggered and your referendum unlawful”. To contend “I think we should have the referendum in 2013” is resolutely not the same proposition as “we’re positively requiring you to hold the poll by 2013, and anything outside of that is illegal”.

I dare say a fair few people might prefer a single question being posed given the choice, but wouldn’t enthusiastically endorse the idea that Westminster should by permitted to dictate terms to Holyrood (or more precisely, cajole agreement out of them, using the threat of legal challenges to waylay any referendum which strays from the Tory lead coalition's inclinations about what the franchise should be, which questions should be asked, and when). It is that, rather than whether or not you agree with the UK government’s analysis, which matters about the section 30 order.

According the most recent Ipsos-MORI poll, 59% of respondents wanted to see two questions posed in the referendum, one on independence and a second on greater devolved powers (with large gender gap in support: 53% of Scottish men wanted to see more than one question posed, compared to 64% of women).

Given the relatively small number of responses received by the Secretary of State, it may well be that the body of opinion he successfully canvassed is perfectly content for such high handed impositions to be made by Westminster after only a charade of negotiation with Scottish Ministers.  It is not impossible that all 3,000 are untroubled that UK ministers are seeking to use legitimate considerations about the referendum’s legality and clarity as a naked pretext to substitute in their own preferences on questions, franchise and timing.  That may be so, but it isn’t a proposition I’d expect many Scots to sympathise with. For that reason alone, you might well think that the absence of any blot of detail from Moore on what his respondents thought about his draft order - and the referendum ligatures he proposes to knot Holyrood in - is not insignificant...


  1. It is clear that nearly a third of answers came from a preset 'fill in your name here' response on the Labour Party web site.

    Anas Sawar SLAB MP, the Lamentable's side kick in Scotland, tied himself up in knots over this t'other day to such an extent he contradicted himself during the interview (some more uncharitable folk are claiming Sawar was lying).

    With those at the heart of the Tory Party already having given up Scotland as lost to Westminster - is it that surprising that a Libdem fronted 'Save the Union' initiative is such a damp squib?

    Especially as the UK Government has no mandate on this issue as the referendum is the expressed will of the sovereign people of Scotland, in their legitimate parliament at Holyrood.

  2. The Scottish Government has a mandate.

    The UK Government has a mandate.

    The UK Government outranks the Scottish Government legally.

    The Scottish Government can claim democratic legitimacy.

    Nobody's right and nobody's wrong....

    A recipe for hard negotiation.

    And no whingeing please...

  3. "(some more uncharitable folk are claiming Sawar was lying)."

    There's nothing uncharitable about it, it's just a statement of fact. He was demonstrably, provably lying.

  4. "The UK Government has a mandate"

    Not for a referendum on Scottish independence it doesn't. It was elected on policies of absolutely opposing such a thing.

  5. Groundskeeper Willie5 April 2012 at 23:45

    From memory the SNP got 45% of the vote on a 50% turnout and their manifesto didn't include a two question referendum, nor having 16 and 17 year olds voting.

    Maybe they should just hold a referendum in accordance with their mandate.

    Btw are they still intending to ban anyone under 21 from buying alcohol from an off sales?

    Maybe they could have a referndum on that and include 16 & 17 year olds.

  6. @RevStu

    ""The UK Government has a mandate"

    Not for a referendum on Scottish independence it doesn't. It was elected on policies of absolutely opposing such a thing. "

    So the UK Government has a mandate ...

  7. The whole consultation process has turned into a shambles for both governments. The volume of responses is not exactly high either, considering the volumes you can get on a petition. Both consultations were designed to be self-serving for the politicians so they would have some more soundbites to bore everyone with.

    Outside of blogland, does anyone really care about these consultations? How many people actually knew the UK Government was running their own one? What Moore does or does not give out is irrelevant. The whole thing has turned into political pantomime yet again.

  8. Spot on. Certainly my own contribution (with Tom Mullen) was cherry picked so as to appear supportive of the UK Govt's position, when in fact its major thrust was to question their stance on the legality of a referendum and to argue that a s.30 order should not be used to impose conditions.

  9. I agree that this whole thing is a farce. I took part in the UK consultation with misgivings but certainly didn't think it was really a sort of opinion poll, with percentages now being paraded as if they mean something.

    It's probably fair that academics should be quoted (but not selectively) but I can't see how the opinions of the teacake guy or the butcher deserve any higher status than, for example my own, except that possibly I didn't agree with Dave, Nick and Michael.

  10. "So the UK Government has a mandate"

    No, any more than it has a mandate to declare war on Sweden. You appear to be mistaking "mandate" for "legal ability", which is a rather silly thing to do.

  11. @braveheart

    RevStu didn't get it for a change.

    That's his mandate - not to get it.

  12. Aileen McHarg,

    Shoddy stuff. Best I can discern, they Liberals and Tories and trying to pass off such conditions as "common sense" rules, rather than impositions, or constraints. I dare say one could come up with a justification for imposing them - but to pretend you are just a humbler empower of Holyrood when doing so is patent guff. The vital question, it seems to me, is how committed the SNP is to including a second question in the referendum. If they aren't bothered - it is easy to see agreement on the terms of a s.30 order being forthcoming. If, by contrast, the Nationalists in parliament are absolutely set on asking some sort of devolutionary question - well, then things get interesting and potentially politically explosive.

  13. LPW, the number of questions isn't a stumbling block as nobody wants the second question - it is, after all, just a ruse to raise the voters' expectations and have them dashed by Whitehall. The real difficulty with a Section 30 Order will be when Whitehall tries to impose its own timing on the referendum. I don't think Holyrood will countenance any such move.

    Perhaps the second question (which, remember, nobody actually wants) will be traded for an Autumn 2014 date?

  14. Just a very minor nitpick: the past tense of 'lead' is 'led'. (Also, Tory-led should be hyphenated.) (Sorry, I'll leave now!)

  15. Holebender said...

    LPW, the number of questions isn't a stumbling block as nobody wants the second question - it is, after all, just a ruse to raise the voters' expectations and have them dashed by Whitehall...

    It is an argument I've heard before. I'm just not sure it is terribly convincing that Alex Salmond's long-term kite-flying for a "more devolution" question amounts only to a ruse to concoct an image of London intransigence...