10 January 2012

UK Ministers put the Union "to the touch, to win or lose it all"?

Popular legal politics is a tricky business. Without denigrating the wisdom of crowds, or underestimating the faculties of the public, you can comfortably bet your last shilling that the majority of the population won't have read the law you are proposing or opposing.  Politicians and press - sometimes understandably, sometimes self-servingly and often just ignorantly - gloss the issues, talk about some aspects and not others, peddle particular images and endlessly repeat comprehensible scenarios, to demonstrate what their laws will do.  Whether or not they align with a proper interpretation of the underlying law, these images gain and maintain far more purchase on the public imagination.

Days before Christmas, the BBC brought us rumours from Whitehall that the Westminster government was likely to use powers conferred under the Scotland Act 1998 to eliminate the very real legal dubiety surrounding Holyrood's power to hold any referendum on Scottish independence under the law as it stands. However you might hope or believe such litigation would be resolved, it has been clear for a good while that any such challenge would very likely delay the referendum being conducted - potentially for years, if unremedied before Holyrood legislated for a referendum to take place. Just last week, I welcomed this development as a way of ensuring the referendum didn't get waylaid in the courts, but suggested that things would get politically...

"spicier if Michael Moore fancies himself for a cunning so-and-so, and he and his colleagues lose sight of their primary aim, and try to use a section 30 order to politick in their own preferences for an early referendum poll, by time-limiting the referendum competence to 2013, 2014 or the like".

As it happens, I picked the wrong Machiavel, and it was actually David Cameron who clumsily and predictably lost sight of what ought to have been the government's essential goal - ensuring the referendum could take place without unnecessary judicial deliberations - and tried to weasel in give the heroic impression he intended to impose conditions, play the tough guy, and pander to cock-eyed Cochers and his ilk by "taking the fight" to the perfidious Nats. Thanks in great part to Nationalist unwavering insistence that they have the power to call a referendum under the Scotland Act as is, aided and abetted over the years by pronouncements from Wendy Alexander and the Prime Minister himself, hitherto, the Scottish public discourse has been almost exclusively dominated by the idea that law presents no impediment to Holyrood holding an independence referendum on its own motion, no bother. For years, most have shrugged or poo-pooed the importance of the legal arguments, if they were even aware of them.  As such, is it surprising that Cameron's sudden intervention was understood in the hostile way it was, stirring up old political sensations? Absent any consciousness that technical legal fixing was called for, it looked like high-handed and presumptuous meddling. As the miffed Alex Massie had it...

"Cameron says he does not wish to "dictate" anything to Scotland. Nothing, that is, except the timing and questioning of the referendum to determine the country's future."

Given today's statement in the House of Commons and consultation document from the Secretary of State for Scotland, Cameron's gambit looks doubly ill-judged.  Instead of fierce imposition of a referendum question hostile to nationalism, to be asked in the next year, Moore coolly outlined a consultation, talking about moderation, sense and constructive co-participation in a serious process.  For the first time, Michael Moore unflinchingly outlined Her Majesty's Government's belief that Holyrood is legally incapable of holding an independence referendum. His reasoning is essentially identical to that I outlined in this blog. So what does he propose? Moore is minded to use a s30 Order under the Scotland Act 1998 to provide for a referendum on Scottish independence to take place. Before the final terms of such an Order are adopted, he intends to hold a consultation on "Scotland's constitutional future", closing on the 9th of March. The full document he has produced can be consulted here, including the draft Order across pages twenty two and twenty three. For brevity's sake, I won't discuss all of its contents now, but will instead focus briefly on one - tactically fascinating - element of it.

Perhaps the most striking feature of this draft Order is that it would explicitly rule-out the Scottish Government asking any "devo-max" type question alongside "full independence". How precisely? The Coalition's proposed s5A amendment to Schedule 5 of the Scotland Act reads as follows:

“5A.—(1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met.
(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision made by the Parliament.
(3) The date of the poll at the referendum must be no later than ***.
(4) There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.
(5) The persons entitled to vote in the referendum must be the persons who would be entitled to vote in an election for membership of the Parliament—
(a) if one were held on the date of the poll at the referendum, or
(b) if one were held on that date but alterations made in a register of electors after a particular date were disregarded.
(6) The referendum and arrangements in connection with it must be in accordance with Part 7 of the Political Parties, Elections and Referendums Act 2000 (referendums) as if the referendum were within section 101(2) of that Act, subject to any modifications specified in subordinate legislation.”

That last section refers to the participation of the Electoral Commission in the referendum process. This includes extensive provisions potentially placing limits on the amounts of money participants can throw at the referendum. For devo-max, and those keen on the idea of having it on the ballot, section 5A(4) is crucial. Assuming agreement where none necessarily exists, it would obviously prove invidious to ask the Scottish public  "Do you want independence or devo-max?". Any referendum which countenances the inclusion of a "devo-max" type question would require at least two questions, or one question and three options: independence, devo-max or the status quo. This draft Order explicitly seeks explicitly to exclude any poll structured either of these ways.  "There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses".

For those who have argued that defining this centre-ground of more devolution would vitally determine the outcome of the referendum, increasingly, it appears as if we may find ourselves presented with an either/or question. Independence or nowt.  As I have argued before, how you respond to this predicament likely depends on whether you regard independence as unwinnable at the present time, or whether you believe folk can be persuaded by the right configuration of advocacy and luck. If the former, you'll be cursing blackly and hoping Holyrood repel whatever final Order Moore comes up with, and "more powers" somehow finds its way onto the SNP's ballot. For those, by contrast, who suspect that having devo-max option on the paper diminishes the appeal of independence - and there is some polling which supports this analysis - the prospect of a clear yes-or-no referendum is more liable to be attractive.

Not so, one imagines, for those folk in Labour, Liberal and Tory parties, who saw the promise of making a positive "devo-max" Unionist case as the best basis for arguing against Scottish independence. Instead of cataloguing the terrors which an independent Scotland would be assailed by, dominated by the negative Grinchly campaign spirit of "No", Malcolm Chisholm and others were clearly beginning to envisage articulating a median position to rebuff the potential that Scotland votes to become independence. Perhaps the most significant aspect of today's statement is that Moore is proposing to deprive them of that argument, relying instead on a "positive case for the Union" to be made without suggesting any positive changes to the Union. While the consultation may well vary the final terms of the Order, it presents a real tactical challenge to Unionists who hoped to oppose the change the SNP is proposing with meaningful change of their own.

On another interpretation, Moore's desire for binary resolution of Scotland's constitutional future could be seen as a decidedly risky expression of  confidence that the case for the Union remains "axiomatic" in Scotland. While his tone today was temperate where Cameron was provocative, it may well be that the improbable Michael Moore's quiet intervention will be responsible, for Unionists and Nationalists both, for making this 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. Another good analysis LLP. It will be interesting how the Devo Max issue is played - by all parties. If the Unionists continue to oppose it with no commitment to extended powers will the SNP take the risk. IMHO, given the consequences of failure to meet the 50% and in the knowledge of what the Canadian government did post the failed Quebec vote, the Unionist 'retribution' would be a disaster. The SNP know this but I suspect most of the Scottish public don't?
    Perhaps the SG should hold a referendum first to establish the the voters want the Devo max option?
    Obviously hat would be inordinately expensive but a robust opinion poll would surely give a positive result and this could be presented as demanded by the voters in what Mr Moore call proper consultation.
    The independence fundamentalists might not like it but a negotiated Devo light, successfully executed would surely turn into a real vote for independence especially if the Tory party gets it's way on Europe or starts another war.
    Of course that would require the SNP to spell out what Devo max would be - not beyond the wit of man, surely?

  2. It appears both Cameron and Moore have been 'Ecked' with the SNP announcement of the referendum to be held in Autumn 2014 tonight.

    Let's remember what the SNP said at conference - The SNP will only be campaigning for independence it will be up to others to bring forward a devomax/FFA option.

    In international law (which trumps Westminster) the sovereign people of Scotland have the legal right guaranteed by UN Charters, Helsinki Accords and the Treaty of Vienna to hold a referendum on the issue of independence.

    Further the UN legislation states the power from which the other is seceding can have no role in the organisation of or campaigning in the said referendum.

    It is interesting that Cameron and Moore have gone back on their stated position of making their legal advice on the issue of the referendum public. There is the fetid aroma of WMD and the Iraq invasion rising around this volte face.

    Eck has been shaking hands with a lot of Cameron's enemies in Europe and I would suggest the support for 'plucky' Scotland in both the EU and Council of Europe to uphold international treaty and law trumps any section of the 1999 Scotland Act concerning constitutional issues.

    Cameron, as he did before Christmas with the EU has prematurely ejaculated his position yet again.

  3. I am a bit sceptical about the International Law argument. The SNP in general and Salmond in particular have made it clear that as a Government they will only operate within the restrictions of the Scotland Act 1998 including on the referendum.

    Indeed the first referendum draft question published in 2008 I think suggested the referendum would be quite a convoluted question on negotiating independence for the reason I think of minimising the legal challenge.

    I just cant see the Scottish Government tearing up this approach and going East Timor like for an indpendence plebiscite independent of the devolved legislation.

    Pragmatically, and as a supporter of independence, it would be better if the UK Government clarified the legal issues and gave the power unambiguously to the Scottish Parliament. For as it stands, and LPW and others have pointed out, any individual can and will raise a legal challenge to a referendum bill under the current powers of the Scottish Parliament. May not succeed but add 18 month delay to any timescale.

    Agree with all the point about Cameron's political lack of ability though.

  4. Groundskeeper Willie10 January 2012 at 21:45

    Do the SNP have a mandate to ask a question on devo max in a referendum?

    Was that in the manifesto?

  5. @groundkeeper Willie..

    no it was not and they do not....

  6. "Do the SNP have a mandate to ask a question on devo max in a referendum?

    Was that in the manifesto?"

    Yes and yes. As I've been saying for weeks and the FM confirmed on Newsnight Scotland this evening, the referendum pledged a vote on "full economic powers". The word "economic" is clearly redundant there if independence is the only option.

    Next question?

  7. Questions LLP may be able to answer:

    The SNP have said they want to allow 16 and 17 year old's to be able to vote in the Referendum. Would that be legal?

    Another question: could Westminster impose a minimum target that is required for a "Yes" vote? i.e. 50% of the eligible electorate?

    Thirdly, can Westminster stop the proposed date for the Referendum, as announced by Salmond?

    Early days yet, but I get the feeling that Westminster is going to try and drag this whole process out, with the SG being unable to do much about it.

  8. Thon fla fae Campbeltown11 January 2012 at 00:48

    For me it is irrelevant that Devo Max was not specifically mentioned in the SNP Manifesto.

    This is because the SNP included Devo Max as an option in their Independence Referendum Bill 2010. In addition, the National Conversation and subsequent opinion polls have all confirmed that a significant majority of people in Scotland are in favour of Devo Max. Furthermore, many non-SNP politicians and groups are in favour of either Devo Max or reform just short of Devo Max , from Tories like Murdo Fraser and the centre-right think tank Reform Scotland to those such as former Labour First Minister Henry McLeish and Malcolm Chisholm.

    Moreover, the Tories and the Lib Dems have no authority to criticise the inclusion of a Devo Max option in the referendum. Neither of them included AV in the 2010 Election Manifestos and yet they agreed as a Coalition Government to hold a referendum on AV in 2011.

    With regards to the legality of the Scottish Parliament legislating for an Independence Referendum, I agree with the position taken by the late Professor Sir Neil MacCormick ('Is There a Constitutional Path to Scottish Independence?' Parliamentary Affairs(2000) 53(4), 721-736). He argues that although the Union is a reserved matter, it is clear that the Scottish Ministers have the power to enter into negotiations with the UK Government on any issue. The Scottish Parliament has the power to initiate referendums on any non-reserved issue. As the ability of the Scottish Ministers to enter into negotiations with the UK Government is not a reserved issue, the Scottish Parliament can legally pass an Act which allows the Scottish Government to hold a referendum on whether or not the Scottish Ministers should enter into negotiations for Scottish Independence.

    Nonetheless, it is clear that the argument over the legality on an Independence Referendum initiated by the Scottish Parliament is clearly a moot point. Legal academics and lawyers are totally divided on the issue. As such, it is likely that it will go to the courts unless the UK Government grants the Scottish Parliament explicit authority to hold a referendum on the constitutional future of Scotland. The UK Government does not even need face the political pressure that would be involved in initiating court proceedings (because this would involve going back on their position in May 2011). Thanks to the vast expansion of the law of title and interest in ‘public law’ judicial review cases (I say ‘public law’ because in Scotland it is possible to judicially review golf clubs and private sports organisations such as the SFA) by Lord Hope in Axa v Lord Advocate (2011), any individual, political party or pressure group can now challenge the legality of the referendum. However, it should be borne in mind that in every single case where a party has argued that the Scottish Parliament did not have the authority to enact a particular law, the courts have decided in favour of the Scottish Parliament on every occasion.

  9. The document seems to say (p11 & p13) that the wording of the question will be agreed with Westminster and the Electoral Commission before it passes to Holyrood. Hmmm.

    Also Moore's argument for not including Devo Max appears a little weak as an argument, per se - i.e. that the Devo Max question would just be so terribly complex and confusing. (Erm, could that consideration not have gone before their preferred Electoral commission first?).Anyway, that aside, the loss of Devo Max is rather odd.

    Moore's document is rather paradoxical. On the one hand it presents itself in an open handed generous manner. Look what we're doing for you, unasked. On the other its like a like a statement of Unionist fundamentalism. There, its attitude is - concede nothing except the bare minimum (the Scotland Bill) which was anyway already agreed, then campaign against Independence with the full might & main of the British State Apparatus and its media gimps on the grounds that there is already in train the largest transfer of powers in UK history, thus peeling off the Devo Max supporters and various other waverers.
    Moore seems to be such a fundamentalist - though not keen for personal reasons on being called a Unionist. It was noticeable how he squirmed and ran a mile from the input in the debate from Northern Irish MPs. Apparently after Kierkegaard wrote Enten-Eller he was plagued with small boys jumping out of hedgerows shouting at him : Either-Or! Either-Or! Still, I don't get the impression that Moore's of the same existential stripe as the Great Montrose (or indeed the great Soren). Others are suggesting (unkindly - probably Ian Bell) that he's Gideon's fag.

    Bewilderment abounds all over in fact. Hamish Macdonell is proposing the 'masterly interpretation' (according to Fraser Nelson) that Salmond will decline the shy advances of Young Frankenmoore and in fact has been attempting to get the Referendum into a bloodbath in the courts all along - and this explains his long-term sniping at the supreme Court. He doesn't want a referendum at all. Hmmm.
    'Thon fla fae Campbeltown' (above) says that 'entering negotiations' is a nice semantic slalom around the critical point made in the document that any 'underlying purpose' that was basically about Independence will be ultra vires. Again, as he says so authoritatively with his reference to MacCormick, it will end up in the courts. I think one of the SNP MPs in parliament today also mentioned Stephen Tierney's opinion. But is it the case that the SNP have indeed rejected this so-generous offer of legal respectability from Moore?

  10. Thon fla fae Campbeltown11 January 2012 at 01:58

    Barbarian of the North -

    'The SNP have said they want to allow 16 and 17 year old’s to be able to vote in the Referendum. Would that be legal?'

    If the Scottish Parliament has the power to hold a Referendum on Independence then they would also have the power to set the rules of the game for that Referendum. As such, the Scottish Parliament would be able to extend the franchise to 16 and 17 year olds for the referendum. In addition, it should be noted that the Electoral Commission only has the power to regulate Referendums initiated by the UK Parliament. As an aside, I would like to highlight the fact that an MP in the Commons asked why the SNP had not extended the franchise to 16 and 17 year olds in local government elections and Mr Moore took this as an example of inconsistency in SNP policy. However, it is made explicitly clear in the Scotland Act 1998 (Schedule 5, Part II, Head B, B3) that the franchise in local government elections is specifically reserved to the UK Parliament.

    'Another question: could Westminster impose a minimum target that is required for a "Yes" vote? i.e. 50% of the eligible electorate?'

    Thanks to the legislative supremacy of the Queen in Parliament, Westminster has the legal power to do whatever it wants. Theoretically, it could pass an Act ordering the death of every child with green eyes. However, in such an event it is likely that there would be some form of revolution and a new Parliament would be created which would be subject to legal limitations.

    I doubt that Westminster would ever impose a minimum 'Yes vote' target in the Referendum. It would be seen as a major deviation from internationally accepted constitutional practice. The 1979 Scottish Assembly Referendum was widely condemned for including the amendment introduced by Labour MP George Cunningham which required a 'Yes Vote' of 40% of the eligible electorate - an incredibly high hurdle when one considers that a nation is generally regarded as being lucky if it manages to get two thirds of the eligible electorate to actually cast a vote. In all of the subsequent referendums that have been held in the UK since 1979 there have been no conditions imposed as to turnout or 'Yes Votes.' If Westminster were to break with this established precedent it would be seen as an extreme case of bad form.

    'Thirdly, can Westminster stop the proposed date for the Referendum, as announced by Salmond?'

    See the first paragraph of the second answer above.

    Westminster would be very foolish to attempt such a tactic. Iain Gray made Alex Salmond to state explicitly and repeatedly during the final two weeks of the 2011 Scottish Parliamentary election that the Referendum would not be held until the second half of the Scottish Parliamentary session. The first half of the Scottish Parliamentary session finishes around late November/early December 2013. It is clear that Salmond could not have held the Referendum in June 2014 due to the European Parliamentary elections. As such, by setting the date for the Referendum in Autumn 2014 Salmond can argue that he is effectively holding the Referendum at the earliest legitimate opportunity. With an explicit statement in the minds of the voters that the Referendum would only be held during the second half of the Scottish Parliamentary session it is clear that the Scottish Government does not have a mandate to hold a Referendum during the first half of the Scottish Parliamentary session. As such, Salmond has political and democratic principle on his side in his choice of Autumn 2014 and he can also claim that it is the earliest possible date he could have possibly chosen given the SNP’s mandate from the Scottish people. The UK Government would seem to have set themselves an extremely difficult task if they want to make a democratically legitimate and intellectually honest argument that the Referendum should be held at a date earlier than Autumn 2014.

  11. Groundskeeper Willie11 January 2012 at 06:54

    Can someone show me where in the SNP's manifesto they underake to hold a referendum on devo max?

    Thank you.

  12. The SNP doesn't want to hold a referendum on Devo Max, we want to hold a referendum on Independence. We did make it clear that since there is substantial public support for Devo Max we would consider adding a question on that to the ballot paper. However the Tories, Lib Dems and Labour have ruled that out. They are going to campaign for the Union as it is with no further devolution. And we will campaign for Independence.

    The legal issue was always, in my opinion, really a political issue. And it's not an issue any more really. The UK Government has committed to passing legislation to ensure that the referendum cannot be challenged. There's no going back on that.

    As for the particular issues they have raised - the timing, the Electoral Commission, votes for 16 and 17 year olds. The timing is non-negotiable. In my opinion the Electoral Commission issue may be negotiable. Votes for 16 and 17 year olds I am not sure about. Personally I think it is nonsense, there should be a single age at which one ceases to be a child and becomes an adult with rights such as being able to vote, get married etc and that age should be 18. But I am in a minority in the SNP in believing that.

    Any road, I have no doubt that there will be further manoeuvring but essentially the SNP has already won the game of who is going to hold the referendum. All we need to do now is win the vote!

  13. Not sure that Montrose's appetite for the decisive strike is the model for us; his decision to let his troops sack Aberdeen was a monstrous one on every level.

    I think the historical figure that's going to count in the next two years is rather that sleekit rogue Rob Roy, hovering on the fringes of Sherrifmuir and weighing up his options before wandering off with his men.

    Yet again, one marvels at how lucky Eck is in his enemies. In Cameron's favour, he has forced Eck to stand up but it all could have been handled so much better, as any marriage counsellor could have told him. Am no lawyer, but surely there are enough precedents in recent years - all those divorces in eastern Europe and the former USSR show that the legal niceties are mere shibboleths.

    A fine analysis again LPW, many thanks, and some excellent contributions on the thread.

  14. Obviously, today's 16 and 17 year olds will be will be 18, 19 and 20 in Autumn 2014, therefore entitled to vote come what may. The issue is really the eligibility of today's 13, 14 and 15 year olds. Would any of you happen to know the numbers involved?

  15. It occurs to me that the SNP should be careful in their desire to extend the franchise to 16 and 17 year olds. However laudable a policy it would surely preclude simply using the existing electoral roles for the referendum, and that could have the unintended consequence of opening up a whole debate on eligibility, for example concerning non-resident Scots, an issue that's already been raised in the Commons.

    It seems to me it would much easier to just say "the same criteria apply as in all other elections" than to potentially open a can of worms by tinkering with it.

  16. Salmond mentioned on Radio Scotland this morning that 16 and 17 year olds are already included in the electoral register. It would seem that 16 and 17 year olds are already encouraged to register to vote even though they can’t actually vote until they’re 18.


    I think the argument that if you are old enough to pay income tax, join the armed forces and get married then you should be entitled to vote is a very strong one.

    The Scottish Government would be off its chump to hand control of the referendum to the Electoral Commission. There is no good reason why the process should not be organised and controlled by a body that is accountable to the Scottish Government that is accountable to the people of Scotland.

    The idea that non-resident Scots would have a vote is based upon the ethnic (bad) instead of civic (good).

  17. revstu


    Nicola confirmed on Monday that the snp prefers a single question referendum....

    ..would that be a single question on "devo max" or a single question on "independence"?

  18. I can confirm that 16 and 17 year olds are already on the electoral register (in households that are registered).

    Braveheart - Independence.

  19. On the issue of this Devo Max, which has as yet to develop form or substance.

    It would be interesting to see the reactions from the Scottish Unionist parties were it to include a proposal that negated the need for Scottish MPs to attend the hallowed halls of Westminster?

  20. A lucid post today from the UK Constitutional Law group in support of Salmond.

    They make a familiar point about the wording of the question:

    "...the phrasing of the question can influence the outcome of the vote. People may be more likely to support a positive call for a sovereign Scotland than support a negative call for the break-up of the Union."

    BUT they also say its a single question referendum, and if Scots say NO that'll be it all over for at least 50 years.

    It can be read at the following:


  21. @Orpheus...

    "...A lucid post today from the UK Constitutional Law group in support of Salmond...."

    Not really "in support of Salmond"

    "..A quick glance at Schedule 5 of the Scotland Act 1998 makes this clear: the Scottish Parliament cannot pull Scotland out of the Union. Under the present constitution, decisions about Scottish independence are left with the United Kingdom Parliament.

    Does this mean that the Scottish Parliament cannot hold a referendum on independence? Obviously not. The Scottish Parliament has wide powers, and can almost certainly run a referendum if it wishes. This referendum would not fall foul of matters reserved to Westminster in the Scotland Act because it would not be binding, and so would not, in itself, alter the legal relationship between Scotland and Westminster – though it might well affect the political pressure for some sort of change. Though this might well end up in the Supreme Court, it is likely that Alex Salmond is right: the Scottish Parliament can hold a referendum on independence. But it would only be an advisory referendum: it would be open to the United Kingdom Parliament to ignore the vote...."

    Nobody ever doubted that Holyrood could hold a referendum (after all Strathclyde held on on the sell-off of Scottish water).

    But it is a politicl gesture if not legally binding.

    If you must have a referendum, then a legal referendum would seem desirable to me, if not the SNP.

  22. "But it is a politicl gesture if not legally binding. "

    There is no such thing as a legally binding referendum anywhere in the UK, and can't be. Parliamentary Sovereignty and all that. All UK referenda are advisory. A referendum run by Westminster would be no more legally binding than one run by Holyrood.

  23. @Anon....

    you said "..There is no such thing as a legally binding referendum anywhere in the UK, and can't be..."

    to quote the UK Constitutional Law Group


    quoted approvingly above by Orpheus,

    "...whilst the Scottish Parliament can only mount an advisory referendum, Westminster could hold a mandatory referendum: a yes vote would automatically begin the process of secession. ..."

    They also address the Parliamentary sovereignty question.

    Read it and comment again.

  24. Thon fla fae Campbeltown11 January 2012 at 18:51

    Braveheart -

    '"...whilst the Scottish Parliament can only mount an advisory referendum, Westminster could hold a mandatory referendum: a yes vote would automatically begin the process of secession. ..."'

    'Read it and comment again.'

    The idea that there is any practical difference between an advisory Referendum on Independence and a Mandatory Referendum on Independence is wholly and entirely false.

    One need only think about the practical impact of the consequences of a 'Yes Vote' on a Referendum on Independence initiated by the Scottish Parliament. Do you honestly think that the UK Government would ignore the decision of the Scottish people? The immense political pressure on the UK Government to 'begin the process of secession' would be the same if the vote was initiated by either the Scottish Parliament or the UK Parliament. If the UK Government has any sense of respect for the principle of self-determination a 'Yes Vote' would compel them to enter into immediate negotiations to secure Scottish Independence.

  25. Braveheart

    Will you vote for independence for our nation?

    If not why not, as SNP hating aside what other reason could you have for voting to retain the defence British union?

  26. Advisory, mandatory, legally binding - this is all nonsense.

    The only thing that matters about the referendum is the outcome and it is essentially a political process not a legal process. Yes I know technically it is a legal process but actually it is not.

    In case you have not noticed the UK Government has made a very public offer to pass legislation or make an order or whatever it is to ensure that the referendum cannot be challenged in the courts. That is very decent of them and I am sure the SNP will take them up on that - they did after all suggest that the UK Government could do this in the previous session of parliament.

    So the referendum is going to happen and all this blathering is moot.

  27. Perhaps the main opposition parties (in Scotland) want to establish it is they who will set time and terms for any referendum anywhere in the UK.

  28. Thanks for the answers Campbeltown.

    The 16/17 year olds getting the vote is - in my opinion of course - extremely dangerous for the SNP, because it is at best an extremely cynical move to get votes purely on free university tuition fees. At the other extreme, the SG could potentially be open to accusations of trying to deliberately influence the vote through what could be considered an abuse of power.

    Appearing to be manipulating the format of the Referendum would probably blow up in their face, and it would give Westminster the perfect excuse to ignore the result anyway.

    Plus you could argue that the SNP won their victory last May without the support of under-18's. So therefore why do they feel it necessary to include them simply for the Referendum?

    One thing is for certain: this is going to drag out for months!

  29. Groundskeeper Willie11 January 2012 at 23:20

    Graham said...
    'I think the argument that if you are old enough to pay income tax, join the armed forces and get married then you should be entitled to vote is a very strong one.'

    There's no minimum age to pay income tax.

    16 year olds need parental consent before they can sign up. They can't be deployed in a conflict until they're 18.

    Yes you can get married at 16. I'm not sure it's something to aspire to though.

    And of course you'd need someone to drive you to the reception. You'd be too young. And forget about a wedding toast. You'd be too young.

  30. Actually Barbarian votes at 16 is not solely an SNP policy.

    In fact Labour MPs including Ed Miliband, Douglas Alexander and Margaret Curran all voted for 16 and 17 year olds on the electoral roll to vote in the AV referendum.

    Labour and Lib Dem MPs and MSPs including the Leader of the Lib Dems Nick Clegg, the Deputy Leaders of both parties in Scotland and the Shadow Scottish Secretary Margaret Curran have given their support to the Votes at 16 campaign and the Lib Dems, who voted with the SNP to introduce votes at 16 in Scotland’s health board elections, promised to lower the voting age in their 2010 manifesto.

    So while I may personally disagree with SNP policy on votes at 16 the SNP is at least being consistent whereas Labour and the Lib Dems are being inconsistent.

  31. Groundskeeper Willie11 January 2012 at 23:28

    Maybe if we're going to have two questions we should just through caution to the wind and ask a few more while w're at it, just to get our money's worth.

    Like for instance:

    3. Which currency should an independent Scotland have
    (a) the euro
    (b) sterling
    (c) the groat

    4. Who should fix interest rates in an independent Scotland
    (a) the European Central Bank
    (b) The Bank of England
    (c) Mel Gibson.

    Any more?

  32. That's a very good point Willie because of course independence will enable the Scottish people to decide on those issues, along with many others, which at present we can't.

  33. Groundskeeper Willie says "There's no minimum age to pay income tax".
    At 16 no-one can elect to put their income in your name without your permission. Or claim your allowances. 16 is the age of majority for tax purposes.

    So Graham's points stand.

  34. "While the consultation may well vary the final terms of the Order, it presents a real tactical challenge to Unionists who hoped to oppose the change the SNP is proposing with meaningful change of their own."

    Or possibly this was the plan all along. The unionist parties don't want the chance of ANY meaningful changes.
    Keep devo-max off the referendum at all costs. Then the unionist parties can always promise 'increased devolution' in subsequent elections. Which would amount to sweet FA.

    Perhaps Salmond should go for a fast yes/no referendum, then a seperate referendum on Devo-Max in 2014/2015 if independence is lost.

  35. I'd like to hear the rationale for excluding 16 and 17 year olds from the democratic process. 16 and 17 year olds excluded from parliamentary voting get to vote in the next election in another 4 or 5 years. Not so with the referendum. How fair is it to exclude young adults from the democratic process yet expect them to live with and respect the referendum result and all its consequences potentially for the rest of their lives?

  36. groundskeeper willie12 January 2012 at 09:27

    I'd like to hear the rationale for excluding 14 and 15 year olds from the democratic process. 14 and 15 year olds excluded from parliamentary voting get to vote in the next election in another 5 or 6 years. Not so with the referendum.

  37. Groundskeeper Willie12 January 2012 at 09:36

    terrence said...
    'Groundskeeper Willie says "There's no minimum age to pay income tax".
    At 16 no-one can elect to put their income in your name without your permission. Or claim your allowances. 16 is the age of majority for tax purposes.

    So Graham's points stand.'

    No it doesn't.

    The reasoning behind the point is 'no taxation without representation'

    If someone under 16 has sufficient income they are taxed on that income.

    Likewise with capital taxes and indirect taxes.

    So therefore using the rationale we should say that everyone who pays tax, direct or indirect, should have a vote.

    And if they're old enough to vote, are they old enough to drive, buy and drink alcohol, fight in wars and even have a tattoo?

    Goodness, maybe they should even be allowed to become MPs or MSPs.

    Or are they considered too immature for those activities?

  38. Groundskeeper Willie12 January 2012 at 09:43

    I'd like to hear the rationale for excluding all children from the democratic process. Children excluded from parliamentary voting get to vote once they're eighteen. Not so with the referendum. How fair is it to exclude young people from the democratic process yet expect them to live with and respect the referendum result and all its consequences potentially for the rest of their lives? Especially when they'll have to live with the consequences for longer than those who are allowed to vote!!!

    OMG it's so unfair!!!

    I hate you!!!!

    I wish I hadn't been born!!!

    I'm going to my room!!!

    ......exits stage left to sound of slamming door and doesn't re-emerge until mealtime.

  39. http://tinyurl.com/7rfql22

    Canon Kenyon Wright seems to believe that the time has come to uphold our claim of right.

  40. Groundskeeper Willie12 January 2012 at 16:40


    Do you know if the SNP have any plans to repeal S.3 of the Age of Legal Capacity (Scotland) Act 1991?

  41. I posted a link from the UK constitutional law group above (that immediately got infected with a nasty case of troll-fungus).

    But there's a tremendously interesting response to the post by another member of the same Law grouping, pointing up the Internationl Law & self-determination element that was missed first time around.

    Here's the follow-up:


  42. Groundskeeper Willie13 January 2012 at 11:36

    DB said...

    'Perhaps Salmond should go for a fast yes/no referendum, then a seperate referendum on Devo-Max in 2014/2015 if independence is lost.'

    That would be logical but ignores the political consequences for Salmond and the SNP if there's a no vote in a single question referendum on independence.

    Salmond would be seen as a failure and there would be pressure on him to step down. And we all know what happened last time he did that.

    No, a two question referendum is a must for Salmond.

    Otherwise the SNP steps back to the position it was in a generation ago (that's generally reckoned to be 25 years, for those who don't know).

  43. Orpheus, not trolling just pointing out that it wasn't really "in support of Salmond" as you claimed.

    What all of these legal opinions highlight is that the whole thing is a minefield.

    And that's before you add in 2nd and 3rd questions.

    The only thing that will fly is a single in/out question and that's, very obviously, not what Eck wants..

  44. "The only thing that will fly is a single in/out question and that's, very obviously, not what Eck wants.."

    Astonishing as it seems, I'm gradually coming to the opinion that Labour supporters genuinely believe this. Bless 'em.

  45. There is an interesting article in the Herald from Thursday about the referendum in which a Coalition source is quoted saying that if the Scottish Government succeeded in holding a referendum on its terms it would amount to little more than an opinion poll.

    Well, yeah. That was only ever going to be the case. That's what a referendum is surely. A poll of the entire country to see what people want to happen.

    It makes you wonder what the Coalition think other purpose it could have.

    There's an interesting article today by Ian Bell in which he suggests that the reason for the strong opposition from Westminster may be energy as they need Scotland to maintain security of supply. If that is what it comes down to I am sure an arrangement can be made.