Wednesday, January 11, 2012

The first skirmish in the independence battle : winning the consultation numbers game

It goes without saying that Michael Moore's consultation exercise is a farce - to the extent that the outcome is not already pre-determined, it will not be greatly informed by the submissions. However, given the PR difficulty of holding a consultation and then completely ignoring the findings, it may make some small difference at the margins. So in my view it's vitally important that as many individuals as possible take part in the consultation (click HERE to do so), and in particular that they emphasise repeatedly in their answers to the questions that the UK government should have no role other than to sit back and respect the Scottish Parliament's right to decide on the nature and timing of an independence referendum.

Here is the first draft of my own submission. I'd be interested in hearing any suggestions for improvements before I send it off!

1. What are your views on using the order making power provided in the Scotland Act 1998
to allow the Scottish Parliament to legislate for a legal referendum in an Act of the
Scottish Parliament?


First of all, the premise of this question is incorrect, because it assumes that the UK government's legal advice represents the final word on the matter, whereas of course it is just one opinion among many, no more or less valid/interesting than any of the others, and certainly no more objective in its source. The Scottish Government have clearly received advice that they already have the power to legislate for an advisory referendum, and the election pledge to hold a referendum that attained such an overwhelming mandate last May was founded on that advice, not on any intention to seek 'clarification' or 'assistance' from the UK government or its law officers. Nevertheless, if the UK government is sincere in both its own view that there is a legal problem and its claim that it has no wish to interfere in the referendum process, then clearly the most sensible way forward would be to use the order making power (or some other means) to unambiguously grant the Scottish Parliament powers over a referendum without any conditions whatsoever, whether regarding the date of a poll, the question(s) to be asked, the regulatory body to be put in charge, or the minimum age for electors. Only this unconditional approach would complement rather than interfere with the Scottish Government's plans, and would be respectful of its mandate to implement those plans.

2. What are your views on the UK Parliament legislating to deliver a referendum on
independence?


It should not. It would be wholly wrong in the current circumstances for Westminster to seek to directly deliver an independence referendum. In the pre-devolution period it would of course have been appropriate for it to legislate for such a referendum (because no other institution could), and many of us argued that it should. It refused to do so. Now that there is a Scottish Parliament in place perfectly able to deal with these matters for itself, and especially given that the current parliament clearly intends to do so within three years, it would be absurd and offensive for Westminster to suddenly decide in quasi-colonial fashion that it can do the job better.

3. What are your views on whether the Scotland Bill should be used either to:
i) give the Scottish Parliament the power to legislate for a referendum; or
ii) directly deliver a referendum?


As explained above, it would be wrong for Westminster to seek to directly deliver an independence referendum, so it makes no difference whether the proposal is that this should be done by means of the Scotland Bill.

On sub-question i) my views are as explained earlier : the premise is incorrect, but there is nevertheless no harm in the UK government seeking to unambiguously transfer legislative powers over the holding of a referendum to the Scottish Parliament (by means of the Scotland Bill or other means), as long as it does so without setting any conditions.

4. What are your views on the oversight arrangements for a referendum on Scottish
independence?


My personal view is that the body in charge should be a distinctively Scottish one, mandated to act by the Scottish Parliament. There are clear dangers that a predominantly non-Scottish body such as the Electoral Commission will unwittingly bring subtle pro-union biases to the table, and would not be able to administer the poll in an even-handed manner. However, from the point of view of this consultation, the only thing the UK Government should be concerning itself with is that the Scottish Parliament is the appropriate institution to legislate on oversight arrangements. Once it accepts that principle (as it surely must do if it means what it says about not interfering) then it would of course be open to the individual parties represented in the UK Government to argue on the floor of the Scottish Parliament for whichever oversight arrangements they think are most suitable, and to seek to prevail in a democratic parliamentary vote.

5. Do you think the Electoral Commission should have a role in overseeing a referendum on
Scottish independence?


My personal view is no, for the reasons explained above. However, this should exclusively be a matter for the Scottish Parliament to decide upon, and the UK Government should not be concerning itself with it one way or the other. It seems likely that if allowed to proceed without interference from Westminster, the Scottish Parliament would indeed consider the potential role of the Electoral Commission with the seriousness it deserves, and then decide the matter by democratic parliamentary vote.

6. What are your views on which people should be entitled to vote in a Scottish
independence referendum?


My personal view is that the local government/Holyrood franchise should be used, but extended to give young adults of 16 and 17 years of age the right to vote. However, I am deeply concerned that by posing this question in its consultation, the UK government is suggesting that it has a role to play in this matter. The Scottish Parliament is plainly the institution that should decide upon the franchise of any referendum it holds, and the UK government should not interfere in that process. It is of course open to the individual parties represented within the UK Government to make the case on the floor of the Scottish Parliament for a franchise that excludes young adults, and to then seek to prevail in a democratic parliamentary vote.

7. What are your views on the timing of a referendum?

My view is that the Scottish Government are wise to seek to hold the referendum in 2014, because this will allow the Scottish people a suitable period of time to properly consider the momentous decision before them. However, once again, I am troubled that by asking this question in its consultation, the UK government is implying that it has a role to play in determining the date. It should have no such role. If it is as respectful of the Scottish Government's mandate as it claims, it should simply accept that the date is exclusively a matter for the Scottish Parliament to decide upon.

8. What are your views on the question or questions to be asked in a referendum?

It should be open to the Scottish Parliament to ask whichever questions it wishes. This is the Scottish people's referendum, not anyone else's. For the UK government to seek to find a way (as it appears minded to do) of legally blocking a second question on 'devolution max' when there is ample opinion poll evidence that this is an option that attracts widespread public support, would not merely be disrespectful of the Scottish Parliament's mandate to act, but even more importantly would also be a deeply cynical assault on the democratic aspirations of the Scottish people.

9. What are your views on the draft section 30 Order?

As stated previously, my view is that it would only be appropriate for the UK government to use the order making mechanism if there were no conditions placed on the powers being 'granted' to the Scottish Parliament. Therefore, the following words that clearly impose such conditions should be deleted -

"(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under
provision made by the Parliament.
(3) The date of the poll at the referendum must be no later than ***"

"There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice
between only two responses."

"(5) The persons entitled to vote in the referendum must be the persons who would be entitled to vote in an
election for membership of the Parliament—
(a) if one were held on the date of the poll at the referendum, or
(b) if one were held on that date but alterations made in a register of electors after a particular date were
disregarded."

"(6) The referendum and arrangements in connection with it must be in accordance with Part 7 of the Political
Parties, Elections and Referendums Act 2000 (referendums) as if the referendum were within section 101(2) of
that Act, subject to any modifications specified in subordinate legislation."


UPDATE : Thanks to Tris for his helpful suggestions, which can be read below. Another point that it's since occurred to me would be well worth making relates to the UK government's stated objectives of a "fair, legal and decisive" referendum. The 'legal' point may be one thing, but the fact that the government are implicitly suggesting that fairness and decisiveness can only be ensured by means of Westminster 'supervision' calls into question their own stated faith in devolution. The challenge should be made to them to demonstrate their authentic commitment to devolution by pursuing their supposed objectives through the unconditional transfer of the relevant powers, and by simply trusting the Scottish Parliament to make the right decisions - as they are content to do on the administration of local government elections, criminal justice, health, education, and countless other matters of vital importance to people's lives. Do the UK government see the Scottish Parliament as a grown-up legislature capable of making grown-up decisions, or don't they?

I've therefore added these words to my submission -

"In conclusion, I'd like to touch on the UK government's stated objectives in launching this intervention, namely to secure a 'fair, legal and decisive' referendum. It is surely self-evident that these objectives are qualitatively different from each other. The pretext for this consultation is the UK government's legal advice that the Scottish Parliament is currently unable to hold a legal referendum. But to the best of my knowledge the UK government are not in possession of equivalent advice stating that the Scottish Parliament is intrinsically incapable of administering a fair and decisive referendum.

The UK government has repeatedly professed its faith in devolution, implying that this constitutional arrangement is superior both to independence and direct rule from London. But the very essence of devolution is surely that the 'national' parliament is content that worthy objectives such as 'fairness' are not imperilled by simply trusting the 'sub-national' legislature to make responsible decisions without supervision or guidance from 'above'. Given that the UK government correctly accepts that legislating for a referendum is appropriately the province of the Scottish Parliament and not Westminster, the aforementioned principle must logically apply in this instance. I would therefore urge the UK government to act in comformity with its stated commitment to the principle of devolution, by not seeking to stand in the way of the Scottish Parliament's efforts to achieve 'fairness' and 'decisiveness' by its own chosen means."

14 comments:

  1. What an excellent piece, James. Clearly you've taken a deal of time to compose thoughtful, intelligent responses.

    I have but one query, and I suspect that I may have misunderstood something in the response, or at best I'm being picky:

    Question 6: You say.... "It is of course open to the individual parties represented within the UK Government to make the case on the floor of the Scottish Parliament for a franchise that excludes young adults, and to then seek to prevail in a democratic parliamentary vote."

    I may be misunderstanding something, but this sounds on first reading as if you are saying that members of the UK parliament can speak on the floor of the Scottish Parliamentary Chamber. Of course I appreciate that the same 'voices' may appear in both the parliaments, given the connections between Scottish and English branches of unionist parties, and that this is probably what you mean, but there is at least some ambiguity in the wording.

    I am also wondering if there isn't some international law aspect to this question. Lallands Peat Worrier's piece on the legal aspects of the referendum has a response from Peter Thomson part of which reads:


    "....In international law (which trumps Westminster) the sovereign people of Scotland have the legal right guaranteed by UN Charters, Helsinki Accords and the Treaty of Vienna to hold a referendum on the issue of independence.

    "Further the UN legislation states the power from which the other is seceding can have no role in the organisation of or campaigning in the said referendum...."

    I wonder what your take is on that.

    Despite the above and the resultant dubiety of the rights of UK government to have any involvement in the process, I completely agree that it is important that as many people as possible get involved in these consultations.

    I will link to your post and encourage any readers who have their own blogs to do the same.

    We need, at very least, to show the UK that we care about this.

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  2. Westminster consultations are an intriguing thing

    Google Spartacus Report

    Basically some sick & disabled people used FoI to get submission details on a consultation about Disability Living Allowance, a consultation that had concluded no change.

    Funnily enough. 93% of the respondents were against it, including the Mayor of London, Boris Johnston, putting the validity of the consultation under some doubt

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  3. Great piece James. I note that condescending bobble hat James at Better Nation ( yep the name calling's juvenile and I'll stop when he ceases calling the FM the Great Puddin,) laments that "there’s actually a bit of a dearth of non-mental SNP-backing blogs" but graciously excepts the Burd and LPW.

    So to reiterate great piece James although from a green media perspective obviously a bit "mental".

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  4. 11.22am Anonymous, at least James has the baws to not hide behind anonymity. Show yourself or stop the personal attacks.

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  5. many apologies Kenny I meant to call myself Norman on that post. Or Ian. Or George.

    Och you choose.

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  6. Kenny Anonymous,

    I’m a different anonymous from the previous anonymous who replied to you, but if you wish, you may now refer to me as ‘Formerly Anonymous’ if that helps.

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  7. Oh, I forgot to say earlier what I really wanted to say on this thread – it’s Formerly Anonymous here by the way.

    Given that ‘Scottish’ Labour and the Westminster Tories are now so chummy – we knew that they always were, of course, but it’s nice to see it out in the open at last – to the extent that ‘Scottish’ Labour seem to be upholding the Tories’ belief that the Scottish government needs the permission of Westminster before it does, well, anything on this issue of the referendum, I’d like to ask a question.

    I know this question may be controversial so I would like to stress that I am not advocating this, in fact, I’d like to disassociate myself from the very suggestion, but I am genuinely curious about this completely hypothetical and unrealistic scenario.

    Suppose that some people, in a few of Scotland’s cities, outraged at the Westminster Labour and Tory parties’ attempts to bully the SNP on the referendum, were to respond with public protests. Suppose further that some of these protests got a bit out of hand. Were this to occur, what would ‘Scottish’ Labour’s position on this be? Would they be ‘Scottish’ riots or ‘British’ riots?

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  8. Aaaaargh, what's happened to the font on the comments? I hope I haven't hit something accidentally!

    Tris : thanks very much for the constructive feedback. The point about international law is a very important one, but I don't know enough about the subject, so I'll have to do some reading. And I'll also have a think about how to phrase the bit about the coalition parties better.

    Anon II : To the limited extent that I've had exchanges with him, James Mackenzie and I have never exactly hit it off, so I wouldn't particularly expect him to offer me an exemption from the charge of mentalism! But I do share his high opinion of both Kate and LPW (even if I only agree with Kate part of the time).

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  9. Really Good Post!!

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  10. Hello James, I have annexed my response, in case it should be of interest. Has to go in bits because of my verbosity. First Part.

    Response by Ewan G Kennedy, retired solicitor, Kilmelford, Argyll, to the UK Government’s Consultation on the Independence Referendum.

    I am taking part in this consultation with a feeling of unease, as I feel that the exercise is misconceived and something of an insult to the electorate of Scotland who recently elected by a clear majority a political party that had made no secret (as the document acknowledges) either of its intention to achieve independent statehood for Scotland in a timescale that was always reasonably clear and has, I accept since the date the document was published, become even clearer. Against this background references to such things as “great uncertainty” and “in secret, behind closed doors” are profoundly misleading and, I assume, calculated to frighten the reader.

    The consultation starts with the statement “We believe passionately…” and is signed by Mr Cameron and Mr Clegg. While these gentlemen may share a passionate belief I am at a loss to understand how the United Kingdom Government can do so. Governments are legal entities that create decisions with legal and political effects but it is anthropomorphic in the extreme to suggest that they are capable for forming emotions such as passionate beliefs. Surely any consultation document should be objective and present the issues in a reasonable and fair manner, indeed in the same manner as the document suggests the referendum should be carried out?

    The document also expresses a wish to keep the United Kingdom together. While I personally have republican sympathies I have no problem with the possibility that many or even a majority of my fellow Scots, a term by which I mean to include all those living here regardless of origin or ethnicity, have strong monarchist views and so also favour retaining the Queen as sovereign. The debate is about whether or not the northern part of the island she reigns over should be entitled to self-determination, a principle that is enshrined in international law and practice and that is frequently trumpeted by the signatories of your preface as the reason for armed intervention in the affairs of places far away.

    Finally I am not an expert but have been interested in and studied Scottish legal and political history over the last fifty years or so. I have taken a keen interest in the views expressed on both sides of the argument over the legality of the Scottish Government’s holding of its own referendum and am totally unconvinced that this could be successfully challenged, so I have to read the comments of Mr Moore, whose party is a tiny faction within the Holyrood Parliament, with a measure of cynicism. Whatever view is taken any referendum, regardless of by whose authority or by whom conducted, could not be other than advisory, so it’s misleading to speak in terms of legality. In fact it looks as if much of the debate over the last five years has been conducted without a proper analysis or understanding of the legal position. For what it’s worth it’s not clear that even the United Kingdom Parliament could legislate for Scottish independence if it wanted to. The furthest it could go would surely be to vote for its own dissolution, leaving it to the parties to the original union each to decide its own form of government for the future under the framework of international law that brought them together.

    Second part follows

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  11. Second part

    My answers to the questions are as follows.

    A legal referendum
    1. What are your views on using the order making power provided in the Scotland Act 1998 to allow the Scottish Parliament to legislate for a legal referendum in an Act of the Scottish Parliament?

    Answer: It is not required.

    2. What are your views on the UK Parliament legislating to deliver a referendum on independence?

    Answer : The UK Parliament does of course have the power to do this on whatever terms it decides, but it would look incredibly silly doing so, as there would then be two referendums.

    3. What are your views on whether the Scotland Bill should be used either to:
    i) give the Scottish Parliament the power to legislate for a referendum; or
    ii) directly deliver a referendum?

    Answer: Neither is necessary or desirable.

    A fair referendum
    4. What are your views on the oversight arrangements for a referendum on Scottish independence?

    Answer: The PPERA framework is acceptable.

    5. Do you think the Electoral Commission should have a role in overseeing a referendum on Scottish independence?

    Answer: Yes.

    6. What are your views on which people should be entitled to vote in a Scottish independence referendum?

    Answer: It will be for the Scottish Parliament and not UK Parliament to decide. My personal views are that the future of any nation rests with its young and that if you’re old enough to work and pay tax, get married or get sent to risk your life in the armed forces you should have a vote in that future.

    A decisive referendum
    7. What are your views on the timing of a referendum?

    Answer: What the SNP have promised for many years and have now confirmed seems ideal to allow for the necessary discussion and avoid other planned events.

    8. What are your views on the question or questions to be asked in a referendum?

    Answer: I was formerly of the view that there should be two questions, as it seemed that so many people wanted a version of devo-max, but am now coming to the view that one question could be preferable. This is because I think (a) there are problems with defining devo-max and it’s really for those who favour it do so and make the case for it and (b) there is plenty of opinion poll evidence that virtually all Scots want the powers of our parliament to be extended, a strength of view that is only bound to increase as the leaders of present UK government continue to parade their ignorance of our nation. Thus asking a separate question would not add have any practical benefit.

    The draft section 30 Order
    9. What are your views on the draft section 30 Order?

    Answer: It is seriously misconceived.

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  12. Thanks, Ewan. Obviously the one point on which we disagree is the second question. I have a feeling London are looking for responses like the one you gave as an excuse to legislate to ban Holyrood from asking a second question. I presume that, whatever our views on a devo max question, we'd all agree it should exclusively be a matter for Holyrood to decide upon, so perhaps it would be better just to say that. Although personally I wish I'd prefaced my own answer by making clear that I do favour a second question, to avoid all danger of misrepresentation.

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  13. Thanks, James. My own views on a second question have changed a bit, as I said. Maybe I'm a bit influenced by the fact that to me devo-max just looks such a bad option, i.e. you still get and have to pay for the nuclear bombs and wars everywhere.

    I'll let you know how I respond to the Scottish consultation in due course (as lawyers say).

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  14. Ewan:

    Splendid answers, made the more interesting by your knowledge of Scots law.

    On the matter of the second question, I see the problem with finding a way of defining exactly what "devo-max" is, and I also accept your point that, whatever it is, it will almost certainly leave us shouldering the costs of the imperialist foreign policy mistakenly followed by London at the behest of Washington.

    That said, I feel that it may be the step that the Scots need to help them to independence, being, as we are, an evolutionary rather than revolutionary people.

    I'd guess that within ten years of devo-max, Scotland would be independent.

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