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The Constitutional Wrangle For Dummies

Posted on January 13, 2012 by

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.


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.


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.

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    9 to “The Constitutional Wrangle For Dummies”

    1. Morag says:

      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.

      Bingo.  I don't see what the unionists could have done that wouldn't have played into the nationalists' hands though.  Propose a genuine devo-max option for the referendum, campaign for that, and undertake to see the delivery of the necessary legislation through Westminster if it wins the popular vote?  Hell would freeze over first.  And in the unlikely event of that happening, it would be a stepping-stone so close to the independence bank that the rest of the way would be a casual stroll.
      Propose some sort of fudge option, and pretend it's devo-max?  That's hardly giong to work any more, with all the commentators who have confidently described devo-max as "control of everything except foreign affairs and defence".  Proposing Calman with a couple of extra bits of lace is hardly going to fool anyone.
      What they're trying is, we must get this independence distraction out of the way first, before we address the question of extending the powers of the Scottish parliament.  In other words, vote no and we'll give you some sort of vague jam tomorrow, trust us.  Will it work?  Who knows.  After Douglas-Home in 1979, and seeing what Westminster did to the original Calman proposals. I have my doubts.

    2. peter says:

      no taxation without representation. i wonder how a 16/17 year would get on if  s/he challenged that one in court.

    3. Morag says:

      Is there any such law?  I don't believe so.  What about foreign nationals living here?  They pay tax, but aren't on the electoral register.

    4. RevStu says:

      "I don't see what the unionists could have done that wouldn't have played into the nationalists' hands though."

      It was a tricky position for them, brilliantly played by Salmond. All they could have done was call Salmond's bluff – support devo max and invite him to either run a referendum he'd be all but certain to lose, or appear undemocratic and lose support.

      Of course, there's a strong argument that says devo max would be good for Salmond too, and it would, but it would almost guarantee the UK remaining United for at least a decade and probably more – during which time Salmond would be almost certain to have retired, unquestionably dealing the SNP a severe blow.  The current Unionist strategy is a massive all-or-nothing gamble.

    5. Morag says:

      I'm not sure they could realistically have "called Salmond's bluff".  Everybody and his Auntie has been describing "devo-max" as Scotland having full control of everything except defence and foreign policy.  Raising and keeping all revenues, and simply sending a "block grant" to Westminster to pay for the remaining shared functions.
      Can you seriously imagine any unionist politician committing to legislate for that outcome?  I can't.  Conversely, if they had offered something appreciably less than that, they'd be shot down by the chattering classes who have convinced themselves that they have defined devo-max as above and that's what people want.

    6. RevStu says:

      I think in your last sentence you maybe underestimate the degree to which the establishment and its tame media would have been able to sell a devo-max proposal to the electorate which Westminster could live with. It’s only because the FUDs have allowed Salmond to dictate and define the terms of the debate that the description of devo-max has been allowed to run wild and free.

    7. Morag says:

      That being so, it's going to be a bit difficult to corral it now, though.

    8. RevStu says:

      Oh God yes. If the Unionist camp suddenly decides to back devo-max now, having opposed it so vehemently for the last seven months, the U-turn would annihilate what few shreds of credibility they still have left.

    9. Colin Dunn says:

      This will be a tricky balancing act for the SNP, but could get interesting.
      Their planned consultation at the end of this month is bound to confirm that the Scottish population are strongly in favour of a Devo-Max option. If their ultimate aim is a single question, then the SNP is going to have to angle to have an additional Devo-Max question scuppered by Westminster.
      To achieve this end they will have to be seen to be championing it on behalf of Scotland, but not so much that they actually succeed in having it added, or be seen to as railing at Westminster impotently. That way it'll portray Westminster and their Labour, LibDems and Tory chums in Scotland as the bad guys blocking democracy. This will then force a lot of Devo_max supporters overt the to the Yes to Independence camp.
      Tricky scenario.

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