The referendum question, 'the Scottish dimension' and the future of Britain

Gerry Hassan
26 October 2009

Talk of independence referendums are in the air; the question, the number of questions, who calls it and most recently the number of referendums.

In the last few days, Jo Eric Murkens, a former Researcher at the academic Constitution Unit has revisited the argument of their book, Scottish Independence of a few years ago which made the case that Scotland needed to have not just one, but two votes on independence.

This argument states that the first vote would be ‘in principle' and would give a Scottish Government the mandate to open negotiations, and would be followed by a second vote on the terms of independence.

The Constitution Unit has tried to establish this as the uncontested case, something considered and unbiased which no one with a fair mind and disposition would dispute. However, the UK Government recently commented that the two votes would leave the SNP's plans in ‘a legal quagmire', while the UK Tories commented approvingly of this view.

Scotland needing two votes is not just contentious, it is inaccurate and wrong. It is wrong factually, legally and politically, and would have dangerous, damaging consequences for democracy in Scotland, the UK and internationally.

Legally the Scottish Parliament does not have the power to hold anything other than an ‘advisory' referendum. In the formative years of devolution the accepted view was that the Scottish Parliament did not have the right to hold a referendum, given ‘the constitution' was a reserved matter. Murkens recently cited Schedule Five of the Scotland Act as a justification for two votes when it does nothing of the sort, giving us a legal interpretation, ignoring the political realities.

This position has shifted as politics have trumped legal interpretations, and no one in any of the main Scottish or UK political parties challenges the right of the Scottish Parliament to hold an independence referendum, if it can get a majority of votes in the Parliament.

The Constitution Unit viewpoint is that there has to be a referendum to negotiate and then a referendum to endorse or not endorse the outcome of negotiations. This sounds simple and straightforward, but is in fact the opposite.

The more appropriate position is to use a single referendum to clarify, aid and give voice to what people believe and want and from this shape and inform the actions of the Scottish and UK Governments.

An important consideration is that there is no precedent anywhere in the world for two votes. Instead, it would be seen as a constitutional barrier and the equivalent of gerrymandering to influence the ultimate result. The Scots have already had one experience of this in the 1979 referendum when a ‘40% rule' was used - which was a percentage of the Scots electorate needing to vote for change - and which was seen as an act of partisan manoeuvring and interference which left an aftertaste of bitterness and resentment.

There are no comparative cases of two votes. Twenty four new nation states have been born since the collapse of the Soviet bloc and the dissolution of the Soviet Union, Yugoslavia and Czechoslovakia. Not one of them had two votes. Indeed not one new state anywhere has had two votes. Why should Scotland be the first and only one?

One really needs to ask what is the motivation behind this? Robert Hazell, Director of the Constitution Unit argues that the rationale behind their position is that the process of Scottish independence should be ‘a model of democracy' and that Scotland and the UK should strive to ‘set high democratic standards'.

If this is the case they have a funny way of doing so, for the two vote position is exactly the opposite of Hazell's reasoning. It would be seen as an unfair, disingenuous process which would crucially affect the actions of the main players, namely the Scottish and UK Governments and affect how the UK was seen across the globe. Two votes hardly fit with being viewed as a champion of democracy and human rights.

It would be seen rightly as putting significant obstacles in the way of the Scots deciding whether they want to be independent, and would contribute to a sense of bitterness and anger. Think of the bitterness the 40% rule produced in 1979 which lasted for two decades. Given the stakes are higher with independence that feeling of anger and fury would be multiplied several times over.

This goes to the heart of the British political system, our political classes and how they see democracy. In this they have used referenda with their usual pragmatism and belief in their own innate wisdom and statecraft. The 1979 Scottish devolution referendum was a post-legislative vote over a Scotland Act which few had any great enthusiasm for. The 1997 Scottish referendum (like the Welsh experience) was a pre-legislative vote based on the merits of a White Paper.

Just to cloud matters we have the British experience of the European Union. The electorate was denied a vote on 1973 entry in principle, given one in 1975 on the specifics of the renegotiated terms, and then denied a subsequent vote at every instance of European integration or enlargement by our political classes. This is not a Eurosceptic point, but a democratic one. Yet Scotland is meant to be the one exception to this, holding not one but two independence votes.

Where some of this comes from is a lack of understanding about the nature of the UK. The Constitution Unit previously argued that independence creates a new Scottish state and the continuation of the UK. They based this on the precedence of comparing 1707 with Irish union in 1801 and then Irish independence in 1922 with the prospect of Scottish independence; in the former case they have argued the UK just sailed on with a slight alteration of its title and it could they believe do so again!

This is wrong-headed history of the worst Whig kind. Scotland and England created the political union which is the UK, and Scots independence creates not one, but two new states.

There are many debates to be had on the issue of Scots independence and a definite need for more clarity and thinking. A simple, straightforward Yes/No vote would be a wise move to offer a clear, unambiguous result. The form of words matters, as we know from opinion polls. The question should be neutral and easy to understand, and not mention pejorative words such as ‘separate state' or ‘outside the UK'.

A multi-option referendum is a waste of time, an understandable position for opposition politicians (such as a younger Gordon Brown) to call for in the days of ‘Scotland United', but not something which will reflect the people's will. A separate vote on greater powers pre-independence vote would be more helpful.

Then there is who calls the vote - the Scottish Parliament or the UK Government - which matters greatly, and the wider political context of the vote. One thing we can be sure of is - and it is a big if - that if the Scots are sure of their minds for or against independence then we only need to have one vote.

This will be a maturing moment in the history of Scotland as a nation and society and one we really need to get right and for it to be seen by all as fair.

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