Wings Over Scotland

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.

We’re all used to the modern “apology”. You know, the one where someone does something idiotic and then says “I’m sorry if anyone was offended”, rather than “I’m sorry for the idiotic thing I did”, cunningly turning what’s ostensibly an apology into the opposite – an attack on the reader/viewer for being so pig-thick as to have plainly or wilfully misunderstood the actually-perfectly-reasonable thing the offender said or did, and which they’ve been forced into unwillingly pretending to regret.

Labour troll-in-chief Tom Harris MP, however, may have taken this artform to a new high. He’s lasted less than a month in his new job as the party’s official “Twitter czar” before having to quit after posting a video on YouTube which portrayed Alex Salmond as Hitler (or more precisely, the other way round), and reacted with the sour bad grace anyone who’s had interactions with Harris online would have come to expect.

“The video I posted has been a well worn joke used to parody a range of public figures. However, context is everything and in the context of Johann [Lamont]’s and my desire to improve the level of political debate on social media and the context of Joan McAlpine’s much more serious statements about all political opponents of the SNP being anti-Scottish, my actions have been an unhelpful distraction for which I apologise.”

Did you get that? Tom is apologising, not for likening the democratically-elected First Minister of Scotland to a fascist dictator responsible for the murder of millions of innocent civilians, but for causing an “unhelpful distraction”, ie for damaging his OWN party with his buffoonish antics. Furthermore, he’s using this “apology” to actually repeat the attack, by shamefully continuing to misrepresent the recent comments by SNP MSP Joan McAlpine which were the subject of the spoof clip.

Now let’s be clear. The only thing offensive about the video in itself is what a tired, lame old joke it was – “Downfall” spoofs were already old hat in 2009, to the extent that even the fusty old Telegraph was making that point.

(On a personal level, while this site just about sees the humour value in the first one or two, all the literally hundreds of feeble imitators which followed it have achieved is to distastefully cheapen one of the best and most powerful films of this century.)

But Tom Harris has spent most of the last six months piously crying about nasty, bullying “cybernats” on the internet, deliberately blowing up the tiniest of slights – or even completely inventing them – so that he can manufacture fake offence at the supposed poisonous bigotry of the SNP.

(Tom nearly always blames “the SNP” explicitly for the opinions of random internet users, despite usually having no evidence that any of the people in question are members or even supporters of the party, far less controlled or directed by it.)

The particularly startling thing about this case, though, was that just minutes before posting his Hitler movie, Tom had huffily complained on Twitter about a user who’d mentioned the Vichy government in WW2 France (or as Tom chose to put it, “Nazi collaborators”, although the person involved hadn’t mentioned the Nazis at all), as evidence of how awful “CyberNats” were.

That Harris then thought there was nothing odd, hypocritical or contradictory about creating and promoting a video in which Alex Salmond was directly and deliberately portrayed as the Nazi leader (and which, at the time of our writing this piece, Harris has not deleted from YouTube) reveals much about Labour’s inbred policy of double standards which has served the party so well of late.

This blog picked him up on it immediately (as you’ll see in the pic above), and tweeted our own thoughts on the subject, without claiming to be offended but noting the laughable hypocrisy. To be honest we sort of wish we hadn’t now, because it started the chain of events which led to Harris’ departure as Labour’s new-media guru, and as long as he was actively using Twitter in such a puerile manner, support for Scottish independence grew with every passing day. Sorry about that, fellow nationalists. And that’s an apology more sincere than anything you’ll ever get out of Tom Harris MP.

(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

"Vote for independence if you want – but you'll lose the pound, says George Osborne"
(The Independent, Friday 13th January)

"In subsequent briefings, the Treasury confirmed that […] it could not block Scotland from using the currency"
(The Scotsman, Friday 13th January)

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.)

Too many words to take in this week? Then try the referendum debate in pictures. Here’s a collection of cartoons from the last week, from mostly non-Scottish publications (so prepare yourself for a lot of haggis and bagpipes and stereotyping the like of which were last seen in the 1970s), showing the outside world’s digested take on events. It appears to be clear who’s generally seen to have come out on top.

The Independent (Thursday 12th Jan)

Read the rest of this entry →

…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 →

(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 Guardian today runs an extensive interview with Labour's shadow Defence Secretary and former Scottish Secretary, the estimable Jim Murphy MP, in which Murphy demands that Labour must take the lead in the campaign to save the Union. We're a bit confused, though, because Murphy doesn't seem to be all that big a fan of said Union. Most of his responses were predictable and unremarkable, but this line really jumped out at us:

"I'm proud to [be] Scottish. The only flag I ever wave would be a Scottish flag."

The ONLY one? We're not alone in finding that odd, are we? We can't imagine considering ourselves to be citizens of a country, actively wishing to keep the people of that country united under one flag, and yet being afraid, ashamed or just plain unwilling to wave that flag ourselves. So why does Murphy want to save the Union when he can't bear to wave the Union Flag? If anyone can help us understand, we'd be grateful.

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.