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...