Wings Over Scotland

(See here for the whole story.)

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
 

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.

(See here for the whole story.)

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

…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.

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(See here for the whole story.)

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.

(See here for the whole story.)

"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.

As you might imagine, the sudden burst of sunlight cast on the independence referendum yesterday has seen the media scurrying around like hundreds of cockroaches who've just had the rock lifted from on top of them. There isn't time to come anywhere close to a complete analysis of the reaction and we've got a lot of stuff to do today, so we're going to cut through the swamp and point you at a handful that cover all the core issues with the minimum of fluff and waffle.

"Salmond outmanoeuvres Westminster", says Hamish McDonnell in the CalMerc, reflecting/summarising what seems to be the general media take on the subject

David Maddox in the Scotsman, apparently unaware of when the Scottish Parliament's term ends (it's April 2016, Dave) presents events from the Unionist perspective

The Guardian highlights the arrival of the civic-Scotland devo-max movement and its potential for complicating the issue

Michael Moore explicitly tells Scotland Tonight the UK government WON'T bring a legal challenge if the SNP launch a referendum without Westminster approval – we're amazed nobody else has questioned him in more detail on this. It would be absolutely extraordinary if the British government stood idly by and watched an illegal attempt to break up the United Kingdom, so why is Moore saying they won't? And what does that reveal about the UK government's true opinion on the legality of the referendum? (Warning: 300 years of adverts first)

Devolution expert Alan Trench analyses the situation in detail

Unionist misinformation kicks off early as The Telegraph runs a headline poll claiming low support for independence, but waits until the small print at the bottom before revealing that its Scottish sample is under 500 – ie less than half the number required for a survey to have any legitimacy

And Ian Smart asks an excellent question

Get through that lot and we'll see where we are.

One of Labour’s sneakier tricks in opposing Scottish independence is to appeal to Scottish voters’ sense of social responsibility. The former party of socialist internationalism begs the Scots to show Unionist solidarity with their poor comrades in England, Wales and Northern Ireland, who would – the story runs – be abandoned permanently to the mercies of the evil Tories if the Westminster Parliament was deprived of its traditional sizeable block of Labour MPs from Scotland.

This narrative is regularly propagated by Labour’s friends in the media (and sometimes by gleeful Tories too). Only today, for example, the Scotsman carries the line in a piece which asserts that an independent Scotland would leave David Cameron “with an inbuilt Tory majority for his party in the rest of the UK”.

There are, of course, innumerable things wrong with this argument – for one, the dubious morality of using Scottish MPs to impose a Labour government on English voters who may have rejected one, when Scotland has its own Parliament and England doesn’t. (An offshoot of the timeless West Lothian Question.) And for another, the highly questionable premise that the modern-day Labour Party is ideologically significantly different from the Tories anyway.

But the biggest problem with the notion is simply that it’s completely untrue.

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Well, the Prime Minister dropped the hint on the Andrew Marr show, now the Guardian has dropped the bomb – the UK government wants to force the Scottish Government's hand on the timing of an independence referendum, offering the chance to make the referendum "binding", but only if it's held in the next 18 months. It's a dramatic development for sure, but the briefest of glances below the surface suggests that perhaps it's not the apocalypse a lot of pundits on both sides of the debate are presenting it as, for some pretty obvious reasons.

1. It is, so far as we're told, still just an offer. If Salmond says "No thanks, we'll do it in 2015 like we were going to anyway", what will Cameron do? Refuse to accept the result when it comes? Send in the tanks to prevent Scotland leaving if it votes Yes to independence? The idea is ludicrous. Wendy Alexander tried to rush the SNP into a referendum in 2008 and failed, there's no reason to imagine Cameron will have any more success.

2. It's an offer that isn't actually in Cameron's power to offer. ALL referenda in the UK are consultative, not binding. Even if Westminster ran its own referendum it wouldn't be legally binding, so it can't confer that ability on any other authority.

3. The two parties of the coalition both stood on an election platform of opposing a referendum on Scottish independence. They have no mandate whatsoever to bring one forward on behalf of the British people, let alone the Scottish people. (Between them they command a miserable 20% support in Scotland.) The electorate, on the other hand, voted overwhelmingly to give the SNP the power to conduct one whenever it chose.

4. It's a clear show of weakness and fright from the pro-Union camp. Why such a short timespan? What are they scared of? If they were confident that Scots didn't want independence it wouldn't matter when the poll was held. All it will do is fuel the SNP's conviction – and very probably the public perception – that opinion is travelling in the direction of independence, and that they can win the vote on their own terms and in their own time.

All this clumsy intervention is likely to achieve is to anger Scots who don't want to be told by an Eton millionaire how to run their affairs. We're not sure what Cameron's on, but after watching this evening's episode of Sherlock we suspect he might have been strolling in Dewar's Hollow. The name would certainly be appropriate.

Sometimes this blog wonders if it’s missed a meeting that everyone else in the Scottish/UK media and blogosphere was at. It’s hard to explain in any other way the sudden outpouring of absolutely demented, nonsensical keech that’s inexplicably spewed from all corners recently about the SNP planning to hold the independence referendum in June 2014, on the 700th anniversary of the Battle Of Bannockburn.

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(One for the Manics fans in the audience, there.)

Reliably right-wing politics periodical The Spectator this week runs a leader column called "Save the Union". Its plan amounts to having David Cameron determine the timing and format of the independence referendum, and having Labour's Scottish MPs (not its MSPs, who the magazine clearly considers useless) conduct the campaign. The reason it gives for not having the Prime Minister lead the fight to preserve the UK is the unpopularity of the Tories in Scotland, but curiously the column writer doesn't think to extend this logic to the likely effect a Westminster-dictated referendum would have on Scottish opinion.

(Indeed, the idea is so idiotic that the Spectator's own Scottish correspondent Alex Massie instantly rubbished it on the publication's own blog, even going so far as to suggest that not only should the referendum have a devo-max option, but that the Scottish Conservatives should campaign for it – a fascinating theory which would leave Labour alone in campaigning for the status quo, which would be as disastrous for the party as it would be hilarious for everyone else.)

Meanwhile, over on the Express, occasional book author Frederick Forsyth (the last one we've actually heard of came out in 1984) offers his own thoughts (we use that word rather reluctantly, but "outpouring of batshit-mental witterings" seems needlessly rude) on the subject. According to Forsyth, the surefire way to guarantee the salvation of "the most successful four-nation union the world has ever seen" (as opposed to, um, we're not sure which others) is for voting to be compulsory for anyone within Scotland, optional for any Scot living elsewhere, and subject to a 55-45 threshold. The Electoral Commission would determine the wording of the question and the spending limits, and forbid any return to the issue for a minimum of 10 years.

This blog fervently hopes that these ideas are enthusiastically adopted by the UK Government. We'd like to see them get Michael Winner on board as well – we're sure he'd have some interesting opinions, and he too is known for his Death Wish.