Saturday, June 24, 2017

The option of a consultative referendum on independence

Assuming Nicola Sturgeon isn't about to make the dreadful mistake of substantively changing the SNP's policy on an independence referendum (and, touch wood, that worry has receded somewhat after Ian Blackford's strong restatement of the policy in the Commons the other day), it's fair to say that the general election result has only made a referendum less likely to the extent that it's made a soft Brexit a little more likely.  If, as the likes of Michael Portillo predict, Britain now remains in the single market, there will be no need for a referendum because Ms Sturgeon's red line won't have been crossed.  But if, as seems much more probable, we're still heading towards a 'bespoke red white and blue Brexit' that falls well short of single market membership, the logic and mandate for a referendum will be inescapable.  The Tories clearly want to block any vote from taking place before 2021, but they were saying much the same thing (albeit in a somewhat cagier fashion) even before the election.

So the big question remains exactly the same as it was a couple of months ago : if a referendum becomes necessary, and if the Tory government says no, what then?  We've been told repeatedly that Nicola Sturgeon is not attracted to the idea of a consultative referendum held without the granting of a Section 30 order by Westminster.  That seems odd, because Alex Salmond was preparing the ground for exactly that sort of referendum in his early years as First Minister, at a time when Ms Sturgeon was his deputy.  It would be a fully legal referendum, not a 'wildcat vote' as STV once described it, because in order for it to happen the lawyers would have to successfully frame the legislation in such a way that the Presiding Officer would certify it as being within the parliament's powers.  It might also have to survive a legal challenge.  If it proved possible to reach that point, it's not hard to see the attractions -

1)  The referendum would go ahead without the SNP having to cross any further electoral hurdles.  Leader-writers in the Observer would be able to splutter indignantly to their hearts' content about the independence debate being "settled", but it wouldn't make any difference.  The mandate for a referendum was received in the Holyrood election last spring, and the SNP's term of office still has almost four years to run.

2) As soon as a consultative referendum becomes a reality, the unionist parties will be faced with a monumental strategic dilemma.  They'll either have to campaign full-bloodedly for a No vote, or boycott the referendum completely.  If they do campaign, they'll effectively acknowledge the legitimacy of the vote, thus rendering the denial of a Section 30 order completely pointless.

3) If, on the other hand, there is a unionist boycott, a Yes majority will become inevitable, and the only task for the Yes campaign will be to produce a turnout on their own side that at least makes it look plausible that the victory could still have been won without the boycott.  (It shouldn't be forgotten that Strathclyde Regional Council's consultative referendum on the water industry in 1994 stunned everyone with a turnout of more than 70%, in spite of an effective Tory boycott - the theory before the vote was that anything in the 40s would be decent enough.)  OK, the unionists will brand the result illegitimate, but they'll be on a lot weaker ground than before - instead of arguing that the No vote in 2014 has settled everything, they'll be arguing that a much more recent Yes vote hasn't settled anything at all.  We might even end up with the ultimate role reversal of the SNP fighting the 2021 Holyrood election on the basis that Indyref 3 isn't wanted or needed, and that the opposition parties should accept the result of Indyref 2 and move on.

Sounds like a win/win to me.

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36 comments:

  1. Brexit was an advisory referendum, what's the difference between consultative and advisory?

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    1. I'm using 'consultative' as shorthand for any referendum that takes place without a Section 30 order.

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    2. OK.

      Just wondering, do you think there would be any merit in calling a referendum called without a Section 30 order an advisory referendum?

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    3. In Westminster terms there's two kind of referenda.

      A binding one would be like that held on AV. There a law was enacted that would come in to effect only if triggered by a referendum result and would lose effect otherwise.

      A consultative referendum is what it says on the tin. The EU referendum was one such. That's why there was such an uproar about the government acting on the result without parliament being consulted.

      The problem Holyrood faces is that technically Scotland's place in the UK is defined in laws reserved to Westminster.

      What a section 30 order does is transfer legislative power to Holyrood allowing it to make a law that ensures Scotland's independence on a Yes result.

      The above is the constitutional position according to Westminster. However the UK as a signatory to the UN charter has agreed to self determination of peoples. That would place it in a rather awkward position as far as ignoring the outcome of even a consultative referendum should the result be unequivocally positive.

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  2. It just seems a little bit like some yes supporters are more focused on having a referendum than winning a referendum.

    Many yes voters like me, don't believe there is enough of an apprtite yet because Brexit is still playing out. The worse it gets (and I predict that it will) the more Ill appreciate that chance of a referendum. But they need to be quiet about it right now because it did come across like 'any excuse' for another one.

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    1. Sorry, Raymond, but it's in the realms of utter fantasy to think we can a) close off all possible democratic routes to independence, and then b) win independence.

      Simple question - how do you win a referendum without holding one?

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    2. There are many who have been left in desperate circumstances by Westminster who have already waited too long, so you can't really blame them for any impatience.

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  3. Sturgeon is yesterdays wummin and you nat sis know it. The Brit Scots will vote for the Union and you narrowback pre Neanderthal English hating Jock Fascists know this. The Neanderthal was progressive you fash are just bunions. Sad tae say but true.

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  4. Interesting, but complete the thought. What do you do after winning such a consultative referendum?

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    1. I did complete the thought!

      "We might even end up with the ultimate role reversal of the SNP fighting the 2021 Holyrood election on the basis that Indyref 3 isn't wanted or needed, and that the opposition parties should accept the result of Indyref 2 and move on."

      Having won a referendum, you regard that as your mandate for independence. If others don't accept that mandate, you then seek an election victory to reinforce the mandate in a non-boycotted contest. But you don't seek to have another referendum - if the unionists want to overturn the mandate, it's up to them to make the running and put a referendum in their manifestos.

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    2. Is that not a bit vague? The two possible democratic and legitimate routes to achieving independence are a referendum or an election. The essential point about either is the certainty that independence will follow victory. The reason why this is essential is that otherwise the crucial decision is taken out of the hands of the people. If it is merely consultative, it lacks that element, and subsequent events are anything but certain. The Scottish Government could seize the initiative and provide certainty in the following way. Bearing in mind that a referendum takes time to arrange, let’s say one year, it could announce now the date of its planned referendum (within its stated timescale of the six months preceding the end of Brexit - October 2018 to March 2019) and give notice to the UK Government that if by one year before that date it failed to grant consent, the Scottish Government would abandon the referendum route in favour of the electoral route. The justification for this would be the UK Government’s unconscionable and autocratic prohibition of the democratic right of Scotland to make its own decision. If such a notice resulted in consent, so much the better. If it did not, the effect would be to transform the next election (Holyrood or Westminster, or both) into a de facto independence referendum, with a clear and unambiguous manifesto to declare independence in the event of victory. Either way, we would have certainty and democracy, and would have taken control out of London’s hands and placed them in our own. Whether we would win is, of course, a different question, but that’s what’s to fight for.

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    3. "Is that not a bit vague?"

      Not in the slightest, I think I've explained it in quite a bit of detail.

      "The essential point about either is the certainty that independence will follow victory."

      How is 'certainty' achieved by an election, in a way that it isn't by a consultative referendum? You never have certainty unless the UK government promises in advance to respect the mandate. What I'm talking about is a way forward in circumstances where the UK government is not being cooperative - and that is something we cannot directly control.

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    4. Yes, but in that sense you never have certainty about anything except the laws of physics (and perhaps UK calumny, which is above the laws of physics). What I’m referring to, however, is certainty of the political/constitutional process. The 2014 Indyref was conducted within the confines of UK law, and for the purposes of this discussion, given that both governments had publicly and formally agreed to respect the result, it was certain that independence would have been the outcome if the vote had gone that way. The referendum itself, however, hinged on London’s consent. The election route is different, because it does not require London’s consent and gives London no input. If the people of Scotland were to elect by a democratic majority of votes in a parliamentary election a party or parties whose manifesto clearly, expressly and unequivocally stated that they would declare independence, that decision would satisfy the requirements of legitimacy (even according to the late Margaret Thatcher, remember) and would receive international acceptance, all the more so since the other (and in some ways preferable) route of a referendum had been blocked by the UK Government. In that sense, it would be a fait accompli, out of London’s hands, and is in this sense that I refer to certainty.

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    5. I genuinely don't understand the distinction you're drawing. The legal and constitutional position is that the UK government can ignore any sort of mandate, regardless of whether it is acquired via an election or a consultative referendum. In the scenario you're painting, the Scottish government would certainly have an excellent case for seeking a process of international mediation, but there would be no greater automaticity or 'certainty' than there would be with a consultative referendum.

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    6. Many thanks. I'll leave it there, but before signing off let me express my gratitude for the existence of your site with its insightful articles and very often the kind of astute analysis which cannot easily be found elsewhere. Keep it up!

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    7. A referendum takes a year to arrange? Says who?
      Six weeks should do it.

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  5. Excellent analysis as usual James, it's game on.

    It's imperative that the SNP regain its confidence and sense of mission at this crucial juncture. There's everything to play for.

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  6. There is an awful lot of hypothesis in this,as there is in everything in such unsettled times.
    What do we know for sure? Not very much,except that the union is far from stable.The 2014 referendum was won on the promise that Scotland is "better together".The challenge for unionists is to ensure that the majority of Scots continue to think that promise is being delivered.If Brexit,in whatever form it takes,brings prosperity to the people of Scotland that won't be a problem for them.

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  7. I have always favoured the idea of a consultative referendum as a fallback course of action should a Section 30 order be refused. But there is a problem with this. A problem that may explain Nicola Sturgeon's reported ambivalence towards the idea. The potential stumbling block is that opting for a consultative referendum may be represented as acceptance of the UK Government's authority to deny a full constitutional referendum.

    Some may argue that the UK Government's right to block a constitutional referendum is enshrined in law. But it could well be argued that the relevant legislation is superseded by the UN Charter's guarantee of the right of self-determination.

    I would make the further point that we must, as a matter of urgency, disengage the constitutional issue from Brexit. We must make it perfectly clear that, while Brexit is obviously important and looms large in the the current political environment, the independence campaign proceeds regardless of the outcome of so-called 'negotiations. here is no Brexit deal which negates the aspiration to restore Scotland's rightful constitutional status.

    As to the matter of what Nicola Sturgeon may say about how the Scottish Government will proceed in the aftermath of the UK general election, I have set out some thoughts on that which can be read at http://indyref2.scot/things-to-come.

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  8. Problem is the entire justification and push for scotref/indyref2 is based on the "material change" that is Brexit. It can't be decoupled from Brexit without killing off the mandate and argument for why it's needed.

    There's another problem in that it looks like Brexit isn't changing support for independence. I get the "window of opportunity" argument, but the risk is that, faced with a rock and hard place choice, we end up losing another referendum. It's all very crap.

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    1. Ah, I see from your blog post that you're saying the line should be that brexit is going to inevitably be terrible so therefore there's definitely gonna be an indyref2. Not what I expected from "decoupling from brexit".

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    2. If 2014 taught us anything, it's surely that any dramatic movement in public opinion is likely to happen in the heat of a campaign. There's no guarantee that it will happen at all, but the fact that public opinion is static now does not mean a referendum is unwinnable.

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    3. "If 2014 taught us anything, it's surely that any dramatic movement in public opinion is likely to happen in the heat of a campaign. There's no guarantee that it will happen at all, but the fact that public opinion is static now does not mean a referendum is unwinnable."

      Indeed, see GE2017 for a similar thing - big public opinion shift over that campaign

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    4. If 2014 taught us anything, it's surely that any dramatic movement in public opinion is likely to happen in the heat of a campaign.

      I'm of the pessimistic view that 2014 was the awakening of the Yes vote, and now we are in a kind of cold war with two mostly decided camps facing off. Less scope for movement to/from Yes.

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  9. The only thing that can be the "entire justification" for a referendum is the will of the people. Brexit was NEVER be "entire justification". Brexit could not be the ENTIRE justification. That would involve ignoring all the other justifications. Why would we do that?

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    1. Ah okay - the allcaps words do clarify your position. Cheers.

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  10. OR they can assume the right from last time is still standing. Legal opinion on that one is strongly divided. So they pass a binding Section 30 referendum bill and dare No10 to take them to court after the Article 50 debacle.

    That one could also be put past the presiding officer with a legal opinion.

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    1. The last Section 30 expired in December 2014.

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  11. I think that the SNP ought to be brave. It ought to state unequivocally that a vote for them is a vote for independence. Fortunately, or unfortunately the timing of a UK General Election is outwith their control. I am a tad astonished that that possibility is sidelined in this discussion.

    Well, it would put the cat amongst the pigeons at the very least.

    Frankly, as a member of the SNP, I don't quite understand why the first manifesto point is not always independence. That is the point of the SNP is it not? That is what we are supposed to be voting for?

    Surely, a party that fights for independence should headline that policy?

    James and others, correct me if I am wrong.

    Love your blog. Paid enough for one round of cheese and tomato pieces.

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    1. The majority of Scots did not vote Nat si. That is why the Nat sis are fascist.
      The Unionists need to mobilise against this little bunch of mobster dictators.

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    2. The troll "GWC2" calls scottish people "jocks", made death threats on this blog while posing as a Yes supporter, advocates arming Leave campaigners, arbitrary deportations and public mutilations, claimed Jo Cox's husband was a fascist, uses racial, homophobic and ethnic slurs, pretends to be Labour (badly) while espousing far-right racist hate-speech, praises Theresa May and the tories and displays a perverted poisonous obsession with Scotland's First Minister.

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  12. james,

    Don't know how you do this, but your fundraiser should always be at the top of your blog. You are too important for an oversight to see you go.

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  13. If we could just find out exactly what it is the Tories want out of Scotland,I am sure some sort of deal could be done.

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  14. Watching events in Scotland unfold from Wales- it seems to me that people are scunnered( a Scots word I learnt from a guy from Scotland who has learnt Welsh here) with referendums.

    I think the Tories managed to use the 2016 Euro referendum to their full advantage in Scotland in the recent Westminster election: it's almost as if they purposely set out to show that the grossly misleading propaganda war waged by both sides of their party in that referendum just goes to show that referendums are something to be avoided like the plague.

    It's just like the Tories to be able to use their own shit-storm to their own advantage. They're not known as the most successful Conservative party in Europe in terms of years in power for no reason.

    Scots should remember that only around 5% of countries have won their independence through a referendum: 95% have declared independence through elections or by setting up a Convened Parliament of their own and declaring themselves independent.

    This is the way ahead for Scotland- not another divisive referendum which just plays into the hands of the British establishment.

    Cymru Rydd

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