29 June 2012

Her Majesty's Thesaurus...

There's something picaresque about the phrase treasure trove.  It conjures up concealed vaults, the muted, mysterious gleam of hoarded silver and gold, of forgotten antiquities stoppered in the earth, waiting for some careless farmer or industrious archaeologist to bare them again to the open sky.

It is a little known fact, but if you are traipsing across the Scottish countryside and accidentally kick a Roman coin from the turf, or unearth some rust-attenuated Medieval instrument of warfare from beneath the mud, you don't suddenly become the lucky new owner of the historical artefact, nor can the land owner loot you of it for her personal collection.  Finders keepers, alas, is not a principle known to the law of Scotland.  Believe it or not, in law, that grimy Medieval penny you pried from the heath is the property of the Crown, and if you pocket it or pop it pride of place on your mantelpiece, you risk being prosecuted for theft.  

The key principle here - cue inevitable Latin - is quod nullius est fit domini regis.  In essence, that which is owned by nobody, accrues to the Crown, and that includes lost treasures of ages gone by which have been sealed beneath the soil by owners long ago gathered up to GodThe grandly-titled Queen's and Lord Treasurer's Remembrancer is tasked with the administration of these regalian rights to treasures disinterredThis morning, she published her Annual Report on Treasure Trove in Scotland, which includes some of the more significant finds reported and claimed for the Crown, running from bronze-age axe heads to Medieval coins, crucifix mounts, a copper Christ-figure to an austere 17th century golden ring, emblazoned with the cheery motto + The + Lord + is + my + helper +. These include a striking Medieval (c.1200) silver seal matrix set with Roman intaglio, found in Doune, Stirling (above, right).  The report notes:

"Seal matrices were used to impress wax seals on documents, sealing an agreement in a literal and physical way. Like many this bears the owner’s name, Thomas de Lorie, although it has not been possible to track this individual down in contemporary documents. This object belongs to a select and significant group of similar seals, all of which reuse Roman gems and it is likely that these gems were not found by happenstance, but sourced directly from the Mediterranean world. The popularity of seal matrices like this reflects the 12th century rediscovery of ancient Greek works, and a growing awareness and appreciation of the Classical past. To a man such as Thomas his seal would have marked him as a cultured and learned individual and one aware of wider cultural and intellectual trends."

I'm particularly keen on a couple of the Roman finds made this last year, from Falkirk and Selkirk. The first is a neat little lion's head, and the second, this startling-looking eagle design, of which the Remembrancer writes:

"A copper alloy mount cast in the shape of an eagle head, the sacred bird of Juno. The eagle is depicted emerging from a flower with a berry held in the beak and was intended as a symbol of good luck or fertility. Mounts of this type were used on the supporting frames of Roman wagons and this is the first such mount from Scotland, with only a small number known from Britain."

The 2011/12 report notes that 165 finders reported their discoveries to the Treasure Trove Unit, with 2,045 individual "portable antiquities" dealt with during the period.  Although theoretically policed by the criminal law, you have to wonder how many more folk will have chanced across some historic gewgaw or ancient fragment on their travels this year, and quietly pocketed them, merrily ignorant about treasure trove, and the ancient property rights claimed by the Scottish Crown.

27 June 2012

Scotland, slander & calumny...

Terence Ewing is a vexatious litigant.  In 2008, believing himself to have been defamed by the Times newspaper, and his case before the English courts having failed, he took himself away on a little jurisprudential tour, up to Belfast and to Edinburgh.

Having arrived in the capital, Mr Ewing hied himself to a public library, where “he downloaded the internet version of the article and read a hard copy of it”.  He promptly raised further legal actions in the Scottish and Northern Irish courts, claiming again that the Times had defamed him.  

In the Court of Session, his case was dismissed in an acid opinion from Lord Gill – the incoming Lord President as is – who described Ewing as a “serial litigator with a long and well-documented record of mischievous and irresponsible ligitations”.  In Gill’s judgment, Ewing had “no connection with Scotland and has no apparent reputation here to defend”, and his appeal was comprehensively refused.

It takes a particularly committed warden of a reputation, actively to travel across jurisdictions to read an article in which you are dishonoured, and I dare say few folk are as committed as Mr Ewing to the business of protecting their names. Yet for calculating so-and-sos, libel litigation on their mind, there may be clear advantages in selecting the legally most congenial forum for the airing your disputes.  For my part, I’m no expert on the law of defamation in any of the UK’s jurisdictions, but I’ve been wondering recently if we’re failing to spot the potential implications of the Westminster government’s upcoming reform of the English and Welsh law of libel and slander. Scotland isn’t exactly inundated with defamation actions at the moment, but might that all be about to change?

Save for Tommy Sheridan’s disastrous foray into our civil courts, we don’t hear a great deal from the Court of Session about alleged calumnies, slanders and libels, reputations ruined and restored.  The Times Scottish correspondent Angus MacLeod unsuccessfully sued the publishers of the Sunday Herald for defamation in 2006, over slighting observations made about his analytic nous in Alan Taylor’s diary.  More recently, former SSP MSP, Frances Curran, sued the Daily Record, over an article which appeared in its pages, in which she was branded a “scab” by the Satsuma Socialist after his successful defamation action of 2006.  Curiously, the Court of Session held that “scab” was not defamatory, as it was “criticism of public conduct in the context of a political struggle” which fell “well within the latitude permitted by the law where comments are made about persons acting in their public capacity”.

By contrast, down south, libel law has been a point of more directed political agitation for some time, and formed part of the Labour, Liberal Democrat and Tory manifestos in the 2010 Westminster General Election. Calls for reform were encouraged by controversial cases, including the British Chiropractic Association’s extended libel litigation against Simon Singh, who criticised their activities in a Guardian column.  The litigation took two years.  

For would-be libel reformers, a major spur to their endeavours have been concerns about free speech and the way in which libel law has been manipulated by powerful interests. While theoretically universal, there to protect the reputations of all persons against malicious falsehood, the expense associated with resorting to the law of libel primarily protects those with wealth enough to retain lawyers.  Yet much of this zealous, reforming advocacy talks about chimerical concepts - “British courts”, “UK law”, “our law” - which gives the impression that we currently have a uniform law of defamation in this country. Which of course, we don’t. 

So what might we be overlooking? While in Scotland we’ve got almost no libel reform pressure to speak of, in Westminster, the coalition have finally introduced a draft Defamation Bill to curb the vigorous jurisdiction of England’s libel courts.  In Scots law, defamation is defined as anything which “tends to lower the pursuer in the estimation of right thinking members of society generally”. The question a court must ask itself is: “Would a reasonable man [sic], reading the publication complained of, discover in it matter defamatory to the pursuer?” In England and Wales, by contrast, the Westminster government wishes to qualify this test.  Assuming that the critical section of the draft Bill passes through parliament unaltered, in future, a statement will not be “defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

It should be obvious that this will be a theoretically much more stringent test for the English litigant to overcome than a Scottish pursuer pursuing a defamation action will have to satisfy. The draft Bill also proposes to amend the defences available to English defendants, including specific protections for “operators of websites” which host defamatory comments, and attaching privilege to peer-reviewed statements in scientific or academic journals.  

No reforms are currently envisaged for the Scots law of defamation, and the coalition government’s Bill currently extends to England and Wales only.  I’m conscious that we get into very tricky terrain here, with thorny legal questions raised about where websites are hosted, which courts have or should have jurisdiction, or whether damages are calculated in Scots law will encourage or deter litigious jaunts north of the border, if this Bill passes. 

I’m no practitioner in this field, and currently ill-qualified to take an informed view on the likelihood one way or the other.  It may well be that Scottish courts will be able, by deploying a range of techniques, to protect themselves from an influx of opportunistic litigants, keen to avail themselves of our soon-to-be less stringent rules on what is or is not defamation of a person’s reputation.  However, as the Sunday Herald’s legally canny publication of a certain “unidentified” footballer’s phizog on its front page ought to remind us, it is generally very unwise to forget that the UK doesn’t have one legal system, but several.  Neglect the impact they may have on one another at your peril.

26 June 2012

"We will just run our own referendum... And it will have two questions."

A queer sight yesterday, in the land beyond the paywall.  The topic is the much-mooted s30 order under the Scotland Act 1998. To be laid before Westminster and Holyrood by the Secretary of State for Scotland, the order will potentially buttress an independence referendum from being challenged and waylaid in the courts - but the London government also look likely to try to use the order as a mechanism to dictate the number of questions which the poll can competently pose, its timing, the extent of the franchise - and so on.  

As regular readers will know, I've blogged ad nauseum on the debatable topic of the referendum's legal competence for the last couple of years.  For those of you new to the controversy, I composed this (hopefully clear and accessible) guide a while back, in response to an intervention by Professor Adam Tomkins.  But since Michael Moore published the results of the UK Government's consultation - all's been mum on the topic, until yesterday. Hamish Macdonell had a report in the Times, quoting a "senior SNP source" to the effect that... 

"Time is running out. There is a very tight timetable here. We have to have the [legislative order] soon. It has to go through both Houses in Westminster and the Scottish Parliament and it has to clear all three before we can start the process of the referendum Bill. The Bill is timespecific too, because there has to be a six-month gap after it has passed the Scottish Parliament before the referendum itself. The UK Government needs to deliver the order soon. If it doesn't, then we will just run our own referendum on the day of the next election. And it will have two questions."

An odd little intervention, this, marked most by the bravado of its conclusion.  Last week, I was airing my foggy-eyed inability to interpret quite what the SNP leadership's game really is on any second question.  The piece reads like a considered briefing by those involved, and contrives still further to occlude an easy interpretation of what the nationalists' preferred poll might looks like. The article continued - apparently paraphrasing unquoted sources from within the Scottish Government...

"If the Scottish government holds its own referendum without formal legal backing, it runs the risk of being taken to court. But Scottish ministers do not believe that the UK Government would do this because of the possible political backlash north of the Border. 

However, the ministers believe that they may be taken to court by somebody else - maybe a concerned citizen with the necessary financial backing.

But, even if they were to lose in court, they believe their referendum would carry political authority, even if it had no legal standing, and this would be enough to force the UK Government into delivering whatever the people had voted for in the referendum."

The central folly afflicting this splendid wheeze is - as I've noted before - if the referendum is challenged in court, it'll almost certainly happen before the poll, not after it.  If this happens, the referendum will in every likelihood find itself stalled by judicial order until the courts have finished scrutinising the legislative competence of the measure under the Scotland Act. It is patently clear that the result of a referendum which does not take place cannot enjoy any "political authority", whatever results it might have generated if the question had been put. 

This is tricky territory for both nationalists and unionists.  While already we see the two campaigns forming up, rolling out their preferred narratives and poignarding each other's perceived weaknesses, essential questions about what choice the Scottish people will be given are still outstanding. They seem confident that their respective answers are "Yes" and "No", but must needs still be uncertain about the question - or questions? - they're answering.  

In the cthonic regions beneath all of their political calculations, for all of their outward confidence, the susceptibility of their measures to legal challenge puts nationalists in a pretty predicament if the SNP reject Moore's proposed 30 order as overly restrictive.  The only substantial reason for doing so, it seems to me, is if the Nationalists are inveterately set on asking a second question on "devo something". And as we've seen, there are a range of plausible interpretations of their conduct hitherto on that score.  Equally, Moore and his colleagues cannot be indifferent to such a situation either.  As his colleague Jim Wallace has explained, the coalition's primary goal in deploying a s30 order was to avoid the situation where a referendum gets tied up in court.  If they fail to persuade the SNP to adopt their text, and the party crash on anyway, damning the odds of a legal challenge and damning the eyes of the jackanape who'd dream of pursuing such litigation, Moore will have failed in his primary goal.  In the event of litigation, expectant eyes will assuredly turn to Westminster too.  What the devil would the Tory-lead government do?

Moreover, while the coalition is keen not to be seen to "dictate terms" to Scottish institutions, it is nevertheless keen to do precisely that, to ensure a voters' roll which excludes those between sixteen and eighteen, and more urgently, which excludes the possibility of posing any second question on enhancing devolution alongside independence.  After his Hugo Young lecture to the folk at the Guardian in January, I had the opportunity of asking Alex Salmond directly whether he'd prefer (a) a simple yes-or-no independence referendum that is legally secure or (b) a multi-option referendum, including devolution-max, which would not enjoy the same level of legal security, and would almost certainly face challenge in the courts? With customary dexterity, the First Minister studiously avoided furnishing me with a direct answer.  The Times piece reminds us but the question remains urgent, and unresolved. 

25 June 2012

Preliminary thoughts on being "Better Together"...

A crony recently made an interesting point.  Today, the anti-independence campaign – Better Together – launches at Napier University in Edinburgh.  A clanjamfry of Labour, Conservative, Liberal Democrat and politically unaligned Unionist opinion, the campaign is being fronted by former chancellor, Alistair Darling.  While it remains a little unclear who the prime movers and characters from the other parties might be, folk like Annabel Goldie and Charlie Kennedy have been mooted as likely Tory and Liberal Democrat contributors.  And one can see why. 

Dame Bella of Doily has mastered the impossible trick of being a personally likeable – if electorally unsuccessful – Tory character, spiced with humour and not beyond the odd matronly single entendre.  While Kennedy looks increasingly seamy, when he’s good he’s still very, very good, coming across as an eminently honest, authoritative, and decent cove.  Quick on his feet in an argument, Kennedy nevertheless manages to avoid any appearance of partisan brutality.  This combination is compelling.  Both still enjoy a higher public profile than their Holyrood leaders, Rennie and Davidson. 

Indeed, of the three, the one I’d etch a hard question mark against is Alastair Darling. The press clearly find him to be an impressive figure, and thus far, he’s been able to rely on pretty deferential coverage of his interventions in the public debate.  Like Gordon Brown, his shtick isn’t a rich charisma, spicy rhetoric or a spry charm.  Instead, Darling is austere. Darling is mostly humourless.  Darling was twice voted Britain’s most boring politician.  The professional functionary, he cuts a grafting figure: dogged, level-headed, no-nonsense, dull.  For many, the combined effect of these features will be an appearance of frankness, of sincerity.  No glamour, no razzmatazz, but – apparently – no political manoeuvres either.  It seems likely that the independence campaign will be overwhelmingly dominated by claims and counter-claims about economics, about policy detail on a whole gamut of more and less technical topics. Who better than a finicky former chancellor of the exchequer to rebut airy nationalist claims, to sow doubts, and to emphasise the risks, uncertainties and perils of independence?

That’s the logic anyway, but I wonder if the press – bedazzled by his alluring plainness – don’t overestimate Alistair Darling’s appeal to the wider population.  Best I know, there’s no recent polling on what Scots make of him – but I’d be surprised if the discernible press predisposition towards him is really reflected in wider popular opinion. But take the troika of Darling, Goldie, Kennedy.  What is their unifying feature? Annabel is still an MSP, of course, while the other two still sit as MPs at Westminster.  They haven’t exactly been put out to pasture, but the days of their direct political influence are now long behind them.

And here’s a potential snag.  As you’ll recall, in a speech at Edinburgh Castle in February this year, David Cameron indicated, exceedingly loosely, that further powers might be devolved to Holyrood, if Scots vote no.  This was widely interpreted as an attempt to avoid a framing of the debate in terms of independence or the status quo, which as we’ve seen, tends to produce higher support for independence.  Cameron may not want a devo-something question on the ballot paper, but he seems keen to avoid the impression of a recalcitrant London government, resisting reasonable demands for enhanced political autonomy for Scotland.  

At the time, Darling was quoted saying “I don’t think anybody would argue that the status quo, what we have at the moment, is satisfactory”.  We may well be leery about such shapeless reassurances from the Prime Minister, but the key difference between Darling and Cameron is that the latter is actually in a position to start making political promises, to adopt practical schemes for more devolution, and to make changes at Westminster.  Although the credibility and trustworthiness of the coalition in Scotland is in the gutter, at least Cameron and Clegg are in a credible position to make promises.  Better Together, by contrast, fronted by yesterday’s men and women at the lee end of their political careers, have no authority to do so. That might prove extremely tricky, if the No campaign find themselves under pressure to fill out the detail of their devolutionary counter-proposal.

Thus far, the robust argument emanating from the “No” campaign has been that independence for Scotland is transparently absurd or patent folly, and not really a topic about which reasonable souls can reasonably differ.  We’ve been invited to believe that the balance of uncertainty and risk is all one way.  Thus far, the press have had a bit of fun about disagreements in YesScotland about the monarchy in an independent Scotland, but if anything, the divisions in the No campaign offer even more opportunities for the porridge-stirring political hack, which are only likely to multiply and intensify as the campaign goes on.  

By way of illustration, I found this scrap of text on Ecclefechan Mackay’s office floor at the Kinlochbervie Chronicle which serves as a reasonable model.  If you think the republican/monarchist disagreements in the Yes campaign are the stuff of scandal and calumny, imagine the fun one can have with the No campaign, made up of cut-throat political foes who are knocking lumps out of each other day-in day-out, but whose primary referendum platform insists that despite their day to day indictments of each other's judgement, values and choices, we all somehow benefit from having decisions made about our lives in London, on a British level.  It's a choice predicament. 

FUNDAMENTAL policy splits are already threatening to undermine the launch of the independence No campaign, the Kinlochbervie Chronicle can reveal.  Key differences have emerged among the partners in the cross-party movement, which includes the Conservative, Labour and Liberal Democratic parties. 

While all three argue that the Union is good for Scotland, they disagree on what the good society looks like, which policies would be best for Britain as a whole, the effects of the current administration's policies on the country, the sort and extent of welfare protection which the state should provide, whether Britain should adopt a federal structure or remain highly centralised, whether or not to adopt proportional voting systems or stick with first past the post, how to reform or retain the House of Lords, retain or revoke membership of the European Union and the European Convention on Human Rights, whether to raise tax or to lower it, whose tax should be raised or lowered and why, the extent to which the private sector should be involved in public sector services, the scope of Britain’s participation in foreign and bloody military adventures – amongst other damaging splits across the whole field of public policy.

This week, David Cameron exposed the tensions in the campaign by outlining his vision of being “better together” by cutting welfare for jobless families supporting several children and scrapping housing benefit for under 25s.  A Labour spokesman admitted the Prime Minister’s position on welfare was “difficult to reconcile” with his party’s idea of being “stronger together” but insisted “we’re better and stronger together anyway.”

He continued: “It’s important for Scots to be absolutely clear about this.  Any criticisms we make of coalition policy in Westminster – however severe are completely irrelevant for the border issue.  You’d expect a narrow nationalist not to understand that being better together is about much, much more than whether or not things are actually better together.  I think most Scots bellyfeel a doubleplusgood blackwhite understanding of that.”  

21 June 2012

Devo-something: a measure of pessimism?

Compare and contrast.

Ipsos-MORI poll, 7th - 14th of June 2012 (all respondents):

Ipsos-MORI poll, 7th - 14th of June 2012 (all respondents):

Although the evidence already seemed compelling, Ipsos-MORI's twin independence polls this week provide the strongest confirmation yet that including any second question on the referendum ballot would pose clear problems for the pro-independence campaign.  Posed as a binary - independence or the status quo - independence attracts 5% more support than when it is set against a devolutionary alternative.  To put it another way, support for the Union - either reformed or unreformed - actually increases by fourteen percentage points, when a devo-something option is in play. These results look devilish similar to those published by TNS-BMRB late last year, but are arguably more significant, as they were conducted by the same pollster, over the same period, (and in all probability with the same bank of respondents). 

So what's to be done? A single question, two? I've written before about the tricky legalities of the referendum under the Scotland Act, which will have an impact on how any referendum will be framed, and what questions can and will be asked.  But let's bracket all potential legal problems for the moment.  What about the higher politics? What approach should a calculating nationalist pursue, on the available evidence? Do the potential gains of including a devolution question on the ballot outweigh the negative impact its presence seems likely to have on independence, and the risk of being defeated without any constitutional gains? 

As it stands, I find the attitude of the Scottish Government is exceedingly difficult to interpret. In a recent edition of the Drouth, dedicated to the theme of strategy, I posited four, speculative accounts of the sort of calculations which might be being made in St Andrew's House...

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

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

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

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

So which of the four is it to be? A devo-kite, democratic principle, caution or cynicism about the realistic likelihood of victory in the referendum? I know several of you feel that it is crystal clear which of these explanation really obtains, but for myself, I'm buggered if I can interpret the SNP leadership's position with any confidence.  Last week, an article in the Daily Record - no friend of the Nationalists, mind you - claimed that a "source" from inside the government had told the paper that "The First Minister has come to the conclusion that a second question is required – even if some of his ministers disagree".  This, "part of a behind-the-scenes drive to ensure a second question goes on the ballot paper." 

For those of you convinced by the first account I offered above, if the Record story has any basis in truth, it is just a spot of perfidious Nationalist mischief, stoking people's expectations, and so their disappointment if and when the UK Government attempts to veto any second, "devo max", "devo plus", or "devo something" question. I'm not so sure.  By no means am I questioning the commitment of the party leadership to independence as a first order preference, but it should hardly surprise us if more elaborate calculations are being made in Bute House. 

Ultimately, it probably comes down to this.  Just how pessimistic are nationalists about the possibility of winning the referendum?

20 June 2012

Is the SNP's Britishness forlorn?

Over the weekend, I was scooting across Oxford in a taxi, when up piped the driver, "So, what do you make of this Scottish National Party then?" The fellow hailed from somewhere in the Middle East - difficult to place where precisely - but he was firmly of the view that Scottish secession would be a mistake.  Clenching his fist by way of illustration, he argued that while thin, extended fingers are liable to snap if buffeted, when our digits are all drawn together into a first, their combined solidity rebuffs all threats. The constitutional analogy drawn speaks for itself.  It was a pithy restatement of the No campaign's "stronger together" motto, quite unsolicited by me, offered up almost immediately when the chap ascertained I was Scottish.

Although the content and pitch of these conversations vary significantly, this encounter was just one of many recent instances.  Whether they be taxi drivers, or an academic stranger plonked next to you at dinner, it's now quite common for folk to ask about my attitude towards the national question in particular, and about the SNP in general. This isn't just me being a tedious obsessive, endlessly shoe-horning independence into every conversation - well, mostly notA number of folk down south seem honestly curious about it all, about the character and nature of Scottish nationalism. Are its primary drivers romantic nationalism or pragmatic calculation? Its prime spurs political disagreement with the prevailing UK political scene, or the stuff of atavistic ethnic animus?  

For me, however, the most interesting perspectives on the whole conundrum have come not from folk from south of the Tweed, but hailing from the other side of the Atlantic.  In Oxford, I have the advantage of several (primarily Anglophone) Canadian friends, and their perspectives on the referendum - informed by the legacies of Québécois nationalism and the 1995 referendum in their own lives - has been a source of significant interest to me.  One friend, keen on French and the beneficiary of a francophone Canadian education, speaks of how, as a child, she went to bed on the eve of the poll, anxious that she might wake up to find that her country was no more, if Quebec peeled off from the country's provinces and territories.  Even as a wean, she understood Canada in terms of its dual founding, and the prospect of losing that identity was an unwelcome and discombobulating prospect. She greeted the close failure of the Québécois referendum with an undisguised sense of relief.  

Following on from Ed Miliband's speech on Britishness, another Canadian crony put an interesting - and tricky - question to me. The SNP and others are strongly promoting what we might think of as an instrumental rather than a romantic or ethnic account of their nationalism. As Salmond once put it, "It is not for flags and anthems that I fight, but for fairness and compassion".  Mere bloviation, the skeptical amongst you will surely cry, bloviation and humbug.  Now, one may be somewhat cynical about how programmatic Salmond's idea of fairness and compassion really are, or how thoroughgoing and thought through his ideological commitments might be.  But on the core principle that independence should be envisaged as a means to greater political ends rather than an end in itself , the First Minister's position is absolutely solid.  

As Iain MacWhirter put it recently, contra Miliband's characterisation of the referendum - “To stay in the United Kingdom or to leave? To be Scottish or British or both?” - "this debate isn't about flags and national identity ... it's about power." Who do you want to decide your rates of taxation? The character of welfare provision? To decide whether or not Scottish soldiers are deployed in battle on some foreign field? George Osborne and Iain Duncan Smith? William Hague and David Cameron? While the current political situation personalises the rhetoric and gives it a contemporary spice, the point can be framed more generally.  What sort of folk do you want taking decisions about your life? What kind of politics would you like to see for your country? Do you imagine that sort of politics is remotely attainable through Westminster?

The question my Canadian pal put to me was this.  Just how effective will this nationalist framing of the referendum really prove? Will a practical, political nationalist case focussing on who makes decisions impacting on people's lives really be able to displace those questions of identity, as the pencils of the undecided middle hover over their ballot papers? In the end, despite all the practical issues to and fro, might a sizeable percentage of the population not put a rather more simple question to themselves: who am I? how do I feel? And if an idea of Britishness-entangled-with-UK-institutions enjoys any purchase, and excites any fondness or sense of connection, won't they just vote "no"?

A politically-driven, instrumental nationalist approach to the referendum is one which I'd enthusiastically endorse, but if yesterday's Ipsos-MORI poll on independence is anything to go by, nationalists still have some way to go to break the link in many people's minds between (a) feeling British and (b) support for the United Kingdom.  Most folk lingered over the 35% to 55% topline polling against independence, but in the light of last week's blog, I was particularly interested in the table which correlated "Moreno" identities with support or opposition to independence.  The survey asked, "Do you agree that Scotland should be an independent country?" Taking the responses of all those absolutely certain to vote in the referendum, Ipsos-MORI found the following spread:


A few initial caveats.  Firstly, this data doesn't capture the number of Scottish voters who self-identify with each of the options given, and in particular, in the population at large, there are a far greater number of folk who identify as Scottish more than British than more British or just British.  For example, while 91% of respondents identifying as British not Scottish were opposed to independence, they made up just 7% of the whole number of respondents polled by Ipsos-MORI.  The whole number of respondents to this part of the poll broke down as follows:


We may have a lively disagreement about whether these percentages really reflect the underlying Moreno identities of the Scottish population - but it doesn't matter terrifically for our rough and ready purposes. It is clear, and clearly reflected in this poll, that Scottish identities are clustered around the left-hand side of the Moreno scale, prioritising Scottishness, but often identifying to some extent with Britishness too.  Whether or not 33% of Scots think of themselves as equally British and Scottish, nevertheless, a significant segment of the population certainly feels that way, and they are, for the moment, strongly opposed to independence. Just 10% of respondents who felt equally Scottish and British would vote "yes", compared to 41% of those who give priority to Scottish but feel some British sensibility who would do so. 

While caution about conflating correlation and causation is sensible, this data seems to suggest that Miliband's British nationalist proposition - if you feel British, keep the UK - still enjoys a very strong purchase in the minds of many Scots, especially those who comfortably and concurrently avow both identities. As I noted in a recent essay, various SNP politicians have recently been promoting the idea that British identities can be comfortably decoupled from ongoing political union.  They argue that we can be British by dint of our geography, or enjoy solidarity shy of shared participation in a more-or-less integrated state.  Advocates of this position strongly contend that Britishness need not be relinquished on independence, and vitally, should be imagined distinctly from the United Kingdom.  To feel British is no impediment, on this theory, to support for Scottish independence.  This sort of rhetoric has penetrated pretty deeply into SNP discourse. While we've heard a good deal on these themes from Pete Wishart, Salmond and Angus Robertson, on a recent BBC Question Time from Inverness, even Alex Neil dutifully suggested that he thinks of himself as an "Ayrshire man", and British to boot (colour me skeptical about that one).  

This is a understandable strategy for nationalists to adopt.  If independence is framed as a referendum on the extent to which Scots feel British - and we fail to dismantle the connection between British identities and the UK state in voters' minds - we'll get handily drubbed.  Ed's head doesn't button up the back. Neither do the noggins of Salmond, Wishart and Robertson - and this new-found articulation of a Britishness distinct from the UK is clearly an attempt to neutralise the threat of a British nationalist framing of the referendum along Miliband's lines. 

While drawing parallels with Scandinavian solidarity between Danish, Finnish, Norwegian, Icelandic and Swedish peoples seems a nimble rhetorical move, on the evidence of this MORI poll, that argument hasn't remotely begun to displace the sort of British nationalism which Ed was promoting last week. It may well be that a sort of "geographical Britishness" decoupled from UK state structures is simply too esoteric a proposition to ever do so.  In particular, how much do Scots really know about the extent to which Scandinavians feel a common, cross-cutting sense of identity, despite their formal borders and distinct states? To your average punter, I'd guess that the Nordic Council sounds like just another abstract European bureaucracy, rather than a crucible of comity between independent states, to be imitated in these islands after independence.  For all of its virtues, and the importance of imagining future affinities between states after independence, I'm exceedingly skeptical that the Nordic parallel really resonates.

The lesson of all of this? For all of the cunning, I'm profoundly skeptical that re-accommodating themselves to Britishness will seriously dent the anti-independence logic which the Ipsos-MORI captures amongst people who feel equally Scottish and British.  The rhetoric may serve other purposes, of course, couching the nationalist project in positive, temperate terms, rather than alienating those sections of the Scottish population - the majority - who think of themselves as British, however slight or thin that affiliation might be.  It is early days, of course, but the ineffectiveness of nationalist rhetoric on Britishness thus far makes it all the more important for nationalists that the referendum not become Miliband's question of identities - Scottish or British, and so independent or in the UK? - but focusses instead on questions of power, and who the people really want to be making political decisions which affect them.