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. 


  1. There is a school of thought - that as far as I can see was started by Ian Smart - that there will be no referendum (well, not in October 2014 anyway).

    Salmond, when faced with poor polling on full independence will want to add the Devo+(whatever) option.

    Westminster will state that he has no authority to add the second question.

    Salmond will cancel the referendum - blaming Westminster interference.

  2. I think that Westminster will attempt to disallow a second question, for a range of reasons (some reasonable - renegotiation of the union settlement requires UK-wide agreement for example) but the will oppose it in particular because 'W/M Parties' are very keen that any further devolution is contingent on voters obediently voting no and thus indicating that they are subject to the sovereignty of the WMPs.

    "You get what you're given, because we decided to give it to you, not because you asked for it. We're in charge here."

    Additionally, it's extreeeemely important for WMPs to be able to point out that the SNP were not responsible for triggering the delivery of further powers. It seems supremely childish, but there you go.

  3. "It seems supremely childish, but there you go."

    Talking of extremely childish what on earth is a WMP?

    Is that like a WPC?

  4. What a dreadful poorly researched article! In the Times of course not your words LPW. Even a basic google search would have blown the premise of the article away.

    Looks like an attempt to get a story in the papers on the day of the NO launch maybe? It confuses the nature of a UK govt challenge to Scottish legislation with that of a private action.

    Personally I think the s30 has been negotiated - the UK govt have moved on the date and the Scottish govt have agreed to only 1 question.
    Wish they would hurry up though to put the end to articles like this one.

  5. "Personally I think the s30 has been negotiated - the UK govt have moved on the date and the Scottish govt have agreed to only 1 question."

    Yet the SNP are still touting a second question. If this were all decided I would have expected somebody to leak the "1 question" decision, to make the SNP look silly.

    (by the way, WMP is just an abbreviation of a series of consecutive words contained in the same comment).

  6. @commentator "I think that Westminster will attempt to disallow a second question"

    A strange choice of phrasing. Nicola Sturgeon said on the BBC's Big DEbate that she didn't want a second question, none of the other parties wants a second question. Against whose wishws Westminster be "disallowing" it

  7. Think the implication is that when faced with poor polling for full independence that the SNP will say that they want a Devo+(whatever) option.

    Rather than holding a straight Independence Referendum and risk losing it (if that is what polling suggests).

    My own view is that a 2 question referendum will not deliver a clear majority for any option.

  8. commentor said...

    "Yet the SNP are still touting a second question."

    The SNP is not "touting a second question". Pressure for a "more powers" option is, as Salmond surely foresaw, coming from many quarters, including unions and various civic groups. Even if the SNP did want a second question they have no need to "tout" it themselves.

    Salmond's strategy has effectively pushed the anti-independence campaign into a situation where they are on record as being vehemently opposed to the most popular option while, concomitantly, finding themselves cast as champions of the least favoured option - the satus quo.

    The unionists totally failed to spot the trap that Salmond laid for them by leaving the matter of a second question open. A trap he was only able to spring because he could be confident of the Britnats' knee-jerk reaction.

    Salmond's second question strategy - http://bit.ly/MJITsH

  9. Groundskeeper Willie26 June 2012 at 15:16

    A straight yes/no which (as most sane people predict) returns a no means that Salmond's political career is over and the SNP will be torn apart by recrimination.

    Hence the desire for a second question.

    At best it would mean the referendum being cancelled due to legal action, at worst it gives the SNP something to cling on to.

    Rocket science it is not.

  10. Groundskeeper Willie said...

    "Rocket science it is not."

    Rubbish it most certainly is. A fine example of the triumph of wishful thinking overt rational analysis.

    Most sane people would recognise that 300-year old independence movements do no simply evaporate. Especially movements which enjoy something over 30% support.

    You also fail to recognise Salmond's quite remarkable personal political standing as First Minister and the fact that, quite aside from its role as the party of independence, the SNP is now firmly established as the preferred party of government in Scotland.

    The implications of a NO result in the referendum are far more complex than you seem to realise.

    What does no really mean? - http://bit.ly/NfYqUU

  11. Groundskeeper Willie26 June 2012 at 18:37

    Time will tell.

    A no vote, and let's be honest, that's what it's going to be, is going to leave the SNP with time on its hands, and all the tensions and disagreements which have been shelved over the last few years will erupt.

    And once Salmond steps down or is pushed aside, who is going to fill his shoes? There's no one in the party comes close.

    I'm quite looking forward to it.

  12. Groundskeeper (or should I say Mr Rennie?), this is wishful thinking of the most desperate nature.

    Faced with choosing between independence and the status quo (because Salmond has ensured that will be the only choice by playing the bitter together folk like 2-penny fiddles), people will not choose the least popular option (which is the status quo in case you haven't been keeping up).

    The only way to save the Union would have been a second question on devo max and not a single politician will have any credibility calling for that question now. The bitter together brigade have already lost the referendum and in a little over 2 years they'll realise that it was their knee-jerk reaction in rejecting a second question, a knee-jerk reaction that kicks in against anything and everything to do with the SNP, a knee-jerk reaction that causes all semblance of rational thought to go out the window, that lost it and directly led to the end of "the most successful union the world has ever known" ((c) Bitter Together).

  13. The other matter not taken into account by Willie is that all the trends are in favour of independence. Edinburgh has accrued additional powers at an accelerating pace and every time the Scottish people have been asked if they'd like more power they have accepted whether in referenda or in terms of electing the SNP which seeks additional powers as the core element of its governmental programme. Since 1997 we can see a clear trend in one direction. But this is not merely a local trend but an international one too with SCotland following in the footsteps of the many other nations which have become independent in recent times. These trends present the No campaign with serious problems. It is instructive that Lamont and Darling have consistently been opposed to increased autonomy for Scotland and have consistently been on the losing side. The British state for all its bluff and bluster has also been a serial loser when faced with independence movements.

  14. One question at the moment is a dodgy game -- the stakes are high and Salmond is a gambler -- most people fail to notice that by 'gambler' it is meant he weighs up the options and possibilities to predict a best and most likely outcome.

    As it stands, we'll lose if it were held tomorrow -- that however isn't the whole story. We can win this if the abys of austerity soith of the border is so unappealing that many Scottish residents decide, enough is enough. We certainly don't want or desire austerity and cuts.

    If the circumstances predict a Tory government with austerity then the Scots may well just vote YES.

    Moreover, if the referendum gets slowed up in court, then the timing may be even closer to the UK G.E. (my preference) and if a Tory government is on the cards then bye bye union.

  15. "Nicola Sturgeon said on the BBC's Big DEbate that she didn't want a second question, none of the other parties wants a second question. Against whose wishws Westminster be "disallowing" it?"

    That tiresome entity Labour would so dearly love to override any time it liked, and tries to do so at any opportunity: the people.

  16. The polls say if it's a single question ref the NO camp wins.

    If its a 2 question there'll likely be no majority - not sure where we would be then.

    Anything less than full Independence is a fail for Salmond.

    If the YES lose the referendum, they will not disappear. They have shown to be popular in government.

    However, it is looking highly unlikely that the Tories will win the next general election. People that the Nats have tried to fool by saying 'a NO vote is a vote for the Tories' will realise that this is not the case & that Labour will be back in power soon. Losing the YES camp potential voters.

  17. "Labour will be back in power soon"

    Mark this down now: the British public will NEVER elect Ed Miliband to be their Prime Minister.

    Iain Gray had a 15-point lead six weeks before the 2011 Holyrood election and it meant nothing, because the electorate never votes for the party with a crap leader. Labour lack the ruthlessness and the alternative candidate to get rid of him before then. Do not pin your hopes on Labour in 2016. We WILL have to endure two terms of these evil Tories, if that's even possible.

  18. "..the electorate never votes for the party with a crap leader."

    Remind us of the result of the 1992 general election.

    Just as a reminder that was the election where one of the more eccentric minor parties had the slogan: 'Free by '93'...

  19. "Remind us of the result of the 1992 general election."

    Um, you seem to have proved my point for me. Labour looked like a shoo-in to win that election (just as it did at Holyrood 2011), hence the infamous victory rally in Sheffield, but when it came to it the public simply wouldn't vote for Neil Kinnock.

    Major isn't the strongest PM the country has ever had, but he was seen by the public - rightly or wrongly - as (a) an honourable man in a difficult situation who deserved a chance, and (b) by a considerable distance the lesser of two evils.

    Thanks for helping!