Wings Over Scotland

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.

From “LiamHunter64”, manager of the “Keep Scotland British” Facebook page (a hotbed of the sort of positive Unionism* Tom Harris MP regularly contrasts with the nasty antics of the dastardly Cybernats) and allegedly based in Sangin, Afghanistan.

12 January 2012
“If it [independence] happens I’ll be moving to England and laughing at failure!“

Slightly later on 12 January 2012
“Typical SNP, Because I’m anti-Independence I’m also Anti-Scottish? I was born and raised here, my heart is in Scotland and will never leave.”

So let’s just get this clear: Liam’s heart will never leave Scotland, but his body will be in England laughing at the failure of the country he loves? That sure is some powerful Scottish patriotism right there. We hope he gets some advice from a medical professional before he packs those suitcases, mind.

(We’re not altogether certain why Scottish independence would provoke someone to leave Afghanistan for England, but we’ll let that one pass.)

The power of Unionist doublethink is strong. While the SNP talk of “the social union” and friendship with England and the rest of the world, those most prone to bellowing their “Scottish patriotism” and pride in Scotland seem to be those who do not acknowledge that their “country” is or should be a country at all.

We suspect dear Liam doesn’t even understand the contradiction in his comments, bless him. (We did ask him, but as yet have received no reply.) We’re not so sure that Tavish Scott, Jim Murphy, and all the rest whose loudly-asserted “patriotism” doesn’t stretch as far as having their country elect its own government or control its own economy, can fall back on the same excuse as their supporters.

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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!

(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.

If, like us, you made a bad decision last night and watched the juvenile playground rammy on Scotland Tonight rather than the simultaneously-broadcast edition of Newsnight, here's the link to the BBC show. (If you plumped for the Beeb, the STV programme can be viewed here. Earplugs advised.)

Gavin Esler was on very good form generally, but the high point was this introduction (at 12m 30s) for his second interview of the night:

"There used to be a joke that you could fit all the Scottish Conservative MPs into a taxi. Now you can fit them all into one chair. And here he is, Scottish Office minister David Mundell!"

Nice to see Scotland making the grown-up version of Newsnight, but we suspect we better get used to hearing the exact same pre-prepared soundbites parroted out on air an awful lot in the coming months and years, so we're going to be even more grateful for any half-decent jokes that get thrown in along the way.

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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(See here for the whole story.)

We honestly thought we were going to get something this time. Not, if we're being honest, from the terminally vacuous Dougie Alexander (writing in famed Labour paper the Telegraph), and he didn't disappoint us:

"Politics is about emotion as well as simple accountancy. So as well as making the economic case for staying in the United Kingdom, we also need to tell a better, more positive story for Scotland’s future to compete with the SNP’s narrative of nationalism." (Actual positive story not included. Nor the economic case, now we come to think about it.)

But we thought there was a real chance from Tory opinionist Andrew McKie in the Herald yesterday. After all, it was practically there in the headline ("A positive reason for the Union? Most Scots want it"), and the article itself was clear about its goal, noting that "Politicians are much given to talking – as Mr Cameron did yesterday – about 'a positive case for the Union' and commentators (I'm one of them) have been asking for the same thing for some time. Since nobody has yet been willing to do this, I'll try to make a modest start".

Sadly, though, the actual case presented by McKie turned out to be, shall we say, not entirely convincing:

"It is a strategic mistake for Unionists to bang on about whether Scotland is subsidised by England. It is, a bit, compared with many English regions (though London is subsidised more), but then we have Glasgow to contend with, as well as huge remote areas such as the Highlands and Islands, which demand higher spending.

The benefit of the United Kingdom is that such costs can be shared among a much larger population; the Union gives freedom of movement, lack of tariff barriers and equal benefit, healthcare and pension entitlement to all citizens.

This should be stressed as a positive advantage, not as a claim that the Scots couldn't afford to go it alone, or that they are subsidy junkies." [paywall link]

In other words, McKie's "positive" reason is basically "Glasgow is such a dump that we need the rest of the UK to bail out all the benefit scroungers there". Or in other words, the same old negative scaremongering, but now simply called a positive boon. (Also, he appears to rather bizarrely believe that an independent Scotland won't have freedom of movement, healthcare or pensions. All this positivity is overwhelming us.)

In fairness to McKie, he does go on to assert the claim made by his headline, namely:

"That positive case for the Union is not one which any convinced Scottish Nationalist will agree with, but it is the most forceful of them all: the positive case for the Union is that most Scots do not want to abandon it."

But that's not so much a case as a statement, of something nobody actually knows yet. We will know after the referendum whether Scots want to abandon the Union, and not before – in 304 years of Union, this will be the first time Scots have been given any vote on it. The manager can say before the game that his team has it won, but you don't actually get the three points until the final whistle.

So sadly, nothing yet. But there's still time! Come on, Unionists! You can do it!

TIME ELAPSED: 5 years, 0 months
CONFIRMED SIGHTINGS OF POSITIVE CASE FOR UNION TO DATE: 0

Kate Higgins makes an excellent observation over on A Burdz Eye View today. In passing, while commenting on the whole referendum furore, she picks up on an extraordinary piece in yesterday's Scotland On Sunday (that we didn't have time to go into in all the mayhem of Cameron's sudden fit of insanity), revealing that a Labour peer has put forward an amendment to the Scotland Bill which if passed would give the vote to any Scots-born UK resident, regardless of whether they live in Scotland.

At first glance this just seems like a crude and possibly unwise attempt to tip the scales of the vote in favour of the No camp, based on the rather shaky presumption that expats living in England are more likely to be Unionists. (Speaking as one such expat, I can assure Baroness Taylor of Bolton that she's right out of luck.) But looked at more closely it's something much more reckless and sinister.

Opponents of nationalism as a broad ideological position have trouble making their objections stick to the SNP, precisely because the SNP's brand of nationalism isn't really nationalism at all in the conventional sense of the term. So-called "civic nationalism" is not based on a person's ethnicity, but merely on where they live. Whatever colour you are, wherever you're from and whatever deity (if any) you believe in, you can become "Scottish" simply by moving to Scotland, and have exactly the same rights as anyone born and bred there. It's a highly inclusive, heartwarming creed reflected in the SNP's positive, welcoming attitude towards immigration, compared to the viciously resentful one more commonly seen in England.

But Labour's ill-considered intervention places the party firmly on the side of "ethnic nationalism" – the poisonous, bitter strain of the concept that has led to bigotry, wars and genocide across the globe. The logical extrapolation of the view that where you were born is what matters is that non-native Scots shouldn't be allowed a vote in the referendum, and while Labour aren't quite stupid enough to have actually put forward such a thing in the amendment, the inescapable racist undertones of the proposal (while doubtless not consciously intended) have opened a can of very rotten worms that they'll do well to get away from the stink of. For that at least, they're likely to be offering prayers of thanks to David Cameron for grabbing all the headlines.

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.

We don't often have anything nice to say about Kevin McKenna, but this lovely passage from his weekend Observer column deserves credit:

"Last week, the [SNP]'s formidable organiser, Angus Robertson, could scarcely keep the glee out of his voice as he once more displayed his pride and joy: the IT system that reveals to the SNP exactly where each of their supporters lives and, very possibly, the elasticity quotient of their foundation garments.

Even if Labour were to take delivery of a similar model tomorrow, it would take them half a political generation to feed in sufficient data from which to draw reliable conclusions. Even then, glancing along Labour's frontbench, you could never be confident that some of them would not simply throw their dirty washing into it and look for the 'on' switch."

Nice work, Kev. We'll make a writer out of you yet.

Nick Clegg's been upsetting people this week. Now, you might reasonably retort that there was nothing unusual about that, especially in a week when newspaper headlines suggested that the Lib Dems were down to a single voter. But the unusual thing on this occasion is that he's upset people by telling the truth.

Much of the Scottish political village was up in arms about comments the Deputy Prime Minister made in an interview with the Scotsman, which the paper chose to present as Clegg calling supporters of Scottish independence "extremists". The story set various camps off into various types of huff. Liberal Democrats, for example, were angry both at the comments and at the Scotsman – which they accused of "misreporting" Clegg on the grounds that he hadn't actually used the word "extremists" – while some nationalists were predictably outraged at the perceived slur.

But these complaints are wrong on every level. Firstly and most obviously, Clegg DID use the word "extremists" – you can see it in paragraph 8 of the Scotsman piece, where the paper quotes him thusly:

"All the evidence suggests that [greater devolution] is the mainstream of opinion and the extremists are those who either think that we need to yank Scotland out of the United Kingdom tomorrow, or those who say there should be no further change at all."

This statement is, in itself, entirely accurate. When it comes to the constitution, independence and the status quo are the extremes of opinion (discounting the real lunatic fringe who want Holyrood closed down altogether). But even where more sober commentators recognised this fact, they misleadingly left out the last part of Clegg's quote, giving the false impression – just as the Scotsman had done – that he'd only applied it the nationalist camp, when in fact he'd explicitly labelled the supporters of the status quo in the same way.

And, indeed, himself. Because while the Deputy PM was clearly attempting to isolate Labour and the Tories and carve out the popular middle ground for his own party as it embarks on yet another consultation on "Home Rule" (despite the Calman Commission, whose findings the Lib Dems backed, having barely closed its doors), the fact of the matter is that whenever the referendum arrives, the Lib Dems will by default be campaigning for the status quo too, making them just as extremist as everyone else. And despite all the faux-shock, that's something that everyone already knew long before Clegg opened his mouth.

There is absolutely no chance that the latest Lib Dem talking shop will produce a devo-plus proposal to be included in the referendum. Even if they wanted to they'd never get such a thing approved by their UK coalition partners (and unlike independence, any altered devolution settlement requires the consent of the Westminster parliament), and they don't want to anyway – the Scottish Lib Dems have been absolutely unequivocal, along with the other opposition parties, in demanding a one-question Yes or No referendum. And the likelihood of the Lib Dems being in power on either side of the border by then, and therefore in a position to negotiate or grant any further devolution at a later date anyway, is pretty much zero.

So when it comes down to it in 2015 or 2016, by Nick Clegg's definition everyone will be an extremist. Only the two extreme positions will be on offer, and the voters will have to pick one or the other. This blog, for one, commends Nick Clegg on stating that simple and obvious fact, and isn't quite sure why anyone else would be offended by it.