9 October 2012

Nationalists & Unionists: Putting it to the touch to win or lose it all...

Whether or not you think including a devo-something question in the independence referendum is a good idea, and I've swithered about that something fierce, it always seemed to me more likely than not that we'd end up with a single question poll.  

"Civic society" pro-devolution forces have proved not only weak, but more fatally, disorganised and untimely.  Instead of seizing on the SNP's election victory in May as a spur to activity, agitation and the programmatic formulation of a shared agenda and coalition, the dawdling pace which has been adopted by the pro-devolution advocates is startling.  The inclusion of a second question was always likely to be controversial.  Arriving at that debate six months late was never likely to strengthen the case.

And then there is the anticipated structure of referendums in the United Kingdom, which makes a second question so threatening to unionists of various stripes.  The Icelandic may be content to ask no fewer than six questions in their referendum on adopting a new constitution, running the gamut from general to specific political concerns.  In the UK, by contrast, all of the pressures are towards conciseness and posing limited number of questions, with a limited scope.  It is familiar commentary to say that we can't pose a devo-something question, because folk haven't yet coalesced around a text, and a proposal, which could be put to the Scottish people.  Should corporation tax be devolved, but capital gains not? Income tax, perhaps, but not Misuse of Drugs legislation, or fundamental rights protection? One obvious - but hitherto unthinkable - solution to the absence of agreement would be, like the Icelandic, to pose a series of questions on specific policy areas.  

Of course, that wouldn't answer the objection that Scotland cannot - or should not - unilaterally attempt to impose a federal structure on the rest of the UK, but might dispense with the objection that no sufficiently concrete devo-something proposal has been formulated ahead of time. And yet, and yet, nobody has seriously engaged with the possibility of posing more than two questions.  Accordingly, my observations of February still obtain, and weigh decisively against pro-unionists, keen to keep control over the UK constitution in parliamentary hands, accepting any second, devolutionary question:

"... given the pressures to ask concise referendum questions, practically, it will be exceedingly difficult to frame, never mind ask any devo-max question that doesn't borrow the Scotland Act's structure, enumerating reservations rather than powers to be devolved. Moreover, because of the pressures to ask short questions, tersely phrased, the inclusion of a devolution max question in any pre-legislative referendum would tend to discourage long lists of reservations, and promote much increased rather than more limited devolution.  As a pro-devolution Nationalist, this is a fact I can cheerfully endure, but is rather more difficult for those devolutionist or UK federalists who fancy including such a question, but who are knotted in anxiety about taking the ostensible will of the people - as they'd see it - too seriously."

None of this would necessarily trouble the nationalist majority in Holyrood, mind you, but for the marvellous opportunity afforded by the law, and the Scotland Act's often Delphic reservations of power to Westminster. Between 2007 and early 2012, the SNP's legal analysis, at least in public, is that the independence referendum presented no real difficulties under the Scotland Act. In this, at least for a time, they were joined by Wendy Alexander, and, for a time, by David Cameron. Salmond's legislative statement this January heavily qualified this long-cultivated impression, recognising that asking his preferred question - "Do you agree that Scotland should be an independent country?" - was legally contingent on soliciting agreement from Westminster to changes in the Scotland Act.

The Scottish Government, rightly in my view, has held tenaciously to the argument that there is a strong and potentially persuasive legal argument to be made that a referendum would be intra vires, even without Westminster's nod, but that way lies uncertainty, and the risk of legal challenge, and a suspended campaign as Scots courts examined the question with their usual haste and expedition.  By overstating their case, the coalition government, aided by their allies on the Labour benches in Westminster, have ruthlessly exploited these legal uncertainties - which privately the Nats know only too well - to get their retaliation in first, and assassinate any devo-something question before Salmond could etch it on the ballot paper.

Although Ian Smart continues to cling, like a drowning man, to the sinking flotsam of his theory that the SNP will avoid posing a referendum poll if possible, the ongoing and increasing rumbles from the inter-government negotiations suggests that a deal has been cut on a section 30 order.  To my eye, there's a snowball's chance in hell that any agreement would be possible, if Nationalists were insisting that a second, devo-something question was part of the process.  If Nationalists fancied the fight, Westminster's refusal to countenance the inclusion of a popular devo-something question might have embolden them, and give them a political hammer to batter the coalition with, and knock back an unacceptably conditional section 30 proposal.  That, however, would not be without its risks, not least that the referendum would end up in court, and heaven knows what the outcome of that might be, save for acrimony, delays and uncertainty.  If their intention was to delay or avoid a poll, as Ian Smart has consistently (but unconvincingly) argued, this would be the ideal way to bring it about.

And finally, we have the SNP itself, which with customary discipline, has been able to keep its divisions on a second question almost entirely from public view. Partisan Nationalists often favour the Salmond-as-Machiavelli interpretation of the First Minister's devo-something kite flying. Earlier this year, I summarised a few of the dominant interpretations of what the SNP leader has been up to, under the headings of canny manipulation, caution, cynicism, or democratic sensibility..

Account, the first: Alex Salmond is talking about “devolution max” as he is aware of its popularity. Anxious to avoid being blamed for its absence from the ballot, his goal is to pin the blame for its exclusion on Unionist parties, who seem happy to oblige. Appealing to the idea of UK recalcitrance, patronising, haughty – and gadzooks – Tory, he hopes to ensnare social democratic wobblers and erstwhile non-nationalists in a binary choice of independence or the status quo of Tory rule, so uncongenial to many Scots. “If Britain will not move, won’t countenance enhanced autonomy, what option have we?” On this account, “more devolution”, is a political ploy, with partisanship for independence in mind.

Account, the second: Salmond is a man of democratic sensibilities. While not endorsing the proposition himself as his primary preference, he believes that given public feeling, a “more devolution” question should be posed, whatever impact it might have on levels of support for independence.

Account, the third: the First Minister is pessimist enough to concede the possibility the independence will be defeated, and is gaming the counterfactuals. A belt and braces man, who plays the gambler but wagers soberly, a question on “more devolution” affords a sort of constitutional security and a sure basis for future, power-extending politics, if independence does not carry the day.

Account, the fourth: Salmond is doing more than mere contingency planning by promoting “devolution max”. He simply does not believe that independence is winnable at this time, and this extension of devolution is the prize he is really seeking, using the threat of independence to serve devolutionary goals. Because of party feeling, he won’t admit this publicly, and instead gives the impression he is motivated by the democratic commitments of the second account. He will, accordingly, only ask a yes or no question on independence if absolutely forced to do so by circumstances.

When embarking on an analytical enterprise, enumerating your assumptions is often a tremendously useful process. It clarifies your position, but also makes you much more alive to the perils of your approach, the critical turning points apt to upend your conclusions, and generally bugger up your best laid plans and calculations. Most of the analysis thus far has presupposed unanimity at the core of the Nationalist government on the one-or-two referendum strategy.  This doesn't seem convincing.  Although the internal debates have never spilled out into the public domain, my understanding is that members of the cabinet have been split on the inclusion of a devolution question, and some of them were profoundly opposed to including it in the poll.

By contrast, given the kite he's been flying for devo-something for months, going well beyond canny game-playing of the sort envisaged by my first account, it seems a reasonable inference that, if he could have got away with it, Salmond would have been less discombobulated than some of his ministers by the idea of including a second question on the ballot.  Unable to cabal the question in, he may now resort to the argument addressed to those whose aspirations for more devolution have been disappointed, but it would be a mistake, I think, to believe that this was his masterly manipulative wheeze all along, and he'd have rejected the opportunity to pose a second question, if afforded a credible opportunity to do so.

You can understand why senior Nats aren't keen. Indeed, on the current evidence, would be extraordinary if none of the SNP's parliamentary delegation, never mind the wider party, reckoned that devo-something was a primed bear trap, not just for Labour, but for those who support independence, its inclusion a metric of pessimism about (N/n)ationalism's chances come 2014.  On the available data, it seems a tolerably clear that asking folk about devolution - and providing a longed-for middle ground - will only serve to knock the likelihood of achieving independence squarely on the napper.  What life-long nationalist would want to lay stumbling blocks for herself, on what promises to be a long, challenging, exhausting course, criss-crossed with snares and difficulties? A profoundly pessimistic one, perhaps, but after my umming and awing, swither and thon, I've come around to the view that a yes or no independence referendum is my preferred outcome.  A nationalism-with-regrets it may be, but the conclusions seems inescapable that the lifeboat of devo-max is nothing more than a fond fantasy in the United Kingdom as we find it, rather than as I might wish it.

We'll have to wait a wee while to see what terms, if any, Nicola Sturgeon and Michael Moore have met on a section 30 order, for Unionists and Nationalists both, this is shaping up to be 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..."


  1. I am a bit perplexed by your claim that Salmond conceded the point that the preferred question was "legally contingent on soliciting agreement from Westminster to changes in the Scotland Act." It seems clear to me that Salmond assiduously avoided making any such concession. As, indeed, he was well-advised, if not compelled, to do in order to keep open his option to reject a section 30 order with unacceptable strings attached.

    You may doubt the Salmond-as-Machiavelli account. But you surely must allow that one of the striking things about his strategy is the way in which he has maximised that most valuable of political commodities - options.

  2. Great post.

    You quite rightly raise the point about whether existing powers in terms of the Scotland Act 1998 (as amended) might allow for a Holyrood instigated referendum. Modesty does not prevent me flagging another potential point that may ease any referendum concerns that I have blogged about over at the SCCF blog. See http://bit.ly/SyJeqy

    And yes, setting out assumptions is a very useful way of channeling your own thoughts (as per my own blog). There is always the danger of your assumptions taking over a piece of writing though - witness some legal opinions.

  3. Peter,

    I'll have to insist on the point. Here's why. As I'm sure you followed at the time, in the SNP's January 2012 consultation document on the referendum, they proposed to ask - "Do you agree that Scotland should be an independent country?"

    This was a change on the original proposal of 2010, in which the question was the much more roundabout affair, with the ballot paper envisaged in the following shape:

    "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.


    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."

    In that 2012 consultation document, at para 1.05, the Scottish Government noted that

    "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)

    Between 2010 and now, nothing has changed in terms of Holyrood's powers to hold an independence referendum, and yet the SNP are envisaging a change in that "carefully phrased" wording to "comply with that requirement".

    In brief, the preferred question the SNP want to ask presupposes a s30 deal with Westminster. On their own evidence, they don't believe they could pose their preferred question, and comply with the law as it stands now. If a s30 order is not forthcoming, we will in all probability be back with the first question, with its razzmatazz about consultation, and negotiation.

  4. To me the change in wording between the 2010 and 2012 consultation documents looks more like an affirmation that no s30 order is required because the proposed question DOESN'T "change any reserved law or relate to those aspects of the constitution which are reserved by the Scotland Act 1998". If the thinking was that the new wording would require a s30 order, why not stick with the original wording?

    It is evident that there was a significant rethink between times. For a start, the "more powers" option was dropped. It looks like there was a rather different strategy prompted by the 2011 election success. Dumping the whole "second question" issue in the lap of the unionist parties combined with a more "robust" approach on the authority of the Scottish Parliament based on the democratic mandate won by the SNP.

    Salmond's language on the subject of a s30 order has also been telling. His attitude since May last year has been that it would be nice, but not necessary. And he has been quite explicit about rejecting a s30 with unacceptable strings attached.

    Not only do I see no indication that Salmond has conceded the need for an s30, it would have made no sense for him to do so. Unless, of course Ian Smart was right (stop laughing!) and Salmond was looking for an excuse to call off the referendum. In that case it would have made perfect sense for him to play up the need for a s30 so that he could either force the UK Government to refuse or claim that the conditions attached made it impossible to accept.

    If any doubt that Salmond has played this to perfection they would do well to note that he looks almost certain to come out of the negotiations with everything he wanted. Everything! The "second question" is a faux concession - a bone thrown to Cameron to allow him to pretend that he has won something. But we both know Salmond never wanted a second question anyway. And on all else he has got his way.

    He achieved this because he knew he held all the cards. Or at least the trump card of an electoral mandate. Given that, why would he hand Cameron a lever by conceding the need for an s30?

    The question was changed, not by way of an admission that an s30 was needed, but so as to assert the authority of the Scottish Parliament.

  5. Well that post was interesting as usual, but I am especially intrigued by the exchange between Peter and LPW re the clockwork in Salmond's head - hard to think of another politician in the UK whose motives could be examined so closely - and with so little conclusiveness. The folksy/tricksy Boris Johnson is an open Beano in comparison.

    So it is heading towards yea or nay . God knows where we will all be two years from now, but I doubt very much the year 2014 will end with an independent Scotland.

    Re Montrose, I think he is the very last model we need, nat or unionist. His order to let his Irish troops sack Aberdeen was certainly decisive, but the atrocities committed by his men unleashed retaliatory atrocities, perhaps most notably on the helpless Irish women and children murdered at Linlithgow, and left a toxic legacy for Scotland.

    Sometimes there is much virtue in a Mibbes Aye, Mibbes naw.

  6. Regarding your "Salmond as Machiavelli" theory, is it possible you've missed one?

    Account, the Fifth: Salmond, being a gradualist to some degree, has deliberately kept the Devo-max option alive in the public consciousness, while not supporting it himself. In this manner he has effectively lured the unionist parties into offering further powers as "jam tomorrow" to encourage a No vote.

    Therefore, win or lose, he has won further devolution. Or, at worst, he has kept the SNP in the game post-referendum as the only true guardians of further powers, once the unionist parties renege on their promises.

  7. I rather side with Peter with regard to the change in the question - I think it was a power play emboldened by an unexpected majority.

    With a minority government Salmond was required to tread carefully and be seen to tread carefully around the Scotland Act, not least because a Tory Presiding Officer would look unkindly on any resolution with even a whiff of ultra vires about it. With a safe majority enabling him to put a friendly face in the chair, Salmond can afford rather more bravado in presenting himself as Scotland's champion.

    Don't forget how firmly the SNP resisted the urge to hand the PO's job to Hugh Henry as an olive branch aimed at demonstrating consensus, when it would otherwise have been easy and painless to be magnanimous, with a majority backing up legislation anyway. I don't think it was mere victor's spoils.

  8. Stuart M

    I'm afraid your analysis is somewhat adrift. The "jam tomorrow" offers from the British parties are worthless. No prize for Salmond there. What keeping the "more powers" stood to achieve was one of two things. Either the unionists would come up with a firm offer, effectively making a NO vote a vote for devo-whatever. Or they would reject a second question completely, thereby formalising a NO vote as a vote for the status quo - the least popular option.

    For various reasons the first of these was so unlikely as to easily discounted. The result is that Bitter Together are now stuck with campaigning for nothing, while taking the full brunt of the resentment of those who wanted a "more powers" option on the ballot.

    Salmond has effectively stolen the ground that was the NO campaign's best hope of success.

  9. The difference in wording & Section 30 issue is just down to the change of circumstances surely?

    When the consultation was initially published the SNP was a minority government. There was zero chance of the then Westminster government cooperating with the SNP government even if the SNP had been able - miraculously - to get a referendum bill through the Scottish Parliament.

    After 2011 everything changed. The SNP had an outright majority and were in a much stronger position in terms of Westminster.

  10. @Peter Bell

    I'm struggling to see where your analysis differs from mine. I'm well aware of the falsity of any jam tomorrow offers - but I wouldn't say the same of the general electorate. My point is, by effectively forcing the unionists to make the offer, he demonstrates its worthlessness to the general electorate. And thus strengthens the position of the SNP in the event of a No vote.

    Had he not enticed them onto the ground of making the offer, they would offer nothing, and continue to offer nothing in the 2015 UK General Election in the event of a No vote. The timing is important, in that neither Labour nor the Lib Dems will be allowed to ignore further powers in the 2015 election, coming so soon after the referendum. Should that devo-max vote be a factor at the 2015 election, they'll be more keen to vote SNP.

    IMO Salmond has played this very well, in ensuring that the referendum cannot act as a brake on the devolution process.

  11. Stuart

    My apologies for any misunderstanding. I mistakenly thought you were putting some store in the talk of more powers maybe sometime.

    On a related matter, we hear that Johann Lamont's "commission" met this morning. A mere seven months after it was announced. Real sense of urgency there, eh?

    This ties in with what we were discussing because, having rejected a second question, "Scottish" Labour realised that they'd been danced into a corner where they are campaigning only for the status quo. A non-starter as far as the electorate is concerned. The sole purpose of their wee commission is to allow them to TALK about more powers during the referendum campaign.

    It's another panicky rear-guard action by inept politicians who have been totally out-manoeuvred.

  12. This is all way too complicated. I think they kept the possibility of a second question open because it was there. It was part of the mix from the first run at the referendum bill.

    Also you need to remember that the reason the SNP walked out of the constitutional convention was because the convention refused to offer a multi option referendum.

    Maybe a lot of people have forgotten about that but the people in and around the SNP leadership haven’t.

    You have to allow for some genuine principles here. Everything isn’t all a game. They said they were prepared to put another option on the ballot paper if there was a demand for it. I think that’s the literal truth.

  13. I’m no lawyer, but the last to disagree the issue of the question to be posed in or questions being posed by the Referendum is part tactical, part strategic consideration. However, it appears that now’s not the day, nor the hour, other than to see approach the powerful question that is the crux and context of putting principle and prospects to the vote and hence via negotiation into practice: sovereignty.

    What credibility would Whitehall / Westminster suffer if it were to set aside the status quo of crown-in-parliament sovereignty when it is duty bound not to in the public interest of the UK electorate as a whole?

    What credibility would Holyrood suffer if it were to bend the knee to the crown’s when advancing the cause of we, the people’s sovereignty? Not only here, but also hereabouts for those who would might wish to assert theirs too?

    What is the legitimate role of the rule of law in putting the principle of sovereignty to the test? Is the common ground not simply that it should be used to put the holding and running of the Referendum beyond legal doubt? That anything and all else is politics to contest, including the result – as it’s bound to be in the event of too close to call being thought decisive anyway?

    All of which leads to the compromise agreement of a S30 order - and attendant ‘rules of engagement’ - being acceptable if written as a technical transfer of authority to put the matter of holding and running this Referendum beyond legal doubt.

    Which seems to be the case, judging from what’s shaping up as relayed by the BBC overnight [1] after checking with Mr Swinney (also Newsnight Scotland [2], first from Westminster, then 6:06 in) before Mr Cameron’s speech to the Conservative Conference and ‘country’ - if not ‘one nation’ too - which he is due to make at 11:15 this morning.

    Which is not to say such an agreement has not and will not be spun as defeat for one or both parties to it elsewhere: eg Carrell in the Guardian [3].

    If this forthcoming agreement is confirmation that demand without supply might not be met by other than a 'forward promise', so too is it the potent potential of the excluded middle being included in the question. Viz, unlike the polarising independence v union argument, an independence and union approach encompasses a win-win strategy and outcome over and above the inertia of the status quo.

    However achieved, sovereignty would put Scotland’s independence on equal terms (tvm for [4] Frankly) with that of the extant UK’s. The confederal sharing of sovereignty via an updated 1706/7 Treaty & Acts of Union with rUK would foster mutually beneficial interdependence - including further de-centralization of authority, responsibility and resources – through optimal autonomy all round.

    To my mind, that’s the way and means to the ends of any social democracy worth striving for in serving the greatest debt we owe each other: our society - especially now, in facing up to and turning imposed austerity around.

    Mind too, a result in favour of Yes in the Referendum (before 2014’s end) would be for the principle and prospects of our own sovereignty – probably before publication of manifestos firmed up in consequence for the next UK General Election if held in May 2015. So, there would be a year for negotiations before what would be the first of Scotland’s General Elections in May 2016, which would have to be won by an overall majority if the principle and its prospects are to be secured in practice, along with any negotiations which had been delayed, just in case ….

    But we all knew that and the foregoing anyway, didn’t we :-)

    [1] http://www.bbc.co.uk/news/uk-scotland-scotland-politics-19892368

    [2] http://www.bbc.co.uk/iplayer/episode/bc01ncpy5/Newsnight_Scotland_09/10/2012/

    [3] http://www.guardian.co.uk/politics/2012/oct/09/scottish-independence-referendum-alex-salmond

    [4] http://rueclementmarot.blogspot.co.uk/2012/08/on-equal-terms.html

    Entered by Indion @ 10:52

  14. Indy

    The SNP walked out of the constitutional convention because the other parties ruled out even considering Independence - the same as they did with Calman.

    It was the absence of the Independence option that was the sticking point - the form of the referendum was just a manifestation of that.

    And Jim Sillars' hotheadedness of course :~)

  15. Indy, Peter, RevStu,

    You'd expect me to say this, with my legalistic hat on, but "the change of circumstances" interpretation is not, I think, convincing. If there was a snowball's chance in hell of the 2010 referendum Bill being passed, why not ask whatever question you'd prefer? It is not as if the "negotiation" poser actually helped very much, prompting as it did some rather unhelpful ideas that we should have two referendums, the one to set negotiations in motion, and the other to confirm any agreement on independence reached.

    The reason the first question was so circuitous was legal, not just a political preference - it was the best form of words that a divided Scottish Government legal service could put together, which would arguably fall within Holyrood's competence. Legally, nothing has changed in that competence (though as you say, politically, the SNP majority in parliament has changed the political scene, and would alter the balance of pressures on any court deciding on the competence of a referendum Bill.


    Ta for the link. I'll have to update my RSS feed with them.

  16. Edwin Moore,

    He's often a sleekit, indecipherable fellow, for sure. Need to brush up on my Kremlinology.


    That's the first blog comment I've received, fully referenced and footnoted! Entirely agree that parliamentary sovereignty is a Carthago delenda est issue, and the fixation on the concept in Westminster and British politics, one of the central reasons why the UK seems highly unlikely ever to achieve any stable federal structure. At least while so many of our politicians cling so doggedly, and so ardently, to the constitutive narrative of Westminster sovereignty.

  17. "If there was a snowball's chance in hell of the 2010 referendum Bill being passed, why not ask whatever question you'd prefer?"

    I don't think that was the case, or at least certainly not known to be the case. I think there were grounds for believing there was at least an outside prospect of getting the bill through - see Wendy's short-lived intervention for evidence.

    I think you're maybe overlooking Occam's Razor a wee bit. Policy has evolved as circumstances have changed, as tends to happen. If there's one thing Salmond's good at, it's adapting to opportunity.

  18. RevStu

    The issue with the 2010 bill was not so much whetehr it might be passed but what would happen to it in the unionist-dominated committee process.

  19. LPW,

    Thanks for your reply. (As to your ‘first’ received, mine was the first ‘not’ in para 8 that should not have been.)

    Re ‘Carthago delenda est’:

    An apt hard-line quote if, as Rome about Carthage, so too Britannia about the sovereignty of Caledonia and Hibernia down the ages, and now as metaphor for a Referendum rather than Neverenda with a destructive No campaign relentlessly waging a war of words to evoke and stoke fears and doubts backed by the siren song of Better Together mood music.

    But not an expression that fits the Yes campaign, which is about reconstruction not destruction, evolution not revolution. Divinely assumed, earlier, higher sovereignty still imposed from top-down being transformed by the natural, later, plural sovereignty lent from bottom-up constitutional foundations.

    Otherwise, fully concur.

    Moreover, an S30 order can’t be amended once signed-off. So its passage through both Westminster and Holyrood would depend solely on approval by majorities at both. Conceivably, Westminster could express displeasure by delaying or voting the S30 down if enough there thought much good would come of any high-minded pretence for such low-minded action, but neither house is collectively so daft as to be unaware of the consequences, are they?

    Which leaves the HoC and HoL having made a start to gathering long grass for a royal commission / constitutional commission or some such, as either preventative ‘forward promise’ and/or diagnosed cure in waiting for anything other than what UK Ayes Only minds would ‘constitute’ decisive in the event of a Yes vote outcome.

    Entered by Indion @ 10:40