Wings Over Scotland

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Northern Ireland’s politicians seem keen to get involved in the debate at the moment, with the latest contribution coming from Lee Reynolds, Director of Strategy for the Democratic Unionist Party, writing on the Slugger O’Toole blog.

“The Unionist case needs a Scottish and non-party political voice that will sell a positive narrative.”

Reynolds’ piece runs to over 750 words, concerning itself entirely with the need for the Unionist case to be made positively rather than negatively and insisting that the FUD camp needs to “sell the benefits of our Union”. Unfortunately, perhaps due to pressures of space, Mr Reynolds was not able personally to specify in the article what any of those benefits actually are. We’re confident someone will soon.

TIME ELAPSED: 31 years, 11 months
CONFIRMED SIGHTINGS OF POSITIVE CASE FOR UNION TO DATE: 0
 

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An alert viewer drew our attention to the latest call to arms, published in Tory Hoose and penned by Tom Elliott, leader of the Ulster Unionist Party.

"It is absolutely essential that the pro-Union forces articulate a convincing and positive case for the continuation of the Union in the 21st Century. Those of us who wish to see Scotland and its people remain as fellow citizens in a United Kingdom must both articulate the benefits which the Union has brought to Scotland and provide a positive vision for the future continuation of the Union."

To be honest we could barely be bothered building our hopes up this time, and sure enough out came the familiar tune. An independent Scotland would be bankrupt in a matter of days, just like the Republic of Ireland (hmm, no agenda there, we're sure), and Greece and Portugal and Iceland. The UK has saved us from economic disaster – um, you might want to take a look at the books, Tom – and "the choice facing the people of Scotland may be between a broke but independent Scotland or a comparatively prosperous Scotland still within the Union".

If that's the "convincing and positive case", we sure as heck wouldn't like to meet Mr Elliott when he's down in the dumps.
 

TIME ELAPSED: 31 years, 11 months
CONFIRMED SIGHTINGS OF POSITIVE CASE FOR UNION TO DATE: 0
 

Dear Willie, since you're implausibly still peddling this ridiculous fantasy hypothetical, perhaps you could quickly answer a similar one for us. It won't take a moment.

In a two-question 1999-style referendum of the sort you posit in your zany "99-51" scenario, the vote in autumn 2014 instead delivers the following outcome:

In favour of the status quo: 2%
In favour of devo-max: 98%
In favour of independence: 97%

So has Scotland just rejected independence, despite 97% of the electorate voting for it? By your logic it has. Is that seriously your position? With a straight face and everything? Are you going to be the one to tell the 97% of Scots who've just voted to leave the UK that they're staying in whether they like it or not?

If not, please shush with your daft, embarrassing haverings. But if so, we'll wish you the very best of luck with that. And then, if it's all the same to you, we'll run for cover.

There's an aspect of the recent constitutional brouhaha that we're a little surprised nobody's looked into (so far as we've noticed). Let's assume for a moment that the Scottish Parliament, as claimed last week by the UK Government's Scottish Secretary Michael Moore, does NOT have the legal power to conduct any kind of referendum into Scotland's constitutional future (far less a legally binding one). And let's assume, for the sake of argument, that for one reason or another – perhaps the refusal of the SNP to play ball in negotiations – Westminster declined to give it that power.

How, then, could the people of Scotland ever legally choose to leave the Union against England's wishes?

It is an inviolable democratic principle, in this country and many others, that no administration can bind the hands of its successors. So despite the wording of the Treaty Of Union which stated that its effects were to endure "forever after", the Treaty cannot be imposed for eternity by those who signed it in 1707. But if the Westminster Parliament is the only arbiter permitted to allow the Scottish people a plebiscite on revoking it, and it chooses not to do so, how might the Scots legitimately extract themselves from the UK without armed revolt?

Electing MPs to Westminster is no good – making up less than 10% of the Parliament they can't force any legislation through, even were every one of them to represent a nationalist party. And in the Scottish Parliament, where it IS possible to elect a majority government dedicated to withdrawing from the Union, we've just been expressly told that there is no authority to even ask the question, far less act on it.

A mass petition? Millions demonstrating on the streets? The people of Britain tried that with the Poll Tax and the Iraq war, and a fat lot of notice the government took.

The UK government currently IS offering to empower the Scottish Parliament to hold a referendum, but while hinting at all manner of terms and conditions and limitations. It could, of course, also withdraw that offer at any moment. So can anyone tell us the democratic means by which the people of Scotland could assert and enact their desire to leave the Union, without asking for England's permission first?

Should such a means not exist – and it would seem that it doesn't – then the idea of Westminster imposing any rules whatsoever on the referendum mandated to the SNP by the Scottish electorate is a plainly indefensible outrage against the most basic rights of civilised peoples. We are not England's prisoners, and for that reason if no other, we are confident that any legal "obstacles" will be overcome. Roll on 2014.

While this blog commends the Guardian's continuing commitment to quantity of Scottish coverage, its quality is too often dismaying. Today it runs with the tired, feeble line introduced by Willie Rennie into the independence-referendum debate a few weeks ago, and laughingly dismissed by most grown-up commentators minutes later – what happens if there's a referendum with a devo-max option and 99% vote for devo-max but 51% vote for independence?

(To be fair, the Guardian impressively increases the precision of the question tenfold by adding a somewhat gratuitous decimal point into the equation, but to keep things nice and tidy we'll stick with the whole numbers.)

Rennie's question is so feeble because the answer is so obvious. If a majority votes for independence, Scotland should become independent. Devo-max is a wholly-contained subset of independence (despite some very silly recent assertions to the contrary by new Scottish Labour leader Johann Lamont, who has suddenly decided that "some powers – more powers – all powers" isn't a linear progression), and we can say so without fear of contradiction because in Rennie's hypothetical example the number of votes totals 151%, which you clearly can't have in a vote between opposing options.

You can self-evidently ONLY have a vote adding up to more than 100% if people are allowed to vote for two (or more) things at once, and you can't do that if those two things are in conflict with each other. In an election, we'd call that a spoiled ballot.

Rennie's complaint is irrational and illogical whether taken on face value or examined more closely. Either devo-max and independence are exclusive concepts – in which case you can't let people vote for both of them – or one is a subset of the other, in which case supporters of devo-max are getting everything they wanted if Scotland becomes independent (plus more on top) and there's no problem. But for the sake of argument, let's indulge him for a moment and see where it leads.

If we let Rennie have his cake and eat it, and the result comes out as absurdly extreme as his example, what does that actually tell us? It tells us the Scottish people have the following order of preference for their governance:

The Union: 1%
Devo max: 48%
Independence: 51%

…because of the 99% who approved of devo max, more than half of them also approved of independence. There is no sane way of spinning a poll in which most Scots have voted for independence, but the country doesn't end up independent.

We know Unionists do like to rig a referendum in exactly that way, because the last time 51% of Scots voted for something in a referendum (51.6%, in fact) they didn't get that either. You can bet your last Royal Wedding teatowel that the SNP will not allow Scotland to be stitched up the same way twice.

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Once again, we were lured into foolish optimism. "The irresistible case for England and Scotland remaining united", thundered the Daily Mail's editorial headline. Sadly, the reality turned out all too familiar – a lengthy rant about how Scotland was too wee, too poor and too stupid to go it alone, how we'd be crushed by a £140bn (new high score!) share of UK debt, how we couldn't afford to bail out the "Scottish" banks again (yawn), how we'd struggle without the £10bn a year subsidy from England (oh dear). But then our hopes sparked momentarily into life again:

"Add these deeply serious warnings to the positive case for maintaining a union which has served the English and Scottish people well for 300 years and Mr Cameron has an irresistible argument."

This time, here it must surely come! The fabled, mythical "positive case"! But sadly not. Like so many before it, the Mail apparently assumed this positive case to be axiomatic, so self-evidently obvious that it required no explanation, and the editorial came to an abrupt end. We should know better by now.

TIME ELAPSED: 31 years, 11 months
CONFIRMED SIGHTINGS OF POSITIVE CASE FOR UNION TO DATE: 0

The Telegraph on Tuesday: Independence 29%, Union 54%. Gap 25%

The Telegraph on Saturday: Independence 40%, Union 43%. Gap 3%.

This, dear readers, is why you should never take any notice of opinion polls with samples of under 1000 people (in both these cases, around 500 Scottish respondents). Exactly what knowledge has the Telegraph gleaned and passed on to a breathlessly expectant nation from these two surveys, presumably each conducted at substantial cost, just five days apart? That the gap the SNP must bridge by autumn 2014 between support for independence and opposition to it is somewhere between 25% and 3%. Well, that pretty much settles everything, doesn’t it?

(PS Some interesting background on the Saturday poll here.)

…we would give it to Ian Bell, for he’s hit the nail so hard on the head in today’s Herald that he must surely have broken his own. As we’ve said before, we don’t make a habit of reproducing stuff from behind newspaper paywalls, because as journalists ourselves in our day jobs we support the idea of paying for quality journalism, and at just 75p a week a Herald online subscription is very fairly priced, unlike some.

But Bell’s piece today (which also indirectly addresses the hysterical, hypocritical faux-outrage over Joan McAlpine’s “anti-Scottish” comments) is more important than that, and deserves a nationwide audience who can be directed to it time and again over the next two and a half years. Read it below, and then please consider whether for Scotland’s sake you can afford NOT to support one of its few remaining outlets of decent, honest and reasonably balanced writing about politics.

Read the rest of this entry →

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An exciting development this time, readers. Right-wing magazine The Spectator makes no bones about its opposition to Scottish independence, and fair play to it. This week it very sportingly republished an archive of the editorial column it also ran expressing its opposition to the first Scottish devolution referendum, back in 1979.

(Alert viewers will recall that the Scottish people narrowly voted Yes in that poll, but were foiled by a rigged amendment proposed by Labour which effectively counted the dead as No votes, and thereby denied devolution for 20 years.)

There's much to enjoy and admire in the piece, such as the use of the quite splendid word "fissiparous" and the revelation that even in 1979, "Until the last moment the Labour Party in Scotland held out against the devolution proposals, and had to be cajoled and bullied into line". But the thing that really tickled us about the column was a sentence which shows how little some things change across the generations.

"We have left unargued the essential case for the Union, because we do not believe that most British people need to be persuaded of it."

Endowed with this new knowledge, we've adjusted our clock accordingly.
 

TIME ELAPSED: 31 years, 11 months
CONFIRMED SIGHTINGS OF POSITIVE CASE FOR UNION TO DATE: 0

The political sphere and the media have been consuming themselves for the last few days (and in some cases for much longer) over the argument about who has the right to hold a referendum on Scottish independence. You would be forgiven for a hopeless sense of bewilderment should you attempt to make sense of the endless claim and counter-claim, with opinions invariably presented as statements of fact on both sides. So let us, if we might be so bold, cut through it for you in a concise and clear manner.

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1. The Scottish Government insists that it is fully empowered to conduct a referendum which is purely consultative. In support of this it cites numerous highly-qualified and impartial sources, such as referendum expert Dr Matt Qvortrup and what’s universally accepted as the leading textbook on Scottish constitutional law, which states that:

“A recurring hypothetical example with a high political profile is that of a Bill to authorise the holding of a referendum on independence for Scotland.  Because its purpose could be interpreted as the testing of opinion rather than the amendment of the constitution, such a Bill would almost certainly be within the Parliament’s powers”

2. The UK Government, however, asserts absolutely that as an independence referendum “relates to” the constitution, which is a matter reserved to Westminster, it would be outside the Scottish Parliament’s legal competence. This is because the Scotland Act explicitly directs that the intended purpose of holding a referendum must be considered as well as the mere act of conducting one. That is, even if technically the Scottish Government isn’t forbidden from simply asking the Scottish people a question, the law must decide if its intent in doing so is to bring about actions which are outwith its power, such as altering the constitution. This view is supported both by viruently anti-SNP QC Aidan O’Neill and by the nationalist blogger and lawyer Lallands Peat Worrier, who has examined the relevant statutes in forensic detail.

3. Both sides, then, clearly have at least a valid legal case to argue. However, there’s an extremely interesting quirk. When the UK government’s Secretary of State for Scotland, Michael Moore, appeared on Scotland Tonight earlier this week, the show invited its viewers to suggest questions it could put to him. At this blog’s request, the programme asked Moore whether the UK Government would itself bring a court case if the Scottish Parliament attempted to hold a referendum without Westminster approval. His answer was that it would not, but that members of the public might do so.

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As we’ve previously noted and as the New Statesman (alone in the media) subsequently picked up on, this is an extraordinary, and highly significant, admission. For the UK Government to announce that it would stand idly by while an illegal attempt was made to dismantle the very UK state is scarcely believable – it’s rather like a policeman witnessing an armed robbery or violent assault and making no attempt to intervene, saying instead that perhaps a passer-by might come to the victim’s aid.

The only conclusion it’s possible to draw from Moore’s statement is that the UK Government is in fact not at all sure that a legal challenge would be successful, and given its unquestionably strong black-and-white case in law this uncertainty can have only one rational explanation. Regardless of the legal facts, it would in reality be politically unimaginable for the UK government – commanding just 20% support in Scotland – to attempt to stand in the way of a policy the electorate had given the Scottish Government an unmistakeable mandate for.

The website The Lawyer today carries an opinion from Christine O’Neill, one of the authors of the aforementioned textbook “Scotland’s Constitution, Law and Practice”. In the column she acknowledges the conflicting interpretations of the law, but reaches the only possible finding:

“Ultimately, however, the lawyers, and the legal arguments, will need to give way to the views of the Scottish people.”

This view is echoed all over the more sensible media. Simon Jenkins in the Guardian, for example – no Scottish nationalist he – concurs with O’Neill, noting:

“For the past week constitutionalists have been dragged from their cobwebs to pore over laws and documents. This is pointless. When dissident provinces are set on separatism, the minutiae of referendum law will not stop them.”

So we’re going to nail our colours to the mast and make a plain assertion – the referendum WILL happen, and it WILL be conducted on the Scottish Government’s terms. We suspect that in the interests of appearing reasonable, Alex Salmond will concede either the inclusion of 16/17-year-olds on the franchise or the involvement of the Electoral Commission – but not both – and the UK Government will ultimately grant the Section 30 order necessary to remove any possibility of legal challenge.

(Also, after a great show of pretend reluctance and protest, the Scottish Government will accept the UK Government’s insistence that the referendum must comprise just a single question, because that’s what the SNP actually wants – it just wants the Unionist side to be the one that rules out the popular devo-max option, rather than itself, and helpfully the Unionists are playing right into nationalist hands there.)

For all the heat and fury, it will be so. You can quote us on that.

Tonight's edition of Newsnight Scotland featured duelling lawyers, with conflicting views on the legality of the Scottish Government's proposed referendum. Professor Adam Tomkins from the University of Glasgow put forward the opinion that Holyrood basically had no power to do anything at all and should be grateful for Westminster's "very generous" offer to help out, while Professor Stephen Tierney (University of Edinburgh) posited the interpretation that an advisory referendum was perfectly fine as it didn't in itself lead to legislation and therefore exceed the Parliament's competence.

Presenter Raymond Buchanan tried to navigate the tricky constitutional minefield between the two, and after Prof. Tierney had given his explanation of why the referendum bill might be lawful, Buchanan stabbed right at the heart of the dilemma when he asked the question viewers across the nation were shouting at their screens:

"Just to clarify that: so, so, if there was a Yes vote, which said "Go and negotiate with Westminster" and then, uh… then Westminster… or the… what you're saying whether the voters rejected that then, what would happen or… Westminster rejected it, what impact would you, were you saying?"

Well and truly clarified, we'd say. It was a feat of no small magnitude that the Daily Record's Torcuil Crichton actually managed to haul the intellectual level down a couple of notches from there later in the show, but that's another story. The important thing is that the future of the independence debate is in safe hands!

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"Does the Prime Minister agree with me that we must make the case for the Union – not simply against separatism, but the positive case about the shared benefits to us all of Scotland's part in the United Kingdom?"
(Ed Miliband, leader of the Labour Party, January 2012)

"I'm happy to say that this is an area where the Right Honourable gentleman and I are going to be in 100% agreement."
(David Cameron, Prime Minister, January 2012)

So it seems we can look forward to imminently hearing that "positive case", which sadly neither of these illustrious figures had time to actually outline at Prime Minister's Questions today. Any minute now, we're sure.