Monday, November 17, 2014

The alternative referendum

We're not there yet, because for now the only game in town is using next year's general election to hold Westminster's feet to the fire over The Vow.  But at some point before the 2016 Holyrood election, the SNP are going to be faced with a crucial junction in the road.  The moderate (for want of a better word) wing of the party will be pressing for the constitution to be put on the backburner in the 2016 manifesto, in order to demonstrate to people that we've accepted the referendum result, and that we're not just the party of independence but also the party of bread-and-butter issues and good governance.  I believe that was broadly the message of the guest post Marco Biagi MSP wrote on Lallands Peat Worrier's blog just after referendum day.  In the other corner will be people who think now is Scotland's golden opportunity to make a huge constitutional leap, and that to put off doing anything at all about it for seven years or whatever would be utterly crazy.

Nor can this choice really be averted by leaving a degree of creative ambiguity in the manifesto over whether an SNP government would seek to hold a referendum within the coming five-year term or not.  There are two reasons for that.  Firstly, for as long as there is legal ambiguity over Holyrood's ability to hold a referendum without Westminster's acquiescence, it'll be particularly important to secure an explicit and unambiguous popular mandate for any referendum that is proposed, as happened in 2011.  And secondly, if there was one big lesson from this year's Quebec provincial election, it's that a lack of clarity over plans for a constitutional referendum can prove fatal.

Luckily, I think there may be ways of squaring the circle.  Most obviously, the manifesto could make a conditional commitment that the SNP would seek an early second independence referendum if the UK voted to leave the European Union.  Moderates might seek the insertion of an equally clear commitment that there would be no independence referendum over the five year term in any other circumstances.  That would be a crystal-clear position that I think voters would see as reasonable.

But that can't be the end of the story, because the balance of probability remains that the UK will not leave the EU.  And that brings me back to a possibility that we've discussed before, and that Kevin raised again on the previous thread - why not commit to a referendum on full Devo Max instead?  That should be something that the moderates can accept, because there would be no question of it being a "re-run" of September the 18th.  It would build on the popular will that has already been expressed, rather than seeking to overturn it.  Fundamentalists in the party shouldn't have any great problem going along with it either, because it's not hard to see how it might bring independence closer - if there's a clear mandate for Devo Max established and the UK government ignores it, the next step is fairly obvious.

There are also legal advantages in making the next referendum about Devo Max rather than independence.  Lallands Peat Worrier recently claimed that the Edinburgh Agreement had weakened the argument that Holyrood already has the power to hold a consultative independence referendum.  I suggested to him that a Presiding Officer from a pro-independence background might use a generous interpretation of the law to certify a referendum bill as being within the parliament's powers, and then let the courts decide - an act which would in itself demonstrate that an exercise in Scottish democratic self-determination was being thwarted by London diktat.  LPW dismissed the idea out of hand, and insisted that the Presiding Officer didn't have the discretion to act in that way.  I'm not entirely convinced by that line of argument, because one thing you can be sure of is that any proposed referendum question will have been written by an ingenious lawyer trying to make it as indirect as possible in order to have at least a theoretical chance of being deemed to be in conformity with the law.

But luckily, all of this would be an academic point if the referendum was about Devo Max, because the Edinburgh Agreement had no effect whatever on the legality of consultative referenda that are not about independence (the word "independence" was specifically used in the Section 30 order).  LPW has confirmed that a Devo Max referendum would be a runner in legal terms, subject to the correct wording.

What format could it take?  The most obvious option would be a straight Yes/No question on the blueprint for maximum devolution that the Scottish Government submitted to the Smith Commission.  But there would also be the opportunity to do something more imaginative.  Why not do exactly what some of the polls do - give voters a shopping list of individual powers, and ask them to say in each case whether they think the Scottish or Westminster governments should be in control of them?  (We could even be cheeky and add foreign affairs and defence to the list - that might be seen as an attempt to secure independence via the backdoor, but if nothing else it would force voters to think carefully about what their specific objection to independence really is.)

The recent Catalan consultation offers another potential way forward.  It asked two questions - should Catalonia be a state, and should it be an independent state?  In our case we've already had the answer to the second question, but we've yet to ask the first.  You might wonder what a non-independent state actually looks like - well, it could be a sovereign state-within-a-state like a US state or a Canadian province, but a more interesting possibility lies closer to home, in the shape of Jersey, Guernsey and the Isle of Man.  Those territories are states, they are not independent of the United Kingdom, but they are not part of the United Kingdom either.  It's been lazily stated by a number of people (and I'm one of them) that by rejecting independence we've chosen to remain part of the UK for the time being, but that isn't strictly speaking true.

* * *

Bobmidd left this comment on the previous thread -

"there's an opinion poll coming out tomorrow giving the SNP 50% in Scotland."

Obviously I can't vouch for whether this is true or not, but I just thought you might like to know. "50% in Scotland" might imply a subsample, in which case it wouldn't be quite so significant.

* * *

The second Scot Goes Pop fundraiser closes on Wednesday morning at 8am (UK time).

56 comments:

  1. "there's an opinion poll coming out tomorrow" could well be the voting intention section of the Survation poll.

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    1. Looks like it is the Survation poll coming out later tonight.

      "David Clegg ‏@davieclegg 2 mins2 minutes ago

      Some more bad news coming for Ed Miliband and Labour later in the latest results from our Survation poll."

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  2. I would be much more happy to push for full Devo max than independence in the next few elections. I think there has to way of either delivering Devo max, or showing to everyone that there is no alternative to independence. I suspect Westminster would block a referendum on Devo max, but I think the SNP should at least try and hold one. I think it would be a good idea for them to have a pledge of a Devo max referendum in 2016.

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    1. "I suspect Westminster would block a referendum on Devo max"

      I don't see how they can.

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    2. Aren't constitutional matters reserved? Asking for devomax is clearly constitutional. However as in the Catalan case, there is great value in the population seeing the intransigence of the central govt.

      I would go further and include full fiscal autonomy, although we might lose that one...

      Personally I think that a Holyrood govt should refuse to pass a budget that would raise taxes and impose severe cuts due to Westminster changing Barnett. Then resign and force an election which becomes the devomax referendum by proxy.

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    3. Anything that is not explicitly reserved is devolved. Consultative referendums on subjects other than independence are not explicitly reserved. It makes no difference that the constitution is reserved, because a consultative referendum does not change the constitution.

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    4. "Anything that is not explicitly reserved is devolved. Consultative referendums on subjects other than independence are not explicitly reserved."

      Might this include a consultative referendum on Scottish sovereignty? "Do you believe that sovereignty should lie with [wording that means WM] or with [wording that means the Scottish people]?"

      If a second question were to follow the Devomax one, this is the question I would want. The importance of the soveregnty question is lost on many people and this would bring it right to the heart of public discourse. Like Devomax, the result of a sovereignty referendum would be a foregone conclusion, and once WM sovereignty has been overwhelmingly denied, their refusal of another indyref becomes much easier to ignore.


      "Fundamentalists in the party shouldn't have any great problem going along with it either, because it's not hard to see how it might bring independence closer - if there's a clear mandate for Devo Max established and the UK government ignores it, the next step is fairly obvious."

      Not to me (duh). UDI? Another indyref?

      Bloodsucker-HQ-by-the-Thames ever granting Scotland devomax/Home Rule/full fiscal autonomy is doubtful. The next time the RAF starts bombing Muslims Holyrood could just refuse the next defence cheque and UDI with 60% support.

      Which is not to say the referendum proposed by Kevin isn't a good idea, but only as leverage for indy IMO.

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  3. James, a consultative referendum on Devo max held by the SG would not be able to get through the courts, with all the challenges from the unionists. Without the approval of Westminster this would almost certainly happen. I see it as win-win for independence supporters, either we get a win a referendum on Devo max or Westminster does not allow it to happen, proving that only independence or the status quo are the realistic options left. I know most independence supporters know this anyway, but it will have been proved beyond any doubt by the British state itself.

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    1. I disagree on your first point - it might be challenged, but I think it would get through.

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    2. Muttley, can you or anybody else allay my fear that after the GE Miliband or Cameron won't explicitly state that Scotland won't be having another indyref?

      The win-win you outline above is appealing btw.

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  4. A referendum on Devo Max is a fantastic idea, and would unify Yes and No voters.

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  5. "Constitutional matters are reserved to Westminster"

    That sort of works when we've elected unionist MPs in majority to Westminster. I means we freely elected unionists so...

    However, if we e.g. elect SNP MPs in majority it becomes 'Scottish constitutional matters are reserved to the English'

    Note sure that'll have quite the same authoritative ring to it...

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  6. Like that point from Grim. A critical (small) proportion of Scotland are going to be need to be 'forced' to face reality.

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  7. Another interesting one, would be one about trident....agree about a devo max referendum.

    Its about exercising our right to determine our own future. And the various spin offs that come from that. I.e. belief and self confidence in Scotland.

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  8. @FitzyMan

    I agree, but I reckon it would get blocked by the British state. It would be a good idea for the SNP to put it in their 2016 Holyrood manifesto. Either it is delivered or it gets blocked, thus proving that the choice would now be between the status quo and independence, and the status quo means cuts every year to the block grant until at least 2020, and a probable exit from the EU.

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  9. All DevoRef speculation is obviously contingent on the 2015 result and the months after. A disappointing GE for the SNP will probably mean a big push for a DevoMax* ref. It's possible. We will do everything in our power to prevent it but we are still talking about FPTP and some truly gigantic Labour majorities to overturn. It won't be us guilty of complacency in 2015, be certain of that.


    However, a scottish labour wipe out, a tory gov, more meaningful powers turning out to be the utter bullshit we always knew it was, the prospect of an EU ref, many, many other things could tip the balance for the scottish public into a mood for another indyref sooner rather than later. Things we have no way of knowing just now so they will simply have to wait.

    DevoMax will be front and centre for 2015 anyway because of the unionist parties VOW So it's not a subject that we need worry about disappearing.

    Westminster couldn't stop a referendum but they could take untold years over the implementation since this would still be Devolution even if it is the Maximum amount. They aren't bright enough to realise how supremely counterproductive dragging their feet over that or indeed the VOW is so it would not end well for them. To say the least.

    Nicola's line in the sand over Trident wasn't just a principled move but very clever politics as a right-wing warmongering Blairite like the Eggman is going to find that a touch hard to deal with. Even little Ed's westminster placeman will have been told by now just how unpopular Trident is with scottish voters and indeed a good many scottish Labour voters. Murphy could well ignore them of course. It would hardly be the first time for a witless Blairite supporter of the Iraq war like him.

    Scottish readers of James blog will likely realise the significance in making that particular policy area crucial. ;-)


    *DevoMAX - All powers apart from foreign affairs and defence.

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  10. Everyone seems to agree that holding a referendum on Devo Max in the next Holyrood Parliament is acceptable as it 'listens' to the 'democratic' voice spoken by the people in September.

    Everyone also seems to agree that holding a referendum is acceptable should the UK as a whole vote to leave the EU while Scotland votes to stay in. Even though that is in effect what the 'democratic' voice of Scotland voted for in the Indy referendum.

    Why are you willing to countenance not 'listening' to the 'democratic' will of the NO vote on this occasion but set upon 'listening' to it on the first? Even stranger, a Devo Max referendum, which by it's nature, if successful, would have zero powers coming to Scotland from it that could prevent us from being removed from Europe by the UK.

    I am only pointing out the inconsistency here and am aware that its all to do with political niceties. It would be nice to have that acknowledged and not wrap the decision making up in the language of 'respecting' the 'democratic' voice of the referendum. A referendum that was neither 'democratic' nor even legal (with the breaking of purda).

    It's that reality that is behind the continuing and growing calls for Scottish Independence coming from the same electorate post referendum, as voted NO during that referendum.

    Lets be honest with the electorate and say that we are in a very dynamic political situation, and depending on the circumstances, we will always reserve the right to act in the interests of the Scottish people. We don't know, we could be facing a UKIP deputy that wants to close down Holyrood post 2017. In Westminster anything is possible and the electorate know that. Why tie ourselves to some self denying ordnance that could easily end up damaging Scotland, just because folk were fooled by Unionist lies last September?


    I suppose that will put me in your Fundamentalist column then James? :-(

    braco

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    1. The game really changes if our 'consent' to Westminster rule is reduced by the election of Scottish MPs with a mandate for Devo Max.

      Prior to 1999, if we wanted indy, we 'just needed to vote SNP [for Westminster]' ((C) unionists / Westminster). Now, we really have given that to Holyrood and it's hard to argue otherwise; Holyrood is far more democratic as is a referendum held by it. By going with the September referendum Scotland 'agreed' to this, as did Westminster.

      The 'old way' is still there, but maybe not quite the weapon it was, at least for indy, unless under very exceptional circumstances.

      However, if we give our MPs a devo max mandate - which withdraws consent for Westminster to control the bulk of fiscal and social policy in Scotland, leaving only defence and foreign affairs - then what happens?

      Will Scotland be officially governed by English diktat? If we keep electing compliant unionist MPs then it's 'British diktat' that we, in principle, agreed to. If we don't, then things get interesting...

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  11. There should not be another independence referendum for 10-15 years in my view. As far as Devo Max goes, in the end it's up to Westminster to grant it which they won't. Any referendum we attempted would be considered illegal and the press would spin it as a waste of public money and a power grab. It's a non starter unfortunately.

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    1. It's certainly not a non-starter, and I'd be amazed if it isn't being actively considered. It's not illegal - Lallands Peat Worrier made that clear on Twitter (albeit with the caveat that it would depend on the exact question asked).

      As for the press moaning about the expense, they could do that about absolutely any referendum, including Cameron's in/out referendum. That complaint wouldn't have a lot of purchase because referendums are actually pretty popular - people like being consulted. Repeat referendums are more problematical, but a Devo Max referendum wouldn't be a repeat - we haven't had one before.

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    2. When the Smith Commission falls short of expectations, good results in 2015 and 2016 for the SNP could build great momentum for a non binding referendum. I am certainly not anti democracy, but politically it does carry huge risk.

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  12. You CF can stick that anti-democracy attitude right up your precious arse!

    We get to decide OUR future. Not david fucking cameron. Not any politician. WE THE PEOPLE!

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  13. I read LPW's article and though I agreed with his conclusion, that part of Smith should be the right for Scotland to hold a referendum without "permission", I disagreed with his justification, that Scotland couldn't hold one on our own because the ScotGov had accepted the Section 30 and created a "precedent". It's two different routes, and ScotGov never admitted they didn't have the right to hold their own. So far, there have been no articles I'm aware of on this from the usual suspects, C Bell, A McHarg, S Tierney or N Walker, and others, more's the pity.

    Hopefully the question will become moot, as part of the deliberations do seem to be about the right of Scotland to control our own elections, and by inference, referendums. I can't help but feel that a turnout of 84.65% would help any court case immeasurably, as it shows that the People of Scotland very strongly responded to the referendum, and therefore asserted our right to actually have one. If the electoral roll is analysed, it may well be that the genuine turnout was more than 90%. I suspect Aidan O'Neill would rub his hands with glee at the thought of putting the case for that one, in a similar way to the EU citizenship idea.

    For the idea of a Devo-Max referendum I disagree. But if Devo-Max is obstructed, then that in itself could be a provisional reason for a - successful - Indy ref 2, and one that should not impair the SNP's chances in the Holyrood Election.

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  14. Why are the most belligerent types on here also always the most anonymous?

    Anyway. I've never quite understood why a potential Brexit keeps being held up as this totemic game-changer which would justify a quick second referendum. As braco says, voting against independence means that we agree that treaty arrangements will be made at UK level. Voters were aware on 18th September that a referendum on the EU was being mooted for the next parliament. So if Scotland does vote to stay and the UK to leave (or vice versa), that doesn't constitute a breach of what we thought we were voting for.

    I'm not averse to the idea of a second referendum (and a third, and indeed further referenda to rejoin the union!), but I don't see why this issue justifies it more than any other.

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    1. @Keaton

      Who were among the most vociferous voices for the No campaign? It was the big banks and big business. Who are currently making the most noise about opposing a UK exit from the EU? The same corporate interests. If the UK votes to leave, and Scotland votes for remaining in the EU, then a major constitutional crisis occurs. In addition, how can the same banks and big businesses, then continue to argue against Scottish independence?

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    2. For the EU reason, it's worth reading this:

      http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/4411/Sionaidh-Douglas-Scott-British-Withdrawal-from-the-EU-an-Existential-Threat-to-the-United-Kingdom.aspx

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    3. What is the relevance of the fact that many of the interests who opposed a Yes vote are also against leaving the EU? You might be right that many of these interests would become more lukewarm about the Union if they thought an independent Scotland would be in the EU while the UK would be outside, That would likely make it easier to win a second indyref, but it doesn't really provide any particular justification for holding one.

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    4. "Anyway. I've never quite understood why a potential Brexit keeps being held up as this totemic game-changer which would justify a quick second referendum."

      Pretty simple : because the No campaign told us that a No vote would keep us in the EU, and that a Yes vote would see us leave the EU. A Brexit would invalidate the whole basis on which some people voted No.

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    5. @yesindyref2

      That article says a lot about why it would be bad for Scotland if the UK left the EU, but doesn't (as far as I can see) give any reason why this issue should be afforded the special status it seems to have taken on in the independence debate.

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    6. @James

      A Tory win in 2015 would also invalidate the basis on which some people voted No. But few have said that would justify another referendum.

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    7. The 2014 referendum was not for the UK union but against breaking it and leaving the UK and EU (as we were told by the UK govt).
      Scotland is a party to two unions, the EU and UK. Our law is set by both unions.
      If we vote to stay in the EU (while the UK leaves) then we have two inconsistent desires from the sovereign population of Scotland.
      To me that lets our govt in Holyrood decide which is the most important however they may decide to punt it to the people again as Sturgeon has hinted.

      Btw not all of our foreign policy decisions are made in Westminster (some happen in Brussels) so this becomes an internal matter for the EU. 5 million EU citizens being stripped of their citizenship against their democratically expressed will.


      OK that's the theoretical justification, now the cold politics. If England wants to leave it will be advantageous to the EU to weaken it and reduce the loss by keeping Scotland in. We will have the full force of the EU in gaining international recognition. There will be for the first time a clear choice between the two unions were are party to.

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  15. @yesindyref2

    I see a Devo max referendum, and either outcome of it as a win-win situation for independence supporters. If we hold one and win, and polling has suggested for years that we would, then we get significant new powers for Holyrood, and be that much closer to independence. If it is blocked by Westminster, then independence is the only real option remaining, given that the status quo means almost enduring austerity and cuts to the block grant.

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    1. What if we hold one and lose? I'm not sure what polling you refer to, but did it present devo max as a middle option between the status quo and independence? If so, I'm not sure that it would make a reliable predictor of a binary devo max/status quo referendum.

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    2. The polling that has been done for years, and suggests Devo max is supported by around 70 per cent of the electorate here.

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    3. You got a link? I can only find polls which asked about a range of constitutional options, not one which focused on devo max specifically.

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    4. "What if we hold one and lose?"

      That's an argument for never doing anything. I know you mean wait for the right referendum at the right moment, but there'll always be an element of risk. Much as I would love it, we're never going to get to Norwegian-style support for independence (or even for Devo Max).

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    5. Devo max has consistently been the most popular constitutional option in the last decade or so according to the opinion polls. When the SNP sent in their Devo max proposals to the Smith Commission recently they cited a poll showing strong support for Devo max. I do not have any links. Ask James. If it was not the most popular option, why do you think unionist politicians and the MSM started mentioning it in regards to a No vote, in the last week of the referendum, when support for independence was surging?

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    6. @muttley79
      I'm not suggesting that it's not the most popular option, but that the reason for that is that it tends to be the "safe" middle choice in polls. In a 50/50 vote it might not fare so well.

      @James
      I do agree that people would likely vote for devo max: I'm just saying it might not be the shoo-in muttley79 suggested, and that he was neglecting one possible outcome in his hypothetical "win-win" situation.

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    7. If there was a referendum on Devo max in 2016, are you arguing that people will support the status quo (continuing cuts to the block grant, austerity for the foreseeable future), or do you think they will support Holyrood having almost all tax powers, energy, transport, and welfare powers?

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    8. 66%.

      http://www.heraldscotland.com/politics/scottish-politics/the-powers-struggle-poll-reveals-support-for-devo-max.25509432

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    9. Presented in those terms, obviously, they'd go for devo max. But that isn't how it would be presented. Project Fear 2.0 would attempt to persuade us that we owe our existence to English subsidy, and that if we had to rely solely on our own revenue we'd be Liberia with midgies. Devo max would probably still win, but that's not a done deal.

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    10. Keaton, reading your posts I am not sure I understand what it is you think is the best course for us to take. Are you against Devo max? Why do you fear the No campaign so much? They won the independence referendum, but remember they needed the full power of the British state to win, and even then they very nearly completely blew it. Do you want us to give up completely?

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  16. An exit from the EU is a game-changer to the extent that the numbers who would rather Scotland be united with the EU than the rest of the rUK, outwidth the EU could push the 45 well over the 50 mark.
    It has very little to do with a breach of what we voted for (or didn't) but when has politics ever been that clear cut.
    I wanted Scotland to be independent more than anyone, but now is not the time to be foolish - the gradualist approach has got us where we are now. Devo Max first, then we readdress the independence question when the appropriate time comes. An EU exit is a perfect opportunity for that.

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  17. Of course there is an inverse to LPW's argument as well. The SNP had a manifesto commitment to hold an Indy Ref, and obtained an overall majority on that manifesto. Accepting this (they're on record for that), the UK Gov offered an S30 amendment, sealed with the Edinburgh Agreement and enacted with the S30 amendment itself. This sets a precedent.

    In 2016 if the SNP have a manifesto commitment to hold an Indy ref and get in with a majority, then approach the UK Gov to make an S30 amendment, then the precedent works their way, that the UK Gov will have to enact an S30 amendment. If they refuse, they therefore sanction implicitly, the right of the ScotGov to hold a referendum regardless.

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    1. As I understand it, LPW's argument wasn't about "precedent", but rather that the Section 30 order had permanently changed the law. If you read the text of it, you can see what he means, although I do wonder if he overstated the case in claiming that there was no ambiguity remaining.

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    2. Well as he said "the bottom line is", but he didn't say why. The "permission" for the referendum expires on 31st Dec, but then so does the permission itself. The only way it's then relevant is effectively as a precedent. Written on the 1st Oct I think he was still in the post-NO doldrums "it's all over", similar for his views on the futility of Smith. I posted "cheer up", but also this URL with a who's who of constitutional law people signed to it. Before the S30 but still relevant I think:

      http://ukconstitutionallaw.org/2012/01/31/gavin-anderson-et-al-the-independence-referendum-legality-and-the-contested-constitution-widening-the-debate/

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  18. Why would the SNP want to hold another independence referendum within 18 months of a No victory in September's vote? That does not make any sense. You only get two goes at a independence referendum.

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  19. New Survation poll has SNP on 46% with Labour at 24%.

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    1. I assume that's respectively the best and worst ever ratings for each party with Survation. But in the current climate I barely batted an eyelid at them.

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  20. Given that 45% voted for independence and not all will be up for a quick rerun, then the SNP would logically be limiting there vote to less than 45% if they don't accept this result for now. However, by holding independence in abeyance, with the clear understanding that failure to deliver DevoMax and its back on the table, they align themselves with greater than 60% of voters.

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  21. I've been considering the Channel Islands or Isle of Man models since the post-referendum bounce began. There's a lot of mileage in such a scheme but it would mean completely unhitching the electoral wagon from Westminster altogether which would be fought against tooth and nail by every colour of Tory within Scotland but might not necessarily be so unattractive for the Conservatives in London.

    The nomenclature of such a step is fraught though. The Channel Islands and the Isle of Man are British Crown Dependencies so that might not sit too well. The only other extant label is British Overseas Territory which is inappropriate as we are not overseas! However the obligations and rights are not so far away from what we might aspire to in the short/medium term.

    Maybe it could be time to dip into the recent past and resurrect the concept of a Dominion. The Dominion of Scotland. Not too awful for the time being.

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    1. Phil,
      What's wrong with 'Nation'?

      braco

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    2. braco,

      We already are a nation and have been since we first took form as a distinct polity all those many hundreds of years ago. If we are, hypothetically that is, to go down this road then we should have clear nomenclature that differentiates Scotland from the rUK.

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  22. The electorate clearly want devo max over the status quo by a large margin. We know Westminster will not deliver it. However the SNP now have to flog the devo max horse until it is demonstrably dead, the media repeatedly report it as being so, and every low information voter in Scotland is well aware of the fact.

    I am not sure how long that will take, but 2016 strikes me as too soon. The 2020 election seems a more realistic timescale to start hammering home the failure to gain any kind of devo max, though in the current rapidly moving times, who knows where the pieces will be then? The electorate might well be scunnered with the SNP in Holyrood by then...

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