The Scottish constitutional question has shot to the top of the UK political agenda. The manoeuvrings of the UK Government and Scottish Government on the Scottish independence issue have consistently led the UK news bulletins this week, even giving the high impact HS2 development go-ahead a run for its money.
We are now entering uncharted waters. Scotland and the UK are now changing and things will never be the same again. Whatever the outcome of the stand-off between the two governments and the eventual referendum, Scottish independence has become mainstream and a serious, viable option.
Alex Salmond announced on ‘Sky News’ that the Scottish Government had decided to hold its independence referendum in autumn 2014. The timing was planned to cause maximum embarrassment to Michael Moore, Secretary of State for Scotland, who at the same moment was addressing the House of Commons on the UK Government’s view of independence. Salmond said autumn 2014 ‘was the date that allows everything to be put in a proper manner on the most important decision in Scotland for 300 years. That date will allow the Scottish people to hear all the arguments.’
He went on:
This has to be a referendum which is built in Scotland, which is made in Scotland and goes through the Scottish Parliament. If the Westminster Government sticks to that, we won't have too many fights about it. (1)
The UK Government set out its thinking in a consultative paper, ‘Scotland’s Constitutional Future’ (2) which stated that the Scottish Parliament has no power to hold a referendum, proposed to give the Parliament the power to hold a Yes/No vote, and excluded any ‘sunset clause’ as had been mooted only days previously, in an attempt to flush the SNP out to hold a vote within a certain timeframe.
UK ministers such as Moore are invoking the perils of ‘uncertainty’ and the need for a timescale which brings about a vote ‘sooner rather than later’, and yet according to ‘The Ecconomist’:
… what really exercises the government is three different things: the legality of the vote; securing a clear, binary question and ensuring that the referendum campaign is fairly- and transparently-funded and overseen by an independent electoral commission. (3)
The crucial dimension it argued is not the timescale, which is negotiable, but having a Yes/No vote.
Those who support the UK Government cite the legal advice compatible with their opinions such as that offered by Aidan O’Neill (4) and Adam Tomkins (5). The Scottish Government has an array of experts who argue their case, with Stephen Tierney stating that for the UK Government to ignore even an ‘advisory’ vote would ‘carry its own risk’ (6), while Salmond cites the evidence of Himsworth and O’Neill (7). Yet, rather revealingly, while the UK Government cites its legal advice it has not actually published it, redolent of that previous great British moment of maladministration, manipulation and deception, Iraq. That’s what you would expect, but then the Scottish Government has not published its legal advice either.
Politics are going to be more important than legal interpretations. Some UK politicians find it hard to understand that their legal case against independence and attempts to portray Salmond and his allies as ‘outlaw bandits’ doesn’t carry much weight. They seem to be living in a bubble concerning how Westminster and a Tory-led government are seen in Scotland.
They also seem to have forgotten their own wobbles. The UK Government is trying to play an absolutist game, but only on a very narrow, precise front. They retreated in the last few days on a ‘sunset clause’ and have previously equivocated on whether the Scottish Government could hold an independence vote. This ambiguity has affected how people see their stance.
In the world of British constitutionalism in most occasions politics and legitimacy trumps narrow legal interpretations. Any UK politician investing their hopes in holding off Salmond through constitutionalism and the power of the Supreme Court is either naïve or desperate, or both.
The language of the pro and anti-independence forces reveal much. Nicola Sturgeon, Deputy First Minister has stated that Cameron’s plan could backfire because the ‘more a Tory Government tries to interfere’ the ‘greater the support for independence will be’ (8). Alex Salmond and Michael Moore both on a day filled with occasion tried to sound conciliatory, Salmond talking of the need for ‘commonsense’ and Moore of a vote that was ‘fair’. Margaret Curran, Shadow Scottish Secretary for State commented that SNP delay and prevarication was inexplicable given it was ‘a separatist party whose lifetime cause is separatism’ (9).
The above shows two of the great mobilising stories of Scotland: the anti-Tory consensus invoked by the SNP, and Labour’s belief that ‘separatism’ is something distinct, different and damaging compared to devolution.
Another version of Scotland is the Labour story of Britain eulogised by Brian Fitzpatrick in ‘The Guardian’:
Our support for Britain owes nothing to a past bedecked in union flags, the bemoaning of a lost empire or the echoes of ‘Hang Mandela’. We view the Britain we cherish as a multicultural, tolerant and democratic place, and we celebrate shared achievements such as the NHS and the minimum wage, and look forward to our country's continuing tolerance and diversity. (10)
Fitzpatrick was Donald Dewar’s Head of Policy in the first year of the Scottish Parliament and briefly a Labour MSP. This Ladybird account of Britain, straight from the mindset of Gordon Brown, goes down well in Labour circles, but has little traction in Scotland. As in every Scottish Parliament election, Labour will go negative in the long referendum campaign when they realise this message has little effect. The coalition government now talks about the union, in a direct lift from Brownite hyberbole, calling it ‘the most successful partnership in history’ (11); there is a hint of desperation in this high sounding rhetoric.
The political conflict of the last few months has been like a high-stakes political poker game or multi-dimensional chess match (12). Taking these metaphors further, the SNP have got a potentially decisive step ahead of the UK Government, as Hamish Macdonell says:
What some in the UK Government seem to have forgotten is that, because this is such an important issue for the Scottish Nationalists, they have analysed and prepared for every twist and turn of the debate. In what is now a game of political chess, Mr Salmond has correctly forecast his opponent’s moves before they have even decided what they are going to do. (13)
If the SNP have guessed Cameron’s moves, they sit in a powerful position. The Scottish Nationalists plan to go ahead with their vote in autumn 2014, and invite the UK Government to strike it down or declare it illegal. The SNP have figured that if Cameron dares to do this he will pay a high political price, being seen to deny the democratic will of the Scottish people. This could produce a political reaction which would make the poll tax and ‘Doomsday Scenario’ of the Thatcher era seem like peace and harmony.
It is not of course as completely simple as that no matter how some portray it. The SNP administration while supporting independence does not want to ask a Yes/No simple question, but wants the option of ‘devo max’ or fiscal autonomy on the ballot paper. Nationalist thinking is that independence will lose, inviting the allegation that Salmond is ‘wriggling’ and ‘frit’ from opponents (14), while the SNP cite that a significant section of Scotland supports this; that’s true but institutionally it is support which has been carefully orchestrated by the Nats and drawing on the usual suspects in the voluntary sector (SCVO), trade unions (STUC) and business. And for all the undoubted cack-handedness of the UK Government, and their overplay of their hand, they do have a right to express a position on Scotland.
All of this isn’t about some old-fashioned Scottish nationalism, the 700th anniversary and memory of Bannockburn and various ancient wrongs, or an essentialist Scotland. Instead, it is about a modern nation wanting to express its democracy, take charge of its collective future, and show faith more in its own home grown institutions, rather than the bastardised, fossilised remains of the British state. It is rather apt that this has all come to pass as we approach the anniversary of someone in Scotland who contributed to all of this coming to pass, and is the epitome of a quiet, unassuming revolutionary, Tom Nairn, who turns 80 in June this year.
This Scottish moment has a number of midwives and partners, the SNP, the wider nationalist movement in Scottish society, voters at key elections, Labour at crucial parts in its history for good and bad. But in this unprecedented situation, we should acknowledge people like Tom and all the thousands of unassuming revolutionaries who refused to give up on Scotland and who refused to take ‘no’ for an answer.
1. Severin Carrell and Nicholas Watt, ‘Salmond sets poll date – and defies London: SNP plans Scottish independence referendum for autumn 2014’, The Guardian, January 11th 2012, http://www.guardian.co.uk/politics/2012/jan/10/scottish-independence-referendum-autumn-2014
2. Scotland’s Constitutional Future: A consultation on facilitating a legal, fair and decisive referendum on whether Scotland should leave the United Kingdom, CM 8203, The Stationery Office, 2012.
3. Bagehot’s Notebook, David Cameron tells Scottish nationalists to put up or shut up on independence, The Economist, January 9th 2012, http://www.economist.com/blogs/bagehot/2012/01/independence-debate-scotland
4. Aidan O’Neill, ‘We need to talk about the referendum’, UKSC, November 4th 2011, http://ukscblog.com/we-need-to-talk-about-the-referendum
5. The Scotsman Editorial, ‘Parliaments should agree on a fair vote for Scotland’, The Scotsman, November 11th 2011, http://www.scotsman.com/lifestyle/arts-blog/leader_parliaments_should_agree_on_a_fair_vote_for_scotland_1_1959451
6. BBC News, January 11th 2012.
7. Newsnight Scotland, January 10th 2012; Chris Himsworth and Christine O’Neill, Scottish Constitutional Practice: Law and Practice, Bloomsbury 2nd edn. 2009.
8. The Economist, January 9th 2012.
9. Newsnight Scotland, January 10th 2012.
10. The Guardian Letters, ‘Scottish independence: the thorn and the thistle’, The Guardian, January 10th 2012, http://www.guardian.co.uk/politics/2012/jan/09/scottish-independence-thorn-and-thistle
11. Michael Moore, Newsnight Scotland, January 10th 2012.
12. Gerry Hassan, ‘How to Play Political Poker: The High Stakes of the Independence Debate, The Scotsman, December 31st 2011, http://www.gerryhassan.com/uncategorized/how-to-play-political-poker-the-high-stakes-of-the-independence-debate/
13. Hamish Macdonell, ‘Salmond’s running rings around Cameron’, Spectator Coffee House, January 10th 2012, http://www.spectator.co.uk/coffeehouse/7565553/salmonds-running-rings-around-cameron.thtml
14. BBC Radio 4, Today Programme, January 11th 2012.