1 October 2014

Acknowledge it now

The starting point for the Scottish National Party, going into the Smith Commission on further devolution, must be a maximalist one. We are the party of Scottish self-government. We cannot pretend otherwise. If independence is our first preference, our esto position is the greatest level of autonomy for Scottish institutions which it is possible to be gained within the United Kingdom. 

As Ruth Davidson made clear yesterday, "devo max" as it has conventionally been understood - responsibility for nearly all of Scotland’s domestic affairs, including taxation and welfare benefits, while foreign affairs and defence would remain the responsibility of the UK government - is a non-starter

While this comes as no surprise to anyone familiar with the devo-schemes offered in the months before the referendum by the Labour, Tory and Liberal Democrat parties, it will come as something of a rude awakening to those moved by the rhetoric and the representations of the "new powers" apparently on offer which saturated the final weeks of the campaign.  

But over and above the narrow party debates and Westminster recriminations on the balance of welfare and tax competencies, the pro-independence minority have particular interests which they we must argue to be privileged in the Smith process. We've got to come down to brass tacks, and quickly. The Greens and the SNP have just over a week to submit their views on more powers to Lord Smith of Kelvin. The rest of us have a little longer. 

I'm sure folk are beavering away behind the scenes, but we also need practical ideas circulating out there, in the ether. If, as Alex Salmond has argued, the custodians and guarantors of further devolution are millions of our active and agitating fellow citizens, those citizens need quickly to master the Scotland Act - at least in outline - to understand what is doable and what is desirable, what is already devolved and which powers Westminster still stubbornly - and sometimes unjustifiably - clings to.

The welfare red lines I suggested last week are one such practical idea for Nationalists. Here's another: we need to seize the opportunity of the Smith Commission to put the legality of any future referendums beyond dispute, and vigorously resist any proposal to entrench the Union along the lines suggested by Jack Straw last week.

Although there was a good deal of nonsense and shadowboxing on the topic back in 2012, as loyal and long-term readers of this blog will recall, without Westminster's 2013 section 30 order under the Scotland Act, the legality of the 2014 referendum hung by a very shoogly legal thread. Calling a referendum was arguably within Holyrood's powers, but no higher than that. Without getting the nod from Westminster, the referendum was vulnerable to legal challenge, the outcome unclear, and risked putting the Presiding Officer - who must certify that Bills fall within the Scottish Parliament's powers - in an impossibly difficult place. 

Even kicking the referendum can several years down the line, with September's defeat, these issues return with a vengeance. If there was an arguable case that the referendum fell within Holyrood's devolved powers before the Edinburgh Agreement process, that case is now much weakened. The UK government imposed a number of restrictions on the 2014 poll. Firstly, they insisted that the referendum should be an either/or affair, a Yes or a No to independence. They also time-limited Holyrood's authority to call such a poll. It lapses on the 31st of December this year. Bottom line: on the current law, future independence referendums called by Holyrood, without securing London's agreement, are now almost certainly unlawful. Jack Straw's wheeze is entirely surplus to requirements. So what are we going to do about it?

From a democratic perspective, this restriction cannot be justified. Future referendums any time soon cannot be a priority and cannot seem like a priority for the Scottish Government and the Scottish National Party. But we have a responsibility to the very substantial minority who voted Yes on the 18th, and to the principle of Scottish self-determination recognised by the 2014 referendum, to ensure that future generations have the opportunity to decide for themselves whether they wish to remain part of the United Kingdom. And to do so lawfully, peacefully and democratically - at the ballot box. There can be no question of changing the rules of the game now. Jim Sillars is dead wrong about that. All we must seek is to give permanence to the basic principles, recognised by the UK government in facilitating the 2014 referendum.

Nor is this special pleading, or an unprecedented or unreasonable recognition of minority sensibility. The first section of the Northern Ireland Act 1998 recognises that "Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll" but "if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland." 

The rules governing such a border poll are set out in the first Schedule to the Act, and are not unproblematic in their details - but the basic principle recognised by the legislation is a sound one. If Northern Ireland's right to determine its constitutional destiny within the United Kingdom can be respected and reconciled in law with continuing Union, why not Scotland's? Surely a will to self-determination expressed in an orderly, civic movement has at least as much moral and political authority as the hard and harrowing process in Northern Ireland which culminated in the 1998 settlement.

The case for recognising Scotland's right to self-determination in primary legislation is unanswerable. It isn't good enough to leave the question vulnerable to cynical political manipulation and Machiavellian legal position-taking. Our first priority in the Smith Commission must be securing greater autonomy in tax and welfare to make a real difference to folk's lives. 

But it is crucial not only that Holyrood's powers are extended, but that the democratic principles which flowered in this referendum also endure. Securing the inalienable right of Scots to decide their own political future - giving legal force to the principles articulated in the 1989 Claim of Right - must form part of that. The new Scotland Bill could do worse that incorporating this thought into its first section: "We acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs". 

This is the challenge to the other parties to the Smith Commission: many of you acknowledged it then. Acknowledge it now.

36 comments :

  1. You are exactly right. We need to have this position enshrined as an absolute requirement by the commission. I hope it would have formed part of the Scottish constitution (remember that?)
    We also need control over and responsibility for the Crown estates, including the seabed around Scotland

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  2. "Firstly, they insisted that the referendum should be an either/or affair, a Yes or a No to independence. They also time-limited Holyrood's authority to call such a poll. It lapses on the 31st of December this year. Bottom line: on the current law, future independence referendums called by Holyrood, without securing London's agreement, are now almost certainly unlawful."

    I'd have assumed when that law expired, we'd return to the status quo ante of the legality of a consultative referendum being arguable one way or the other. Are you suggesting that the bad bits of the law effectively remain in force even after it expires in December?

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    1. James,

      I wanted to avoid getting too technical in this blog. We've been over these issues before in a more relevant context. But the compressed version: the case for the legality of an indyref unsanctioned by Westminster rests on the idea that the poll would not "relate to a reserved matter" - in this case, the reserved matter of the Union, featuring prominently in the first part of Schedule 5. There are - were - arguments to be made on this score. I made them here. The link to Gavin Anderson et al makes other arguments. But the s.30 order substantially blunts the persuasiveness of those arguments.

      If you look at the text of the order, linked above, it very carefully notes that a referendum on independence would not be a reserved matter - but only if particular conditions are met. Presumptively, the order enshrined the principle that an unsanctioned indyref would be ultra vires.

      We can expect the courts to take account of that text in any future adjudication. In my view, it hulls the leaky ship of Holyrood's competency in this field below the waterline. The arguability of the Scottish Parliament's position got a whole lot weaker as soon as the s.30 order was pronounced. We've not reverted to where we were before, but find ourselves in a newer, weaker position in law.

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    2. I presume, though, that in the first instance the Presiding Officer of the day could still certify that the referendum bill was within the Parliament's competence, and then let the courts decide (assuming there was a challenge)?

      The reason I ask is that going through that process, even if it ultimately let to a referendum being ruled unlawful, would be an excellent way of bringing London back to the negotiating table, because the public anger over a clear mandate for a referendum being thwarted would be immense.

      But hopefully what you're calling for will happen, and London will transfer the powers in the upcoming process.

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    3. James,

      I think you are overestimating the flippancy with which a PO would and could approach the question. The question would be subject to independent legal advice, which would tell them what I'm telling you.

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    4. I'm not suggesting a "flippant" approach at all. In fact, I was following through the logic of your own statement about the view "the courts" would take - they won't get a chance to take any view at all unless the Presiding Officer certifies the bill as within the Parliament's competence. You've also used words like "weakened" which implies to me that there is an area of uncertainty which a Presiding Officer sympathetic to the legal case for an independence referendum might well put a generous interpretation on. (If there is a parliamentary majority for independence, that majority will also decide the identity of the Presiding Officer.)

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    5. I'm sure it was just a coincidence that the SNP set up everything you suggested in 2011...

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  3. Surely the Northern Ireland case is quite different. The Treaty of Union is between two partners Scotland and England. If one partner wants to annul the Treaty what right does the other partner have to veto the means of establishing that wish e.g. by referendum, phone-in, online poll, letter or any other?

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    1. I'm not sure your analysis - which constructs Westminster as the "other" aligned with the English part of the Union - really holds up.

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  4. Not to mention that if the power to call another referendum is not within the powers Holyrood has then the only other option left to a future Scottish government faced with legitimate democratic calls for another poll but a hostile govt in Westminster would be UDI. Or would appeal to the UCHR arguing self determination rights have to fail first?

    What other remedies would there be?

    Surely Westminster realises that and surely at least the prospect of defeat in the Strasbourg Court was what concentrated minds in No10 when if you recall they changed their original reaction from 'no way' to what became the Edinburgh Agreement. Something changed their minds and civil servants bearing such advice as well possibly as the prospect of the newly majority elected First Minister resorting to UDI backed by his clear democratic mandate.

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    1. It seems to me that if a Scottish Parliament was elected with a pro-referendum majority, and if that referendum was thwarted by whatever means, then at that point, and only at that point, it would be reasonable to propose the Sillars solution of seeking a direct mandate for independence from the next Holyrood or Westminster election.

      The SNP surely cannot accept a situation where all avenues for the expression of legitimate national self-determination have been completely blocked off.

      There are also potential alternative ways forward, such as a consultative referendum on Devo Max. As far as I can see, the Edinburgh Agreement can't possibly affect the legality of that. Indeed, I presume the weird insistence that no other referendum could be held on the same day as the indyref was an acknowledgement of the fact that Holyrood could call a Devo Max referendum, ie. London was afraid that a de facto multi-option referendum could be contrived by holding two votes simultaneously.

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    2. I'd go a step further. If folk with a manifesto commitment to independence won a majority of seats in a Westminster election, then what?

      It seems to me that that was the original claim of right.

      Correct me if I am wrong.

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    4. Since Westminster rejected Holyrood's proposal for a third option to YES or NO, the introduction of a third option at the end of the campaign during the purdah period was surely illegal? NO people said that more powers was not a new offer when they were challenged, but only a timetable, yet they continued to talk of a new offer. Why has the Scottish Government no challenged this in an appropriate court outside the UK as bad faith and illegal? In effect they changed the NO vote into a vote for more powers, in people's minds.

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    5. muscleguysblog,

      Indeed. There is a bottom line - that the exclusion of all legal routes to independence can't be on. But that is a question for much further down the line. There's an opportunity now.

      Bill,

      The exclusion of a second question - in fairness - had multiple angles. Westminster was clearly keen to exclude any second question. But on the other hand, it is far from clear that anything but an either/or option could have delivered the healthy Yes vote we saw.

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  5. WRT the Strasbourg court route it would seem that is where the Catalans are almost certainly heading. Especially since the Castillians used a court process to declare their referendum illegal.

    Surely once the Court rules on the right to self determination which is surely unanswerable since a member state of the Council of Europe must be fully signed up to the UN human rights declaration etc. then that will act as a precedent should Scotland ever need to go down that route ourselves?

    At the end as well we know from history what happens if a people's democratic desire for self determination is thwarted by the larger power. The results are legion. Even lucky Slovenia had some casualties of their independence 'fight' with Yugoslavia. I just hope the Scottish govt is brave enough to seek other remedies up to and including UDI before we have to face that.

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    1. A few problems with this. Firstly, you won't find a right to self-determination in the European Convention on Human Rights - and the Court has noted in the past that it will not entertain any cases turning on this question. It is a question of the Court's basic jurisdiction.

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  6. How does this follow:

    "If independence is our first preference, our esto position is the greatest level of autonomy for Scottish institutions which it is possible to be gained within the United Kingdom.

    Esto is not a commonly used word in the English language. It means:

    " suppose it to be so (used to plead an alternative set of circumstances in a claim)"

    It is verging on ridiculous to plead at this moment in time. We have much going for us.

    I enjoy being taught about owls on the ground. I enjoy your usually passionate statements about, ahem freedom.

    I do not enjoy any sort of capitulation.

    You sir are amongst the best we have. We need you on our side in what may yet end up in being a fractious war of attrition.

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    1. Douglas,

      I really don't see this as "capitulation" or anything like it. My main aim is not to make the best the enemy of the good. There are gains - real gains - in terms of autonomy to be secured. I'm a fourth generation Nat, Douglas. I don't need lessons in keeping the flame.

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    2. Well, I do, 'keeping the flame', I mean.

      I have thought about this on and off for the last 48 hours or so. So please respect the reply.

      It is difficult for me to see your point of view here. Bear with me, please, I am getting a bit fed up with being banned from commenting on sites I thought were on my side.

      I 'do' see anything short of complete indepenence as an utter failure. Your mileage obviously differs. I do not see how you square that with fourth generation Naionalism..

      I am first generation Nat, as far as I know.

      My parents were, variously, Liberal and Unionist. To the best of my immediate knowledge my grandparents were socialist.I am not one to preserve the family tree, though other relations have tried to. Mother's maiden name was Wallace, guess what they tried to prove? And spent a ridiculous amount of money in failing to prove it.

      This has nothing to do with whether you are fourth generation Nat, nor whether my family, at least my mother's half had a credible link to William Wallace or not. They didn't.

      I do see this as a capitulation.

      Fourth generation Nationalists shouldn't surrender.

      I consider your web-site to be useful, intelligent and mired in the legalities. I do not see that as a comprehensive view of where we are at.

      Sorry about that.

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  7. My understanding is that it was the EU that insisted that the Westminster Government make arrangements for greater democratic arrangements in the UK. Otherwise, the UK could not join the EU. That is why Tony Blair was obliged to set up the devolved parliament in Scotland. Presumably, these same principles forced Cameron to agree to the Referendum. See the Scotland UN Committee on Electric Scotland for background details
    http://www.electricscotland.com/independence/story.pdf
    Of course, if the UK decides to leave the EU these principles won't apply.

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    1. Capella, the EU had nothing to do with forcing devolution, although it would be nice to think they had that kind of positive influence over the UK. Tony Blair was no enthusiast for devolution, but he inherited a firm commitment from his two predecessors, and there would have been civil war in the Scottish Labour Party if it he had tried to renege on it.

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    2. Read the piece and it will become clear it was the Council of Europe that was involved. With suspension a possibility if moves to properly democratise the UK were not taken which would of course have had EU implications. Sadly capella has got the story somewhat garbled.

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    3. If that piece is to be believed, then presumably we'd have to believe that John Major would have introduced devolution if he had been re-elected in 1997, which stretches credibility to breaking-point.

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    4. Why? Surely Major could have spun it just the way Blair did and receive the same advice that it would kill the SNP (ha!). After all when you are faced with all the international ignominy of a Council of Europe sanction, trouble then with the OSCE and the EU then even the Tories would have blanched at that. Not to mention giving ammunition to 'the bastards' as Major called his Eurosceptics. Such an eventuality would have sent them into conniptions. The bills, powers etc would have been different to a degree and Major may not have risked referenda, just announced them. But he would have done so, or at least made stalling moves in that directions.

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    5. Major wouldn't have done it because opposition to devolution was practically his primary political conviction. It was the only thing that seemed to animate him in the slightest. He was willing to take any number of cosmetic steps - returning the Stone of Destiny, beefing up the Scottish Grand Committee. But the actual transfer of any powers to Scotland was an absolute no-no for him. He was as intransigent on that subject as Mrs Thatcher.

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  8. Your future-referendum argument seems depend for practical purposes on equivalence with the two-state Good Friday agreement (leaving aside general pleas about democracy). The Smith Commission has unitary-state sectarian Adam Tomkins on board, and, waiting on the periphery, the nu-britnat Scot Sec awaiting his ascension to the Lords. So, can't see the UK/ROI/NI comparison holding (should anyone even bother making it). You might say its not sui generis and the principle of self-determination is applicable generally, but I think we saw two liberals (Moore, Carmichael) stand by the legal advice that self-determination doesn’t apply in Scotland’s case (whatever they may also have accepted in terms of Scottish sovereignty in ‘Campbell II’). Realistically, we're about to get a minimal reflection on the devolution process, the practical conclusions of which may take years to fully implement; and no concession to future referendums along the lines of consolidated sovereignty.

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  9. Interesting article. I agree a prime need is to get the right to hold a Constitutional Referendum built into the 2015 Scotland Act, preferably without stipulations or limitations. Preferably binding. On that basis a sensible Constitution for Scotland could then be built, whereas otherwise I don't see much point. Nothing about that "additional power" on scff yet ...

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    1. Andrew Tickell was convinced that democracy would not rule. It would be subject to the rule of law, which resided with Westminster.

      It was an interesting though nugatory point of view.

      He has expressed it throughout the life of this site, arguing that there would be 'barriers', 'difficulties. even 'impossibilities' placed in the way of having a vote. He has argued merely from a legal point of view, and that is understandable. He is a lawyer, after all.

      But he didn't get any of that right, did he?

      We had a vote. Outwith the legal niceties.

      Andrew ought to look over some of his earlier posts and weep.

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    2. Douglas,

      I really don't know where to begin with your mean-spirited, sectarian and - I'm afraid - bluntly ignorant comments.

      I don't know who appointed you a Nationalist commissar, but if you think folk like me are the problem, who consistently have and will continue to put the case for independence and the greatest level of Scottish autonomy possible as best I can, I'm not sure what to do with you.

      My points about the legalities of the referendum are and were always to emphasise that (a) we had and have a legal problem, and (b) to seek a legal solution. As a lecturer employed to teach the constitutional and public law of Scotland, I'm naturally extremely ignorant of these matters. I appreciate the courteous, detailed way in which you corrected my errors. I take some small comfort from the knowledge that the Scottish Government's senior legal advisers agreed with me. Nothing in that blunts the desire for independence, and finding a viable, legal route towards a referendum on the question, which was always my primary aim.

      You might not be interested in these questions, but the SNP as it is presently constituted is a party committed to the rule of law and operating within agreed and peaceful parameters. That was reflected by the section 30 order - the "legal nicety" - which paved the way for a referendum process free from the very real risk that a challenge would be lodged, a lengthy court case instituted, with all of the attendant uncertainty and bitterness. If you are looking for someone at odds with the party spirit, don't take pot shots at me - spin around and proceed through yourself.

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    3. Andrew, there was nothing at all sectarian about Douglas's post, and being totally new to posting here, I've no idea what's passed before though I have read the odd article or two in the past.

      But you know as well as I do that there is basically speaking, no absolute in Law, it is opinions and judgements, appeals and more judgements. But only if taken as far as any court in the first place.

      There were well qualified arguments that argued that Scotland could well hold a referendum of sorts without permission from Westminster, without any Section 30 order. Here's one here:

      http://ukconstitutionallaw.org/2012/01/31/gavin-anderson-et-al-the-independence-referendum-legality-and-the-contested-constitution-widening-the-debate/

      The Edinburgh Agreement and the Section 30 Order made it all easier, but may well have not been actually neccessary.

      And above that then, you get politics.

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    4. Sorry, I forgot there was no facility to edit a posting. The end of that report is interesting, as is the list of names underneath it:

      Nevertheless, because of the fundamental nature of the issues at stake, and the inherent contestability of constitutional law questions of this kind, it is important that any such agreement should be not taken as an unequivocal endorsement of the view that Westminster alone is entitled to authorise a referendum on the constitutional future of any part of the UK.

      This of course has a bearing on the argument in your article which is that the Scottish Government calling a referendum would almost certainly be unlawful, and perhaps only, helps my own view which is that the SG could call a referendum, and may well be successful in doing so. IANAL - I've just read a lot, including online deliberations and judgements.

      I still support your idea that the Scotland Act 2015 should indeed contain effectively, a permanent and unrestricted S30 Order. But I disagree about Devo-Max and Smith. Devo-Max is very much, still on the table. Cheer up! All is not lost :-)

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  10. Sorry about my post at 4 October 2014 05:28.

    It was rude, and more confrontational than I had intended.



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  11. Though, 'sectarian' as a device in your defence? I have been called many things, but 'sectarian' is not one of them. For the absence of doubt, I am a Partick Thistle supporter. And a damn near founder of Pickled Politics.

    I admire what you do. I have obviously upset you, and for that I apologise.

    Let's leave it at that?

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  12. founder 'supporter' would be more accurate.

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