7 June 2011

Mr Moore: Whose must, your must or my must?

Shortly before the election results rolled in, Liberal Democrat blogger Caron Lindsay mused....

"I have always been reasonably relaxed about the idea of a referendum on independence. After tonight, I'm not so sure. I had always assumed that if Scotland voted for independence negotiations to begin, then we'd get another chance, once they were concluded, we'd have another say on whether we'd back the deal. It gave me the absolute creeps to hear that we wouldn't. I can't believe that Alex Salmond thinks that's legitimate."

I thought Caron would have been made of sterner stuff. The creeps? The haunted shudder brought on by the sleekit and Machiavellian process of giving the whole nation a free say? The diabolical machinations of Richard III it ain't. Yesterday, the two-referendums question revived again, with the jittery Michael Moore's latest pronouncement that in his learned constitutional opinion, two ballots would be required, if Scotland is to slip the bonds of the Union. This proposition is, in great part, supplied by benign "constitutional experts" of various stripes, shamelessly issuing imperatives about "needing" two referendums. Vernon Bogdanor shared his opinion with the Telegraph, who were frightfully keen to present the Professor's view as purified of its naked politics because he happens to be "a world-renowned expert". "Scotland's future will be decided by the people of Scotland, not by Oxbridge professors", was the Mouth of Eck's snarky riposte. UCL's Constitution Unit has also argued that for Scottish independence to succeed, a consultative first referendum (expected in this Holyrood term) would require to be followed by a second, affirming referendum on the given terms of the independence agreement. But necessary in what way? Who says? On what authority?

There are, I think, at least two distinct points being made by proponents of the two-referendum position, which are being unhelpfully (but productively) conflated. Firstly, a point is being made about the domestic constitutional order and the limits of Holyrood's powers under the Scotland Act. As has been discussed here before, Holyrood's power to call any referendum on independence is less than clear - however, all agree that if a plebiscite of any character is within the Scottish Parliament's legislative competence, such a plebiscite will not be legally binding in nature, but advisory only. The SNP government would gain no new legal powers to exercise thereby and Westminster priapists, obsessed with the sovereignty of that Palace, need not fear being put under the thumb of a higher sovereign. As Alan Trench has noted, "The Secretary of State is right here constitutionally speaking, however difficult that may be in political terms."

It is also useful to be clear about why the language of negotiation has become so prominent. I dare say many SNP and independence supporters would be much happier with a question framed thus: do you believe Scotland should be independent, yes or no? Indeed, some Unionists would share such sentiments and call for a clear and simple poll. Suspicious souls, they seem to believe that heretofore, the precise phrasing of the referendum question has been driven primarily by politics - with Salmond seeking a soft-soap phrase to lull Scots into supporting independence. Oppressed by such ungenerous thoughts, they do not seem to have considered the real source of the obscurity of the referendum's language: just another chimerical consequence of the legal detail. The SNP's draft Referendum Bill from the last parliament proposed to ask the following (arguably totally absurd) referendum question...

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.

The only reason that the whole question is being couched in the ludicrously obscure, contortionist terms is the limits of the Scottish Parliament's devolved competence. It is a creature of domestic legal nicety and an attempt to get around the limits of Holyrood's powers. Which is certainly not to say that the whole question of negotiation is unimportant. Far from it. However, negotiation of a settlement emerges as the primary terms of the referendum as it has been drafted, purely for domestic legal reasons. The first question I'd ask folk pushing the "necessity" of two referendums is, do they think the Scotland Act's limits on the Scottish Parliament's powers are a good political reason, by themselves, to "require" two referendums, if Scotland votes "yes" to the first? Are you so attached to UK constitutional peculiarities, that if they are superseded by a collective decision of the Scottish people to form a distinct state, you'd insist on two polls, just so the legals are all tidily tied off? Isn't it just a touch suspicious, that we find ourselves in this predicament because of the eccentricities of the devolved settlement - and folk who are pro-Union are suddenly united in the analysis that it is a truth universally acknowledged, that a brace of referendums are required, if the institutions of our united polity are to unravel?

And for that matter, if you have an obsessive concern for strict legalities in political matters, why only have two referendums? After all, if Scotland voted "yes" in an advisory referendum, this affords Scottish Ministers no further legal powers. Their authorisation to negotiate independence would be "merely" moral and political. Surely, if we're full of legal stipulations, we should have one referendum to decide whether Scottish ministers should acquire legal authorisation from the people to negotiate independence, another once such legal powers are in place to decide whether they should exercise those powers, followed by still another to seal the deal? If there is to be a third, the hurdle of the Scotland Act still needs to be o'erleapt. As any constitutional expert might tell you, legally, this would require Westminster to step in, as the devolution legislation clearly doesn't permit a legally "binding" poll. Oh. And by English constitutional norms, such a referendum wouldn't be binding anyway, as Parliament is sovereign and can do what it damn well pleases. So we may have to organise another referendum to strip out parliamentary sovereignty, so the second independence poll really is legally binding. All neat and expert-like, wouldn't you say?

And there's the rub. When you look into the authority being summoned up by these constitutional experts, it is arid and quibbling fare, likely to convince the odd legalist but utterly lost on most folk. It is one thing to ask, how would a Scottish court deal with the legislative competence of an independence referendum under the Scotland Act? In our system, the judges would be bound by the law of the land, obliged to give effect to constitutional principles. Expertise matters, where that expertise will determine the practical outcome of a controversy. It is quite another thing, as a matter of politics outside of the courtroom, to corral together dreary constitutional pundits, with access to the mythic authority of the constitution, confidently to provide the benighted generality with answers and prescriptions, throttling us with commas and quibbles, telling us when expressions of our national self-determination "really counts". This is a familiar - and indeed, understandable - political stratagem. Expert knowledge is a splendid way of framing the debate in a manner satisfactory to oneself, turning opinion and the debated stuff of politics into objects of abstract knowledge, about which one can be right or wrong. The delight of doing so is that disdaining politics can actually afford political advantages. We must resist Moore's attempt to petrify the issues and cleave fast to the conviction that this is a political dispute, about which we can, should and must disagree, sincerely and candidly. No avuncular academic can easily rescue us from the predicament of deciding for ourselves what we take to be legitimate. There is no sacred book of rules from which the inducted can read off solutions for us, and shame on the old devils for pretending that they're doing so.

Here's where the second, more lively argument comes in: the idea that a gap separates agreement with the proposition of independence in principle - and accepting the final shape of an independent Scotland, once those negotiations have been concluded.  Basically, it is an issue about the extent of the authority being afforded to Scottish Ministers as the agent of the people's will. Should that agent be entitled to bind its principal, or does the latter reserve a right of ratification, of accepting or refusing the terms reached? For example, we might envisage that an individual might support independence on the first ballot, but would withhold their vote in any second plebiscite, if Trident wasn't expelled from the country. Is this a good argument or not? If so, let the historical precedents be marshalled, reasons given, and a case made. What is clear, however, is that this is an argument amongst other arguments. The legitimacy of a referendum is, quite properly, contested terrain. Certainly, let's have a discussion about what we should do, but for heaven's sake, let's all of us forego the language of needs, musts and the dowdy compulsions of confounded constitutionalists.


  1. How much research has gone in to the wording of the referendum question(s)?

    Will the research be published?

    If not, why not?

    Does the SNP's proposed method of proceeding ie asking for authority to negotiate a settlement but not giving people the right to decide whether or not to accept the terms of the settlement,(which looks to me like asking us to buy a pig in a poke) not amount to secession? How would that sit with EU membership?

    It's all pretty academic anyway. What's clear is that the Scottish people do not want independence. What is also clear is that the SNP will not ask the question if they know the answer will be no. So what we'll get will be a shopping list, and independence won't be on it.

  2. 'What's clear...'? Clear to whom? The assertion that the people of Scotland don't want independence can only be arrived at by lumping the Don't Know votes as Nos: if you count them as Yes votes, you get a thumping majority for independence.

  3. If there is a thumping majority for independence the referendum would have been done and dusted by now.

    The best thing that could happen is for the Westminster government to have a one question referendum at the earliest opportunity and put the matter to bed.

  4. Anonymous it is usually an idea to read a post before commenting on it.

    LPW has explained pretty clearly what the legal constraints are on any referendum question.

    There is a simple solution. Westminster can agree to a simple yes/no question on whether people want Scotland to become independent. It is within their competence to enable that. It is not within the Scottish Government's competence.

    Alternatively, would there be any value in the SG approaching the EU and asking them to oversee a referendum, much as happened in Montenegro.

    The Westminster Government might not like that of course but if they are going to play games like this right down the line there is a good case for finding some kind of external honest broker to my mind.

  5. Indy

    Which section of the Scotland Act dictates the questions that can be posed in a referendum or the wording of a question in a referendum?

    If Holyrood has the power to hold a referendum then it can ask whatever it wants. Whether it has the power to do anything with the result is another matter.

    Perhaps the way to resove the issue is for Holyrood to have a referendum asking us whether Westminster should hold a referendum on the subject of independence.

    I don't detect any great clamour for a referendum never mind for independence. If there was I suspect the turnout at the Holyrood elections would have been higher than 50%.

    That's the truth of the matter and the reason why the SNP will do everything it can to avoid asking the question.

  6. Richard Thomson7 June 2011 at 13:27

    Using my own no doubt rather rusty and blunt version of Occam's Razor, I think the key point is, as you say, that by English constitutional norms, such a referendum wouldn't be binding anyway.

    Since any Westminster referendum will be advisory only, from a constitutional point of view it adds nothing except uncertainty to the process - which is no doubt why the SoS is flying this particular kite just now.

    How ironic that after years of wibbling away about the supposed iniquities of a 'neverendum', that's exactly the straw which our devol-unionists now seems set on trying to grasp at for themselves...

  7. Another question that can be asked of our beloved SofS.

    Why is it right that in order to determine the will of the Scottish people on independence they are to be asked on the principle then asked again on the detail,


    When the people of the UK are asked on the principle of who they want to govern them (via the 2010 Westminster General Election) they are then not asked on the detail the following: "do you want a Tory/Lib Dem coallition which no one proposed or asked you to vote for during the recent election?"

    Surely what's sauce for the goose etc.?

  8. I wonder where this nonsense is going to stop? If the people say "yes" to independence, then I'm afraid that's it. I expect to be asked once and once only. I'm not really sure why the unionists think a second referendum will return a different result - if anything, it's likely to return a bigger majority.

    But if there are many more of these pathetic attempts to scupper the referendum, I might just carry out a UDI for Scotland all by myself.

  9. An Duine Gruamach7 June 2011 at 15:14

    It's bizzare. A month ago the Unionists were braying that nobody wanted a referendum, we couldn't afford it, and it'd be a distraction from important things.

    Now they tell us that we must have not only one plebiscite, but two - and some are demanding we have it right now.


  10. Why do the SNP wish to delay holding the referendum to the last possible moment?

    It was the same during their last term in office.

    Why the delay in allowing the Scottish people the chance of gaining their freedumb? Of throwing off the English yoke.Of allowing us to stand proud and free with all the other nations of Europe. etc etc etc

    Is it because they suspect the answer might be no?

    I rather think it might be.

  11. 'I wonder where this nonsense is going to stop? If the people say "yes" to independence, then I'm afraid that's it.'

    And if, as all the posts suggest, we vote no?

    By the way, what odds are the bookies offering on a yes vote?

  12. I for one like to choose who puts me to bed.

    LPW -Well argued.

    As a citizen of Scotland do you consider the Scottish people through their parliament in Holyrood are sovereign.

    Or, as a citizen of Scotland do you consider(accept) the parliament of Westminster to be sovereign.

    Would that not clear the constitutional decks?

  13. Sorry, that should read 'as all the polls suggest'.

  14. Scottish republic7 June 2011 at 16:50

    After 304 years, the SNP can choose the moment they wish to hold a referendum.

    If there is a YES majority then there is no need for a second referendum because the negotiations done by Scottish politicians will be to get the best deal possible for Scotland.

    A second referendum is thus B.S. .

    What the Brit nats would like is a referendum about whether there should be a referendum, again B.S.

    1 referendum is requitred and the Brit nats will accept the decision.

    None of us wish to see the result should they just say they don't accept the result. None of us.

  15. I'm perplexed.

    If there is such a huge groundswell of opinion in favour of independence why was the turnout for the Holyrood elections only 50%?

    And of course the SNP can decide when to hold the referendum.

    It's just that, if independence is such a good idea, why do they wish to put it off for as long as possible?

    If I was a nationalist and believed in Scottish independence I'd want to see it ushered in as soon as possible.

    I just can't avoid concluding that the reason for the delay is that the heid bummers ken fine whit the result is gonnae be.

  16. Anonymous is right. The SNP promised a referendum "within 100 days" of taking power in 2007. Then they said... later... Then they said 2010. Then they said "give us another go, we're brilliant, even although we didn't deliver on any of our major manifesto commitments, we'll have the referendum now if you vote for us.."

    And a few people (24% of voters) did... but still no referendum.

    Scotland Free in 2333... mebbes...

  17. You know, it's not possible to change the constitution of the local golf club without a two-thirds majority.

    So any referendum should, obviously, have a similar threshold for change.

    After all, we wouldn't want accusations of politicians thinking the fate Scotland was less important than your golf membership...

  18. Scottish republic7 June 2011 at 20:04

    Braveheart = Brit nat = worthless opinion

  19. UDI is beginning to look like an increasingly attractive option thus putting it all to bed.

  20. David said..." UDI is beginning to look like an increasingly attractive option thus putting it all to bed."

    Anyone remember UDI for Rothesay? That was a hoot...

  21. The SNP did not promise a referendum within 100 days of taking power in 2007. That is utter nonsense.

    If this is the standard of debate we have to look forward to it shows Labour members have learned absolutely nothing from the drubbing the elecorate gave them in May.

    You can go the way of the Lib Dems too you know.

  22. Indy... exact words that the Nats were using in press releases in the run up to the 2007 election..."we will legislate for a referendum within 100 days of coming to power..."

    When challenged, they said "Oh. Not a referendum within 100 days, never meant that oh no, how could you think such a thing? Nonononono. What we meant was we would have "legislation... within a hundred days...".

    But then...."...let's have the referendum in 2010. Eh? That'd be good. Wouldn't it? Promise. Definightly... we will...2010.. that's a fact. Honest...."

    Now? "I know!!! The anniverary of Bannockburn! That'll prompt a reasoned debate...".

    Really. Do you beleive that the SNP will ever have this pesky referendum...? I don't.

    And the evidence is on my side so far...

  23. Indy, in any case, what do you think of my suggestion (above) that any binding referendum should have a high (two-thirds or similar) threshold to fully justify such a change.......?

    Independence would be a big step and a serious matter. Don't you think we should treat it seriously?

  24. Braveheart, taking your idea for a 2/3rds threshold and running with it, how about MSPs needing to have an IQ at least 2/3rds of the national median?
    Perhaps 'Scottish Labour' MSP's could club together. They might have enough for a leader AND a deputy. Oh, and if they add in all their councillors, that could give them enough 'credits' to get a sandwich or two at the canteen.

    As far as thresholds for referendums are concerned, what about (and I know this is a bit 'left field')democracy?

  25. @voicefourowen, I have no problem with democracy.

    My suggestion is that, for major changes to the constitution, there should be a threshold.

    It's a rule that holds true for all constituted organisations (PTAs, Kiddies' Groups etc.) for the simple reason that, if radical change is suggested and opposed, the oposition needs to understand that the changes have popular support or they will feel cheated.

    I quoted a golf club with a two-thirds requirement, but a recent real-life example is the SFA, where the McLeish changes required a 75% majority for them to be accepted.

    It makes sense, you don't want a sizeable rump of the population dissatisfied with a change that they see many people have opposed.

    I'm not suggesting 75%, but it seems to me that, if you want any newly independent country to feel at ease with itself and its population, then a substantial majority is required to vote for the change.

    Or do you think that 50.1% of votes cast is enough? Given turnout at recent elections, let's predict a 65% turnout. 50% of that is less than a third of the voting population.

    IMO, you cannot launch a new country with any confidence if only a third of the population supports its establishment.

    Do you agree? if not, why not?

  26. Braveheart - if you make it compulsory for people to vote you would have an argument. Without that you don't.

  27. raggedyetc....

    If you want to change the constitution you have to enthuse a majority to vote for it.

    If people are not sufficiently motivated by the call for change, it's reasonable to assume that they don't support it.

    It makes no sense to start a new country without the support of a healthy majority. Otherwise it means the majority don't support the new coutry.

    That's a recipe for diaster, if you ask me.

  28. Braveheart I think your idea is loopy and more than that I simply do not understand the determination of some Labour activists to defend the Union to the death rather than take a more pragmatic view of matters.

    This will lead to your party splitting you know because many Labour activists as well as voters just don't feel that way.

  29. Indy

    sorry... which idea is loopy, and why?

    That we should find a solid majority before changing the constitution... surely that's common sense. You wouldn't want a grumpy 49% not wanting your new country. Or are you saying you wouldn't you care?

    Is it another idea that's loopy? Please let me know.

  30. Braveheart - by that logic the country (UK) has never supported a government.

    Now, while in evolutionary terms they(the non voters) may well be proven to have chosen the less harmful track, it's not the one the 'heavies' have chosen and are now free wheeling downwards screaming hysterical success while secretly panicking to gain back some semblance of control.

    As to recipe's of disaster - we could call this one 'The Dad's Army Flambé - Don't Panic! Don't Panic! while facing a tsunami with a soup spoon.

    For myself I'd want to cut and run, give myself some time to cogitate on problems and activate solutions. Meanwhile LPW and chums can have a couple of hundred Aberdeen Angus to create the finest vellum scrolls on which to record the finest, most definitive and irrevocable constitutional edicts known to man using the blood, skin and bone of the vanquished.

  31. Scottish republic8 June 2011 at 16:11

    Clearly the Tories don't agree with the 'witerings' of the governor general M Moore.

    He may lose his job.

    He's an ass.

  32. @Crinkly & Ragged Arsed Philosophers

    "...by that logic the country (UK) has never supported a government."

    We don't elect a government by referendum. And electing a government to govern under the constitution is quite different from proposing radical changes to the constitution. I'm sure you can see the distinction.

    An example: you and me and a bunch of cycling enthusiasts set up a cycling club to do road races. It works well for a number of years, membership grows.

    Then some members say "we're sick of road racing, we want it to be a sailing club". But you don't want that, after all you set up the club as a cycling club, and have invested time, money, energy in it as it is. It suits you and me and our mates fine, thank you very much. And you're not intetrested in sailing and it is, after all, a cycling club.

    "Why don't you go away and start your own club and do whatb you want?" you ask. "No fear", they say, "there's plenty of money in the bank, premises, ready made materials and processes here we could ue. We're turning it into a sailing club."

    Ah but", you say "the constitution requires a two-thirds majority to change the purpose of the club."

    Quite right too. Why should the carpet-baggers get an easy ride for their opportunism?

    Now. If they can muster their two thirds majority then it would be reasonable to conclude that the club actually was not working well. Regretfully, the games a bogie.

    But if they don't, then status quo wins. And also quite right.

    If you want a sailing club, but don't have solid support for it, stay in the cycling club, or go form your own sailing club with your own constitution.

    Could you answer the question I asked Indy? You surely wouldn't want a new country with a large sullen minority (or even majority) who didn't want a new country? Or wouldn't you care?

  33. @ Scottish Republic...

    "Clearly the Tories don't agree with the 'witerings' of the governor general M Moore."

    "witerings", is that the North American spelling of "witterings"?

  34. Braveheart - Save your fingers ; 'Crinkly' will do.

    And to answer your hypothesis; that which you hypothesise is what we already have.

    And in practical terms I see it as removing a practice that is proved to have failed.

  35. "Crinkly & Ragged Arsed Philosophers said...

    Braveheart - Save your fingers ; 'Crinkly' will do."

    Don't worry about my fingers, I just cut and paste...

    And I haven't hypothesised about anything. I merely asked a question... to whit....

    "You surely wouldn't want a new country with a large sullen minority (or even majority) who didn't want a new country? Or wouldn't you care?"

    You don't have to avoid answering it, but we all know what avoidance means .. it means you don't have an answer...

    Prove me wrong... :)

  36. Anonymous 7 June 2011 11:23 & 7 June 2011 13:24...

    I gather a good deal of research has been conducted behind the scenes into the compatibility of the referendum with Holyrood's powers under the Scotland Act. Legal advice from the law officers, however, is generally not disclosed to the public. This practice is not limited to the referendum. Secondly, on the Scotland Act, referendums and Holyrood's legislative competence, I've made a case why it is competent here - with links to a dissenting analysis from Love and Garbage.


    In all honesty, sovereignty is never an idea I've ever been able to get particularly excited by. Like many things, theoretical liberty in law is fettered by more diffuse, but no less binding social ties which do far more to determine what happens in our politics, than sovereignty. That said, it is clearly a critical aspect of the myth of British constitutionalism and a cherished prop of the pompous dignity of the House of Commons.


    As I tried to suggest above, my sense is that there are two arguments being muddled up here. Firstly, a cavilling constitutional point to interest nobody - and secondly, a more substantial question about the legitimacy of the referendum process (which should not be taken as an indication I agree with the two-referendum argument. I don't).

  37. LPW - no argument with your critique - my humble effort was designed purely to take the legs from the pomp of arcane instruments designed to overwhelm by confusion.

    For clarity, a note could be inserted under each question saying the first is for independence the second for continuing in the union.

    Braveheart -if you're still reading -I consider I have answered your question.

  38. LPW

    Interesting you didn't respond to my point about a threshold?


  39. Braveheart,

    I'm generally unsympathetic to thresholds, myself. Scotland is not a golf club. Here's an interesting historical fact which may afford some perspective - during the French Revolution, election turnouts were often low. There are many reasons why folk don't vote. All we can say with confidence is that they did not do so - their whys and wherefores and their reasons are so manifold as to be inscrutable. Certainly, there is enough inertia in the world, without the status quo claiming all those who are sufficiently indifferent about their country's future, that they disdain to cast their ballots one way or the other.