The possibility that the UK Government was going to play it straight in the debate on Scotland’s constitutional future was always non-existent. As was David Cameron’s much lauded aim that he would focus on the positive case for the union.
With just over one month since the SNP landslide the role of uncompromising unionism has been taken up by Lib Dem Michael Moore, Scottish Secretary of State. He has come out in support of the need for two independence referendum votes, one held by the Scottish Government and the other by the UK Government. He has commented, in The Times Scotland Edition (June 7th 2011):
We are looking very carefully at all the legal aspects of an advisory [Scottish Government] referendum and fully engaged in that.
Moore then stated:
In terms of constitutional law at present, a binding referendum would be for the UK Government to determine – but there is scope for an advisory referendum within the existing rules and regulations.
He went on:
If we have an advisory referendum set up by the Scottish Government, I think there is a strong likelihood, and it is certainly my personal view, that you would need a second referendum on the formalities of agreeing what has been sorted out between the governments.
This is fundamentally and utterly wrong, without grounding, precedent, dangerous and bad politics for Scotland and the UK. And here’s why in a simple guide:
1. There is no precedent anywhere in the world for two votes. There have been 140 plus new states which have become independent since the advent of the United Nations, the end of the British and French Empires, and the demise of the Soviet bloc. Not one double vote anywhere.
2. Then there is the argument that the Scottish Parliament could hold an advisory vote but it would be up to the UK Government to hold the ‘legally binding’ vote. This is constitutionally inaccurate. All UK referendums are ‘advisory’ due to the practice and folklore of parliamentary vote. There needs to be UK Parliament approval for some of the issues which would flow from Scottish independence and the end of the United Kingdom, but not another referendum.
3. The two vote argument confuses legal and political dimensions. It is based on a literal interpretation of constitutional law and ‘the constitution’ being a reserved matter. Ten years ago it was argued by many that it was outwith the powers of the Scottish Parliament to have an independence vote, whereas no one really takes that view now. The point is that political considerations will always outweigh legal ones.
4. The second referendum would mean that after any ‘Yes’ vote in a first ballot the negotiations between the Scots and UK Governments would be held with everyone taking positions to influence and shape the second vote. This would make serious negotiations over some of the difficult issues near-nye impossible, with each side vying for position in the second vote campaign.
5. The right to self-determination and independence has been a fundamental principle of international law at least since the establishment of the United Nations.
6. Even the most arch-unionist of all Margaret Thatcher and every Tory up until now has acknowledged that Scotland has a fundamental right to its independence if it wants it. This after all was during the Thatcher years the stonewall Tory argument against devolution: a halfway house, and that if the Scots want independence no one would stand in their way. No one mentioned it involved two hurdles and two bites of the cherry for the British state.
7. The British state is engaging in what could be seen as constitutional gerrymandering. This is the equivalent of the 40% rule imposed on the 1979 devolution referendum and would be seen as such.
8. Then there is the role of the Lib Dems. While David Cameron has claimed he has a ‘respect agenda’ towards the Scottish Government and will articulate a ‘positive unionism’, the Lib Dems have taken the route, despite their history, of becoming the hard line uncompromising unionists. Thus their blanket opposition to any further powers in the Scotland Bill announced yesterday.
9. There are the unequivocal positions taken by such British ‘experts’ as Vernon Bogdanor and Robert Hazell. The former has made the case that Czechoslovakia’s problems in its ‘velvet divorce’ show the need for two votes. But Czechoslovakia didn’t even have one vote, so surely its troubles only really make the case for one vote not two?
10. Then there is the whole power and legitimacy argument which underlines all of these arguments. The future of Scotland’s constitutional status will be decided by the Scottish people and Scottish Parliament, not UK ministers or the UK Government. Michael Moore must know that, and his political posturing is a desperate act which illustrates a lack of confidence in his case and position. It is a far cry from every one of the Scottish Lib Dem MPs signing ‘A Claim of Right’ invoking popular sovereignty.
These are revealing arguments put forward by two vote supporters. What is interesting with the Bogdanor/Hazell axis is that they do not offer their view as one opinion, or as something offered in the spirit of debate and public deliberation. Instead, this is the absolute truth, and we should all recognise it as such!
This morning I was on BBC Radio Scotland’s ‘Good Morning Scotland’ with Alan Trench, formerly of the think tank the Constitution Unit and whose ‘Devolution Matters’ blog is a thoughtful site, and whom I respect and value the opinion of. When I posed the argument that there was no precedent for the two vote argument anywhere in the world, and cited the 140 states independent since 1945 and the end of the British Empire, Trench became rather animated to put it mildly and claimed I was comparing Scotland and the UK to ‘a colonial situation’. This is of course spurious in the extreme and was not what I was saying.
Trench then claimed that the Scottish/UK situation was unprecedented anywhere in the world with the exception of Czechoslovakia. This is not true either as I pointed out. East Timor, Eritrea, Southern Sudan, Kosovo, Montenegro, ad nauseam. Numerous nations have become independent from larger entities. None of course had two votes.
Lets leave the last word to Professor Matt Qvortrup who has been called the ‘world’s leading expert on referendums’. This is what he said in 2007 about a Scottish independence referendum:
There has been a great deal of debate and discussion in recent times over the question of the Scottish Parliament holding a referendum on independence. Like any other parliament, the Scottish Parliament would be quite entitled to do so if its members so desired.
He further said:
In the United Kingdom, all referendums are advisory, though if the Scottish people did vote for independence in a referendum that met normal democratic standards, Westminster would be obliged to recognise that result.
And on the case for two votes he offered the following conclusive opinion:
There are no examples of two referendums being held before independence was granted.
So lets bin the two vote argument here and now. It is the slow demise of a once proud British unionism which recognised the uniqueness of each component nation in the United Kingdom. And which now engages in desperate disinformation and dissembling, a last ditch rearguard action for the ancien regime of the British state.
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