Monday 23 January 2012

My response to the UK Scottish Referendum Consultation

I have responded to the UK Government's consultation on the Scottish Independence Referendum and enclose my comments verbatim below. I would strongly encourage all, regardless of their political persuasion, to make their views known so that we get the most considered and appropriate result. Constitutional law is not something to be treated as a political weapon (by either side of this debate) and legal clarity is imperative.

To whom it concerns,

Please find attached the document containing my response to the consultation document published by the UK Government in respect of the delivery of a legal and impartial referendum on Scotland's constitutional future. I trust that the UK Government is content to give considerable ground on its assumed position, which I consider to be untenable on a number of grounds into which I elaborate through my responses.

Kind Regards,

Graeme Cowie

Q 1: What are your views on using the order making power provided in the Scotland Act 1998 to allow the Scottish Parliament to legislate for a legal referendum in an Act of the Scottish Parliament?

A: This is probably the most appropriate cause of action, given the s30 procedure requires proper consultation with the Scottish Parliament itself. The alternative would be to make for such a provision as an amendment to the current Scotland Bill, which has its merits in certain respects which I shall elaborate on in question 3 and also in 4-6.

Q 2: What are your views on the UK Parliament legislating to deliver a referendum on independence?

A: Clearly it has the legal power to do so (unlike the Scottish Parliament at present), but on a principled constitutional level and on a basic political level this would be incredibly stupid. Not only would it lend itself to allegations that Westminster was “dictating” the terms of a referendum to an SNP administration with a clear political mandate on the matter, but it would also allow English, Welsh and Northern Irish MPs a say on the formulation of the questions. This is a matter for Scotland and its representatives alone.

Q 3: What are your views on whether the Scotland Bill should be used either to:
i) give the Scottish Parliament the power to legislate for a referendum; or
ii) directly deliver a referendum?

A: As I explained in response to Q 1, there is an argument for doing the first of these rather than issuing a s30 order, which I will elaborate upon later. As for the second, I emphatically reject it for the reasons highlighted in my response to Q 2.

Q 4: What are your views on the oversight arrangements for a referendum on Scottish independence?

A: In general terms, I agree that there should be constitutional consistency of matters of franchise and performance of electoral procedure by the existing bodies. However, I would draw attention to one of the recommendations from the Calman Commission, a provision supported by all of the parties with representation in the Scottish Parliament, that matters such as the franchise and the arrangements for local and Scottish Parliamentary elections should be devolved in the Scotland Bill down to Holyrood. The UK Government's decision not to implement this proposal through the primary legislation should be revisited. It logically follows that if Holyrood is to be allowed to set the franchise conditions for those elections, that it should control similar functions for any referendum which only applies to Scotland.

Q 5: Do you think the Electoral Commission should have a role in overseeing a referendum on Scottish independence?

A: Yes I believe that the Electoral Commission is the appropriate body for oversight of the referendum. I do not believe a Referendum Commission set up separately (regardless whether it is set-up by Holyrood or Westminster) is either necessary or expedient. The EC has shown itself perfectly capable of carrying out both UK-wide and devolved referendum oversight without any questions of impartiality.

Q 6: What are your views on which people should be entitled to vote in a Scottish independence referendum?

A: In general terms, those who should be allowed to vote should be the same as those who are eligible to vote in the Scottish Parliamentary elections. I notice that this question omits to respond to a key area of contention, which relates to the age at which people should be allowed to vote. Without entering into the politics (e.g. accusations of opportunism on one side, and of inconsistency by some on the other) my response to this should be understood in the context of my response to Q 4. The franchise arrangements for Scotland-only elections and referenda should be a matter for the Scottish Parliament to decide. On the principle, I believe they should be allowed to lower the voting age to 16 should they so desire, but it should be done for all Scottish elections through an Act of Scottish Parliament at some point within the next twelve months once the Scotland Bill (with my recommended amendments) passes into law.

Q 7: What are your views on the timing of a referendum?

A: This should be a matter principally for the Scottish Parliament. Contrary to the suggestion in the document, there should be no “sunset clause” of any kind in the event the power is extended either through a s30 order or through the Scotland Bill. The SNP have indicated they wish to hold it in the Autumn of 2014, which is a date completely within the scope of their manifesto pledge and they should be entitled to move forward on that basis.

A reasonable restriction may be that the power may only be invoked once in X number of years (to prevent perpetual referendums on the same issue) but as a matter of expediency, that matter should be agreed upon in advance with the Scottish Government. I note that Alex Salmond has said that this issue is very much a “once in a generation” issue and a mandatory interval of between 10-20 years between referendums on Scottish independence would make sense.

Q 8: What are your views on the question or questions to be asked in a referendum?

A: There should be two questions on the ballot. The first should be a question about whether or not Scotland should become an independent sovereign state. The second should read, approximately, “notwithstanding the response given to the first question, should the Scottish Parliament have (e.g.) full taxation powers and extended competence in several other presently reserved areas.” In the event that the first question receives more than 50% of the popular vote the second question should be completely disregarded.

I do not share the view of the UK Government that a second question somehow “complicates” matters, though the ordering and wording of the questions should be very carefully crafted so as to leave absolutely no doubt that, notwithstanding the response to any “devo-max”-esque question, a majority vote for independence will be honoured. The idea that the people of Scotland can't understand a very basic premise of a two-question referendum on connected but alternative propositions is frankly rather insulting. There are only likely to be a maximum of three campaigns anyway (a Yes-Yes, a No-No, and a “Yes to more powers, No to independence”). The “Yes to independence, No to more powers” group would be so ridiculously tiny and arguing almost as obscure a proposition as someone in 1997 saying “there should not be a Scottish Parliament but it should have tax powers”. There are genuine areas in need of clarity here, but the UK Government must desist from looking for obfuscation when it's not actually there.

Q 9: What are your views on the draft section 30 order?

A: The Order in its current form is manifestly inappropriate in light of the various issues I have elaborated upon above. The proposed Schedule 5A has a number of problems which I shall list:

Para 2: It is not necessary to require that a referendum not be held on the same day as other elections. Whilst that may be expedient in and of itself to hold a poll on such an issue outside of other election cycles it is inappropriate to insist on such a provision, especially given that the UK Government only as far back as May 2011 held a referendum on the Alternative Vote at the same time as Scottish Parliamentary elections AND English local council elections. Given Scotland's rather negative experience with multiple polling in 2007 I doubt the Scottish Parliament would seek to hold simultaneous polls in any case.

Para 3: This is a blank sunset clause. There should be no sunset clause on the power to hold a referendum. As I explained earlier a reasonable time provision would be to impose a mandatory waiting time between polls on the subject matter of between 10 and 20 years.

Para 4: This provision seeks to prevent a second question being present on any ballot. For the reasons I gave earlier, this provision should be removed.

Para 5: This limits the franchise to those entitled to vote for “the Parliament”. In the interests of clarity I would insert the word “Scottish”. For the reasons I gave above this may yet involve the lowering of the franchise if you (wisely) reconsider Calman's proposal about devolving the essential components of Scottish Parliamentary and local council elections to Holyrood for consideration.

Para 6: This is a connected issue to Para 5. The thrust of this provision is fine, as long as the relevant derogations are made to allow the Scottish Parliament to make the changes it sees fit in the ordinary course of business rather than simultaneously with the Referendum Bill.


  1. I do disagree with you on the "who should vote" issue. While we are a "United Kingdom" people who would normally have citizen rights were Scotland independent can come and go as they please as if Scotland were just another part of the country, which it is. Even I, born near Hull but with two definitely Scottish born parents would normally be entitled to citizenship of such an independent country. I and all the other "Scottish ex-pats" should have a say, if not everyone in the rest of the union as well.

    1. You miss the point entirely. The vote is based on RESIDENCY not NATIONALITY or CITIZENSHIP.

    2. Hear hear. To suggest otherwise is frankly a form of racism. This is nothing to do with blood for God's sake and the corollary would have to be that anyone not born in Scotland would not be entitled to vote - a grotesque result. Anyone who has remained on the electoral roll in Scotland will be allowed a vote. Anyone who hasn't has surely shown that they view themselves as domiciled elsewhere.

      One of the funniest suggestions yet came from (of course - and I'll bet there'll be more from him) George Foulkes. He argued (on air - I heard it) that Baroness Taylor should get a vote. Because she supports Motherwell. Here's her biography:

      Baroness Taylor of Bolton
      Party: Labour
      Address as: Baroness Taylor
      Contact details:Westminster
      House of Lords, London, SW1A 0PW
      Tel: 020 7219 5183

      Electoral history
      Contested Bolton West February 1974 general election. MP (Labour) for Bolton West October 1974-83. Contested Bolton North East 1983 general election. MP (Labour) for Dewsbury 1987-2005

      Parliamentary career
      PPS to Fred Mulley: as Secretary of State for Education and Science 1975-76, as Secretary of State for Defence 1976-77; Government Whip 1977-79; Opposition Frontbench Spokesperson for: Education 1979-81, Housing 1981-83, Home Office 1987-88, Environment 1988-92; Shadow Secretary of State for Education 1992-94; Shadow Chancellor of the Duchy of Lancaster 1994-95; Shadow Leader of the House 1994-97: Member House of Commons Commission 1994-98, President of the Council and Leader of the House of Commons 1997-98; Member Public Accounts Commission 1997-98; Government Chief Whip 1998-2001

      Lords career
      Parliamentary Under-Secretary of State and Government Spokesperson: Ministry of Defence 2007-10 (Defence Equipment and Support 2007-08, International Defence and Security 2008-10), Foreign and Commonwealth Office 2009-10

      Select committees
      Chair Intelligence and Security Committee 2001-05

      Councils, public bodies
      Holmfirth UDC 1972-74

      Political interests
      Education, Home Office, intelligence and security, defence

      Name, style and title
      Raised to the peerage as Baroness Taylor of Bolton, of Bolton in the County of Greater Manchester 2005

      Register of Interests
      2: Remunerated employment, office, profession etc.
      Advisory Board Member, Thales Holdings UK plc (information systems for defence and security, aerospace and transportation)

      8: Gifts, benefits and hospitality
      Various Football Association invitations to international and some domestic football matches, and associated hospitality

      Board Room hospitality received from Bolton Wanderers Football Club, when attending football matches

      A lot of Bolton and the defence industry but not much Motherwell. If someone could give a single reason why Ann Taylor should be allowed a vote, I'd be interested.

    3. Definitely NOT if you are not resident in Scotland

  2. I think the right to vote should be restricted to UK citizens resident in Scotland. The idea that citizens of other EU countries should be able to vote on the break up of the UK is frankly grotesque. If I was living/working in another EU country I would not expect or even want to vote on the break up of that country ... it is none of my business.

  3. The original author mentioned obfuscation by the UK Government, but the response by the Scottish Government (aka SNP) and their latest 'consultation' is greatly adding to this.

    Why not keep everything as simple and straightforward as possible;
    - 1 question (In/Out of the UK)
    - Supervised by existing body (Electoral Commission)
    - Same franchise as the 2011 Scottish Parliamentary election (no meddling with changes to voting age)
    - Election to be held on conventional day of the week (no meddling of shifting polling to a Saturday)
    - Conventional polling stations & postal votes (no meddling with voting at supermarkets etc.)

    By adopting such a basic approach, there is no need to have any further consultation (the SNP have had 3 already since 2007) and therefore the referendum can be held within the next 12 months. At the end of 2009, the SNP said they planned to hold the referendum on St Andrew's Day 2010 but never even attempted to do so. So if they could hold it within 1 year then, why does if need more than 2 1/2 years now ?


    1. Yeah right, rush rush rush, before any more work can be done to show the torrents of Bull@#it that has been fed to us for years.

  4. I think the right to vote should be restricted to UK citizens resident in Scotland. Thanks sharing..