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."