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..."