The Franchise after Brexit - Questions for Holyrood

Context

Yesterday evening a discussion emerged on what I suppose we should call "Scottish Twitter" about the extent to which non-British EU citizens might influence the result of any second referendum on Scottish independence. There are about 181k such citizens currently in Scotland according to the Scottish Parliamentary Information Centre (SPICe)'s data. In the last referendum, it was widely considered that this group leaned towards No, motivated in part by the fact that leaving the UK could have interrupted, even if only temporarily, Scotland's place in the European Union and would have affected the legal basis on which many of those people had come to settle in Scotland.

A little over two years on, and a great deal has changed. Scotland voted for the UK to remain in the EU, but the UK as a whole did not. We still do not have clarity as to what impact this will have on the rights of EU citizens that live here, or indeed those that had been considering moving to the UK in the future.

Neil Lovatt, a member of the Advisory Board of the political pressure group "Scotland in Union", questioned the relevance of the views of EU citizens in any future independence referendum, since "post Brexit they certainly won't" "be getting a vote".

I do not wish to delve into the politics of this statement, though my views on the franchise are, I think, fairly clear. I take a very permissive view of who should be allowed to vote, and think it a mistake to restrict it on the basis of citizenship. I take the view that any adult ordinarily resident in a relevant territory should be allowed to participate in the political process by voting in elections or referendums.

I do wish, however, to clear-up the legal terrain that underpins how the franchise works. I have written before about the franchise as it relates to prisoners, and more broadly about who gets to decide what the franchise is. It is very easy to lose sight of why the UK lets certain people vote in certain elections but not others.

General Aspects of the Right to Vote in the UK

The UK Parliament has been responsible for setting the general terms of the franchise in the United Kingdom. The first thing to recognise is that the UK does not limit the franchise only to British citizens. Voting rights exist for "qualifying Commonwealth citizens" (which includes but is not restricted to, British citizens) and citizens of the Republic of Ireland. A "qualifying" Commonwealth citizen is one who either does not require leave to remain, or who has leave to remain, in the United Kingdom. This allows nationals of over fifty sovereign states, and those holding nationality connected either with British Overseas Territories or Crown Dependencies to participate in all UK elections. The UK therefore takes, in many respects, a more permissive stance on citizenship than other countries do. The right to vote in Canadian federal elections, for instance, is restricted exclusively to Canadian citizens.

The EU dimension

However, the issue is given an additional layer of complexity by virtue of our membership of the European Union. Under Article 22 TEU:

"Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State"

This is supplemented by Directive 94/80/EC, which regulates and imposes some limits upon this general obligation.

It is worth pointing out that this obligation only applies to "municipal elections". Nevertheless the UK has chosen to extend the right to vote in devolved elections, to the Holyrood, Senned and Stormont legislative bodies, in addition to those relating to local authorities. This is because the franchise for those bodies was originally determined with direct reference to the entitlement to vote in local authority elections.

Implications for Scotland's elections

The result of this is that EU citizens living in Scotland have the right to vote in Holyrood elections. Since the passage of the Scotland Act 2016, the Scottish Parliament has gained legislative competence over its franchise and those of Scottish local authority elections. It could, if it wishes, choose to extend or restrict the right to vote in a way that departs from the prior position under UK electoral law. It has already done this with respect to the minimum age someone must attain before they can vote, cutting it from 18 to 16 ahead of the most recent set of Scottish Parliamentary elections. This power is constrained, however, by the imposition of a new "super-majority" requirement. To modify the franchise for Parliamentary elections, at least two-thirds of the whole Parliament must vote in favour of it.

When the UK leaves the European Union, the requirement to implement the EU Treaty and Directive provisions in relation to the right to vote will likely elapse (unless the withdrawal agreement under Article 50 stipulates otherwise). This would potentially render the words "relevant citizen of the Union", which are inserted into the Representation of the People Act 1983, ineffective for the purposes of the franchise, since the Treaties would no longer apply to the UK.

This does not prevent the Scottish Parliament, however, from implementing legislation to preserve those rights. It would be open to them to pass a law including EU citizens in the franchise again, or indeed to enfranchise any other group, whether or not they were citizens of a particular country.

What about referendums?

Where things get even further complicated still is in the area of referendums. The UK does not have a prior set of restrictions on who can vote in a referendum. Instead, the legislation that provides for a referendum must itself define who can participate.

In the first independence referendum, the question who may vote was a matter for the Scottish Parliament. Indeed, specific legislation was introduced during that referendum campaign to make provision to allow for the registration of younger electors so they would be on the register in time to vote if they were only 16 or 17 on polling day. At that time the electoral roll did not include some of these people because they would not have been 18 at the next relevant election, and that was the prevailing minimum age in UK law to vote.

Even if it is the case that under EU law Scotland is required to allow EU citizens to vote in Holyrood elections (and that is doubtful as they are not, incontestably, "municipal" elections) it is plainly not the case that it is required that they are allowed to vote in referendums. EU law stipulates no conditions there. Nevertheless, the Scottish Parliament took the position that no one who was allowed to vote in a Holyrood election should be excluded from voting in the independence referendum. They, quite simply, chose to set the franchise that way. EU citizens were therefore permitted to vote.

Equally, however, in the EU referendum, the United Kingdom Parliament took the position that the franchise should be the same as it was for UK General Elections. It therefore included Commonwealth citizens, but excluded a freestanding right to vote for those who were EU citizens.

So what does it matter in a future referendum?

The issue at hand is what would the situation be in a future independence referendum. If the UK leaves the European Union, the default position is likely to be that EU citizens will lose their Treaty-derived right to vote in any UK elections.

There is a related issue, however. The Scottish Parliament does not clearly have the legislative competence to hold an independence referendum without the UK Parliament granting it such a power. Last time, that power was granted without any legal conditions imposed on what the franchise would be. The Edinburgh Agreement proceeded on the basis of political consensus that, at least, the Scottish Parliament's franchise should be used as the starting point and that the Scottish Parliament should decide after its consultation whether and to what extent it should be expanded on the grounds of age. It should be pointed out, though, that in 2012, the Scottish Parliament's franchise was set by the UK Parliament so letting the Scottish Parliament set the franchise for the referendum at all was an innovation and constrained by a set of constitutional norms they did not yet control. This would not be the case in a second referendum, where the Scottish Parliament controls its own franchise.

I think it is reasonable to expect that the first referendum should set a precedent: the franchise in an independence referendum is a matter for the Scottish Parliament, even more so than it was in 2012-13, since its powers in this area more generally have grown, rather than shrunk in recent years. There should, therefore, be no legal impediment to the enfranchisement of EU nationals or indeed anyone else, should a second independence referendum come along.

However, it is possible that the UK Government might, this time around, demand that conditions should be imposed on any re-grant of the power to hold a referendum. The possibility of conditions being imposed this time in such a way as they were not last time has been raised by David Torrance in his article in The Herald today. He takes the view that the UK Government might insist upon restrictions both on the timing of a referendum and possibly even the question asked. Last time there was a time limit of about two years, within which there was total discretion to hold or not hold the referendum, and the question was set by the Scottish Parliament in consultation with the Electoral Commission. For my own part I am ambivalent about the virtues of anything that could be seen as a political fix-up, on the part of either side in these areas.

These conditions might, however, include constraints on the franchise. This is therefore a potential bone of contention. If HM Government were to insist on excluding EU citizens from the referendum despite the Scottish Parliament having potentially protected their ordinary voting rights, the question of who has the right to decide the franchise could very easily become the obstacle to agreeing a section 30 order.

Conclusion

I think Neil Lovatt is wrong when he says that, post Brexit, EU nationals "certainly won't" have voting rights in Scotland, let alone in relation to a referendum. Ultimately these are choices that the Scottish Parliament has, by the precedent, been entitled to make. If the UK Government wishes to create problems for itself by insisting on constraints that it did not insist upon last time, that would likely be very politically unwise indeed.

Leaving the EU does, however, re-open the question of voting rights generally in the United Kingdom. As part of the emerging conflict of political cultures, the franchise is a possible avenue where this "open v closed" society dynamic could come into life. It will say a lot about our country whether this change leads us to include or exclude people from our political processes. One might even say this is the real mark of who exactly it is that is "Taking Back Control".

Howling at the Moon? Yep.

On Saturday, the Scottish Liberal Democrats confirmed themselves as unconditional Unionists.

This is not liberal.

The Parliamentary Party turned on a motion that was itself an attempt to heal the divide between members of the party for whom the result of the EU referendum will likely compel the choice between two unpalatables. They showed a total unwillingness to listen, to acknowledge that the Unionism of far too many, especially many in the Scottish Tories, is unthinking, tribal and contrary to the interests of either people in Scotland or other parts of that Union.

They falsely accused the movers of the motion of pushing them to break a pledge they made to the electorate in May. The movers of the motion deliberately framed the motion in such a way so as not to put them in that position. Whatever your view of the merits of either the manifesto commitment against supporting a referendum in this Parliament, or the donor-seeking Scotland in Union pledge overtly to oppose any such referendum, we were very clear we would not and could not ask them to go back on it.

Yet the leadership's inner-circle lined up one after another, frankly, to tell barefaced lies to the Conference hall. They smeared those bringing the motion as unwitting nationalist conduits, for having the audacity simply to ask that they do two things. Those two requests were possibly the most painfully reasonable one could hope for a liberal and democratic party to agree to.

First, we asked them to talk to the Scottish Government, and to go to the table without preconditions and demands. We wanted them to work with their group of experts to identify possible ways of protecting Scotland's interests in the EU. Rule nothing in; but rule nothing out, until the lie of the landscape is clearer.

Their response? To say that the Muscatelli Group was a PR exercise and a ruse for independence. Never mind that a longstanding and highly respected Labour MEP sits on this group. Never mind that Sturgeon has been back-peddling on the imminence of a referendum ever since June, and has directed her focus towards single market and free movement protection since. To expect this group to have done much before Art 50 has even been invoked is disingenuous, and not even to work with them is narrow-minded.

Secondly, we asked them to bring their proposals, once the terms of a Brexit deal are known, before Conference, so that the membership could freely and openly discuss the best way forward for Scotland. The amendment they voted for removed that commitment. The leadership therefore has a free hand to ignore the concerns of the membership about whether, and to what extent, leaving the European Union alters Scotland's interests in the British Union.

Several times those of us with concerns about the party's increasingly default hostility to anyone who didn't toe the line on the constitutional question have reached out, to try to reach a compromise that lets us move forward as one liberal voice. Time and time again those requests fell on deaf ears. There is now barely any room whatsoever for even critical unionists in the Scottish Liberal Democrats. The gravity of the party has shifted, and it amounts, in essence, to a slightly more cosmopolitan Conservative and Unionist party that doesn't like Iain Duncan Smith.

Some people yesterday said that it was a mark of strength that the Lib Dems allow debates like this. In truth it was nothing of the sort. Instead of having respect for the perspective of members of their own party who disagreed with them, the Parliamentary Party treated them like pests to swatted. They opposed a motion that would have very specifically put the future positioning of this party in its membership's hands.

That membership would, in all probability, have, when the time came, reaffirmed the party's opposition to Scottish independence and may well even have extended its opposition to another referendum, even beyond the 2016-21 Holyrood Parliamentary session. But what would have mattered is that the leadership would have been obliged to justify their stance and ask the membership to back them, when all the information was laid bare and made available to the membership and to the rest of Scotland as a whole.

Put simply, they don't trust the members of the Party, and they don't trust the Scottish people.

A political party for whom both of those things are true might not become extinct, but it will also never be relevant in Scottish politics. Taking two mainland constituency seats to replace two mainland list seats isn't "winning again"; it's palliative care that writes off people who are liberal by politics to court tactical Tories.

And make no mistake, in 2021 and 2026 the Tories will come gunning for those seats. They have the money and after 2016, they have the ground operation. And when that happens, the Lib Dems really are in trouble.

We can't have both

Sometimes the Scottish Liberal Democrats needs a bucket of ice water dropped on its head.

There was a members meeting on Sunday in Edinburgh in which we were to discuss the way forward. Chatham House rules mean I am restricted in what I can say but I think it's fair for me to outline the broad nature of the challenges that face the party. It is to Willie Rennie's credit that the meeting was called at all, but there was a real feeling among many at that meeting that the party just isn't facing up to the reality of the new constitutional situation that we occupy.

There were arguments that we should continue to fight for the UK to remain in the EU. Effusive praise was lavished on Tim Farron for taking on the mantle of the 48. Surely to goodness followers of Scottish politics of all places should feel uncomfortable with the imagery of that. But the strategy, whilst a good rallying call for the party and its values in England, is a total waste of time in terms of getting something done. Tim Farron is not going to be the next Prime Minister and even if he is he is not going to be able to use a General Election mandate just to "cancel" Brexit without riots in the streets of Northern English cities. The people have spoken.

Not wanting to choose between two uncertainties is a natural human instinct. But you don't always get to decide what decisions you're asked to make. And Scottish Liberals are closer than ever to being forced to choose between a British Union and a European one.

We have to be ready for that eventuality. Putting off deciding is cowardice. And we absolutely have to back a Scottish independence referendum if, and this is the key point, all avenues to keep Scotland in the EU are exhausted.

Willie was very keen after Spring conference to insist that the party had said two contradictory things when it asked to lift a moratorium on fracking while endorsing tougher carbon limits. So he clearly knows that politics is sometimes about making decisions between things that turn out to be incompatible.

A sizeable proportion of the people at Sunday's meeting tried to make that clear: unless the EU comes up with some sort of "reverse Greenland" (almost certainly legally and practically impossible because of both the politics of other member states and because it would rip apart the British single market) all that is left is for Scots to choose between Unions.

That isn't turning to Scottish nationalism or buying into a trap. That's just the choice we have. It is the competing of two different internationalisms, which have more in common with each other than the nascent English nationalism that put us into this sorry mess without so much as a care in the world for how it would affect Scotland.

The unavoidable reality is that we are approaching a situation where the mandate Scotland gave on Thursday is incompatible with the mandate it gave in September 2014 and the mandate England and Wales gave on Thursday. The core premises upon which that 2014 mandate was undertaken are now void. Hundreds of thousands of the 2 million people who vote No were materially influenced by the fact that a No vote would secure Scotland's place in the EU. The EU is constitutionally significant in a way literally not one single other international organisation is. It lives and breathes through our laws, our politics, our constitutional politics, and the nature of what it means for Britain to be a common endeavour. The No vote was not a vote to endorse the British project as it existed in 1970, or even 1707. It was to endorse it, with its fundamentals, as at 2014.

The only solution, the only way to reconcile those mandates, if staying in the UK means Scotland is not in the EU, is another independence referendum.

I know it's not reasonable to expect people who feel a close emotional attachment to the UK to campaign against it. But to be against even making the choice is an even more terrible stance for a democratic and European party to take. Opposing a referendum in any circumstances makes it absolutely certain that we are anti-Europe unless the UK does a volte-face. That is simply unacceptable to me and to hundreds of other members and I suspect thousands of supporters.

The Parliamentary party are terrified they'll lose trust in the electorate if they break a manifesto promise not to support another referendum. They ignore the fact that the vast majority of the electorate didn't vote for them anyway. In times of constitutional crisis, all bets are off.

They are taking the wrong lesson from the tuition fees debacle. The crime was not breaking the pledge; it was making a pledge that in the circumstances it was designed to be relevant for was totally unsustainable. It's time we level with the public that we made an error on May. Because we did.

At the very least the Scottish Lib Dems have to support another independence referendum. My judgment now is that liberalism is best served by Scotland seeking an undertaking for accelerated admission as an independent member into the EU, or even in the worst case scenario applying as a new member. I understand that on that aspect many liberals will vigorously disagree, and understandably. That is why we need a Special Conference, both to establish whether and what the official party position should be in a future referendum, and to make it clear in any motion that members and Parliamentarians are free to campaign as their conscience dictates.

To oppose the choice is itself to choose however. And it's the wrong choice. At the very least Scotland needs the chance to decide which internationalism it prioritises. And if that is internationalism with the other nations of the British Isles so be it.

Those turning to independence were implicitly accused at points that they were showing a lack of imagination, buying into Scottish nationalist narratives. Frankly I think the opposite is true: holding steadfast to the two Unions position isn't a display of imagination but of delusion. Imagination needs to have practical import and we are the only ones at the moment willing to imagine where this crisis is actually heading.

I didn't say it at the meeting because I spoke early in the day and I wanted to be constructive, but if this party fights against a second referendum even when that referendum is in the interest of liberalism and Scotland, I am leaving it. I've given it several last chances to show courage on the constitution, and it has disappointed me time and time again.

To see ourselves as broadcasts see us

A vexillological ménage à trois

Okay, so the European Parliament elections don't exactly have a track record of engaging the public in enthusiastic debate. The turnout in the UK was 34%. In Scotland it was even worse: 28.5%. They are often seen as an opportunity for a protest vote or to make a statement about domestic issues. It provides an opportunity for those outside of mainstream politics to shout rather loudly and incoherently without any semblance of actual accountability, to energise the already malcontent. That leads to the election of, at times, questionable and populist (such as UKIP), and in worse cases, overtly racist, representatives (the BNP).

The failure of mainstream political parties to engage the public as a whole with European politics is not a failure which is unique to the UK. It is, nevertheless hugely regrettable, considering the importance the EU has in international relations and on our domestic affairs. The EU is the forum through which we establish complex but economically vital relationships not just within Europe but beyond, with some of the largest and some of the fastest growing export markets in the world. It is the forum through which we bring about unprecedented levels of multilateral cooperation on criminal justice, the environment and globalising industries like financial services. As a coherent whole, it has both the economic and political clout to ensure the influence of the interests of European countries in a world where the big decisions are taken by the US, China, Russia and increasingly India and Brazil. It provides an important counter-balance to US dominance of western interests and without it, European influence would surely suffer.

Alas, the consequence of people failing to make the "positive case" for the EU has meant that our public discourse about it is overwhelmingly negative. A combination of misinformation, apathy and cautiousness on the part of its advocates has created a narrative and a set of terms for debate that make it difficult for mainstream parties to support the EU in a concrete and public way. The EU is always discussed in the context of reforming our relationship with it (usually code for taking powers back) or whether we should be part of it at all. Notwithstanding Tony Blair's proud EU credentials, Labour's relationship with the EU has always been ambivalent, even since the days of the EEC. Wilson's referendum was, let's remember, a get-out-of-jail-free card to prevent a split of the type seen within the Tories since Maastricht. In Scotland, we get a slightly softer narrative about EU hostility, and the SNP have spoken in the past about "independence in Europe" as being part of their vision. The message, however, is always timid and scarcely if ever made with enthusiasm.

With this in mind, I thought the Party Election Broadcasts of Scotland's main four parties ahead of the European Parliament Elections in May were instructive. I found them telling, not just from the perspective of attitudes towards the EU itself, but of Scottish politics more broadly.

Where is Europe?

The first thing I observed is that two parties don't seem to want to talk about the EU at all. In neither the SNP broadcast, nor the Labour broadcasts, were the words "European Union" even uttered. Neither of these parties, both nominally pro-EU, seem to have anything to say about how decisions are made in the elections we have in barely 3 weeks' time. No discussion about climate change. No discussion about our economic relationship with Europe. No discussion about the benefits to us as EU citizens. No discussion about the challenges the EU faces in terms of reform and helping us better to tackle the problems that remain stubbornly immune to borders. They seem to be banking on the inherent apathy people have towards these elections and institutions, in the hope that they won't be asked actually to do anything about it.

All this Referendum Malarkey

The second thing I noticed is that the SNP broadcast just talks about independence and the referendum. It's a rehash of previous general broadcasts they have used to support their raison-d'etre. It was rather light on actual substance in terms of new arguments for independence, repeated some pretty tired themes with which anyone with a television set in the last decade will now be familiar (still bashing on about Tony Blair's illegal war in Iraq, misleading platitudes about university education, ending "rule by Westminster politicians" and the like). If they were looking to use this broadcast as a springboard to winning a 3rd seat in Scotland on 22nd May, this was a pretty uninspiring way to do it, and its lack of freshness probably will not help them noticeably in the independence referendum.

It does, though, prove symptomatic of the one-dimensional outlook they are taking to politics in Scotland at the moment. Everything is seen through the prism of the referendum, and an opportunity to make capital there, while other meaty issues get swept under the carpet. Far from making the case for "independence in Europe" this broadcast was using one poll to affect another, something which others have pointed out may in fact fall foul of OFCOM's rules on Party Election Broadcasts. Rule 18 specifically provides that "the purpose of a PEB must not be to promote any particular outcome of a referendum". Given the only reference to a polling day in the broadcast is 18th September, you have to think they've got a point, albeit it is OFCOM more than the SNP that would have questions to answer.

Where is Scotland?

The third thing I noticed, first and foremost, was that the broadcast last week (23rd April) on behalf of the Scottish Labour Party, er, wasn't. It was the generic one put out by Labour across the UK. And, as I pointed out earlier, it has nothing to say about the EU elections. It is a three minute David Morrissey voice-over diatribe about David Cameron and the Tories, and their top-down reorganisation of the NHS with a swipe about the Lib Dems breaking their promises on tuition fees. I point this out because not only was it a London hand-me-down, but it was talking about things that are totally irrelevant to voters in Scotland, where different policies are pursued. It continued to give me the distinct impression that Labour just doesn't get devolution, the long-standing irony given they delivered it.

They don't know whether they like centralisation for solidarity or subsidiarity to allow for genuine difference. It's not just a problem for them in Scotland. When Ed Miliband talks about creating regional ministers in England, that's not a creed of localism. On the contrary it ignores the people and bodies at a more local level who already exist. His solution is not to give Yorkshire a man in Westminster, but Westminster a man in Yorkshire. Labour, in embodying this top-down concept of local power, find themselves institutionally at odds with the EU debate. Their problem is they don't know what the EU is for either. They can't talk about a vision for Europe or what they want to do with the EU, because they don't have a big idea for it. They don't really get the European principle of subsidiarity, so they don't know how to fight for it.

I had thought this was the only offering Labour would give Scotland, but it was brought to my attention that this evening they did in fact release a Scotland specific broadcast. It was much the same story, though. Combining the failures of their UK-wide broadcast with that of the SNP, they managed not to talk about the EU, mutter platitudes about the independence referendum and not say much else. Though not as explicit as the SNP broadcast, this too could arguably fall foul of the OFCOM rules for irrelevancy.

Partial credit for candour

At least the Tories had the courage to talk about the European Union in their broadcasts, both their UK-wide one and their Scottish one. They outlined the broad achievements they believe Cameron has secured in the EU, the broad areas they want to change about our relationship with the organisation, and what their policy is on a future referendum. You can disagree with their policies, but both their UK and their Scottish message actually dealt with EU-issues, and in a way which was at least relatively constructive rather than overtly hostile as we hear from UKIP.

An idea for Europe

Which leaves, among the parties still holding seats in the European Parliament from Scotland, the Liberal Democrats. Now of course I'm biased. But it's not as though the Scottish Lib Dems have an unblemished track record on Election Broadcasts. I still have the occasional nightmare thinking about Tavish Scott's wind-tunnel "Save our Police" disaster in 2011. But the Lib Dem effort this time round is pretty much the only one with a clear, unequivocal, positive message specifically about EU issues and how the EU works for us, pitched to a Scottish audience to deal with our concerns. It talks about trade, growth, employment, education initiatives like Erasmus, environmental standards, cross-border co-operation on crime and raising employment protections across the single market.

Will these broadcasts significantly impact the way people vote on 22nd May, or even if they vote at all? Probably not. But that's surely all the more reason for our political parties to take on the responsibility of using platforms like that to explain to people why they should care and why they should learn about what it is the EU does and how it affects their lives. If we treat the EU elections just as an excuse to propagandise about whatever side of Scottish independence or to ram home the mid-term-blues of the government of the day, is it any wonder the only people who are left caring about Europe are the nutters who want out of it? Scotland isn't as Eurosceptic as the UK as a whole. There is no serious danger of the majority of the Scottish population wanting out of the EU.

But if Scotland's two biggest parties won't make the positive case for the EU, either in its current form or reformed, it is only the cause of international co-operation that suffers. With every election that fails to break 40% turnout, we entrench the apathy without quelling the antipathy, on a popular mandate that withers the further we move away from 1975. If people don't trust or won't support, institutions which benefit them and their children, and their children after them, then our political class have only themselves to blame.

The Death of Nuanced Debate

Binary choices make for polarised debates

Constitutional reform is something I care passionately about. There are significant problems with the way the United Kingdom looks to enable its people to govern themselves. I was converted to Scottish independence by a growing scepticism that Westminster was capable of reinventing itself and producing a credible approach for a new relationship between London and Holyrood. And yet I find myself utterly despairing at the argument and the attitude underpinning the Yes campaign. More than that, though, I find myself utterly scunnered with the way this debate is being engaged with, and the disrespectful misrepresentation and hostility being pursued by both sides.

Sturgeon v Carmichael - a Dirty Battle in a Disgusting War

Take this evening's Scotland Tonight debate. The general consensus of viewer and pundit alike is that Nicola Sturgeon defeated Alistair Carmichael and comfortably too. But she did so with a kind of politics and approach to debate that simply isn't worthy of a people answering difficult existential questions about their future. She constantly interrupted Alistair Carmichael before he could get a word in edgeways. She ducked and she dived several legitimate questions, including on the currency and European Union membership, engaging in irrelevant whataboutery (and sometimes, outright lies, for example that the currency is anything more than a legal instrument relying on Westminster statute applying to the United Kingdom).


Fudging Democracy

She trotted out tired lines about Scotland getting Tory governments "forced" upon it, ignoring the inconvenient reality that in 2010 it was Scottish votes that denied the Tories a working majority (or for that matter that more Scots voted for the Tories or for the Lib Dems in 2010 than for the SNP in 2011) and the fact that the SNP support decisions about Scotland being made by the European Commission and Parliament, bodies which respectively are not elected and in respect of which Scotland would have a SMALLER proportion of the representatives than the UK Parliament. She made no effort whatsoever to try to defend the central notion of independence, that it's not "getting the government we vote for" it's deciding who the "we" should be when we address particular challenges within our society.

Does she think that welfare is something on which better political consensus and delivery can be achieved through governments in Edinburgh or governments in Westminster? Does she think that international disputes and problems like climate change or EU decision-making or conflicts in the Middle East are better addressed through lots of Western states working loosely together through discrete actors in an intergovernmental organisation like NATO, or fewer, more integrated units in the same kinds of organisation? Are nuclear weapons more or less likely to be dispensed with in the context of Europe and further afield if Scotland works within the UK structures, or if it acts distinctly on the international stage? Those are the real questions that independence address, not a flippant "Scotland didn't vote for the Tories". She's already assuming that the answer to "who is the most effective actor" is *always* Scotland, without ever explaining why international organisations are different from the UK in this respect.

False Equivalence

She seemed more determined to "beat Alistair Carmichael" than actually to explain and defend the positions her government had adopted in the White Paper. She asked ridiculous questions of Carmichael, like what powers he could "guarantee" would come to Scotland in the event of a No vote. Of course he can't answer that! The proper way further devolution should be delivered is by way of a Constitutional Convention, involving multi-party discussions and input from civic society. There is no point in holding such a Convention just now, when it could be rendered redundant by a Yes vote, and since the Liberal Democrats do not comprise a majority of Scottish seats in any Parliament, it would be inappropriate for Alistair Carmichael to start dictating the terms of that process or the outcomes. He does not control the Scottish Labour Party or the Tories. The most he can do is to point her to Scottish Lib Dem policy, the detailed provisions for Home Rule set out by Ming Campbell. It's not his fault if she hasn't read it.

"But people are asking for the SNP to give answers to everything" comes the retort. Okay, so plenty idiots at BetterTogether have asked stupid things from dialling codes to Doctor Who. But that's not what Alistair Carmichael asked you. Engage him on his merits. He asked you not about "everything" but about things that either a) have to be decided in the event of independence, negotiated under their watch, as an exercise of sovereign power in the event of a Yes vote or b) serve as permanent structural limitations or opportunities to what an independent Scotland can do, irrespective of its internal democratic structure.

Misleading on the Currency

So the first example: currency and the EU are perfect examples of this. A Yes vote *triggers* a change in the legal relationship between us and international organisations and with the central bank of the United Kingdom. We therefore need to have an explanation what the people who will actually be negotiating on behalf of Scotland will do when they set up the framework of our independent state. We need contingency plans that properly articulate first of all what our preferred kind of structure is but then secondly what structure we would adopt in the event we were unable to reach agreement with other parties.

So if the UK Government says that it will agree to a currency union, but only with specific measures for fiscal oversight of an independent Scotland, what kind of fiscal oversight would the SNP tolerate and what kind oversight would it reject? If the UK insist on a level of oversight greater than the Scottish Government are prepared to accept, because it would impinge on our fiscal levers more than it benefits us in terms of things like transaction costs, what is their plan B? Will they unilaterally adopt the pound, without a lender of last resort? Will they create a central bank with a pro-rata share of Bank of England assets and issue a Scottish currency at par? We need to know that they've given proper consideration to the alternatives, many of which, incidentally, would be more in Scotland's interests than to enter into a potentially very inflexible currency union. The smart response would have been to say that it is more in the interests of rUK to have a currency backed by North Sea oil revenues than for Scotland to choose willingly to enter into a currency union, gaining only limited transactional benefits, when Scandanavian countries have enjoyed far more flexibility and strength when combining oil revenues with independent currencies, and that Scotland is being magnanimous by agreeing this interim arrangement, in respect of which fiscal policy would be carefully monitored across the UK to assuage the markets that both new countries could hold their own.

But what did Nicola Sturgeon do? She lied. She said that the pound is "Scotland's" currency and that we "own" it too. First of all, you can't "own" a currency. It isn't an asset. It isn't "property". Currency is just a legal instrument used (usually by a state) to facilitate exchange of goods and services, issued against the value of reserve assets held by a central bank. Now of course there will be negotiations about what happens to the assets of the Bank of England, just as with all the institutions that are arms of the British state in the event of a Yes vote. But the assets, though controlled and owned by those institutions, are DIFFERENT from the institutions themselves. Scotland does not "own" a shareholding in British institutions. That's just not how our state is structured. We are a (legally) unitary state, not some sort of multi-national corporation. There has to be a negotiation about the division of assets (again, not institutions) and liabilities precisely because independence is the creation of a new state from part of the UK's old territory, rather than a disaggregation of a clearly demarcated confederal union. By giving inaccurate information about the true situation, Sturgeon may have done enough to persuade the layman that Carmichael's arguments about a currency union weren't relevant or especially penetrating, but she debased the proper understanding of what it means to be independent and how that transitional process would operate.

Fudging the issues on the EU

Similarly on the European Union. Sturgeon promised (without really justifying it at all) that the process will be straightforward, and that it will be in the interests of the other members to go along with Scotland enjoying membership on completely protected terms as good as they are just now, with opt-outs and rebates in full. All Nicola Sturgeon had to do was admit that membership wouldn't be automatic, but that there would be significant trade and movement consequences that would harm the rest of the EU if they were not to respond pragmatically to the new situation. She could have pointed out that even if we didn't get an ERMII opt-out, that in practice the obligation eventually to join the Euro is unenforceable. She could have pointed out that imposing Schengen rules on Scotland would bring no rational benefit to anyone in the rest of the EU because, being an island rather than on the Continent, all travel arrangements to and from Scotland would still involve an air or sea journey, which still involve passport controls. She could have pointed out that it was in the interests of those in continental Europe and of the rUK to allow Scotland to have a Schengen opt-out and to be part of the Common Travel Area, because to do otherwise would benefit LITERALLY no one.

But she didn't. Instead she made misleading statements about Scotland "already being a member" of the European Union. John Swinney did the same on Newsnight half an hour earlier. Scotland is NOT a member of the European Union. It is a territory that just happens, at this moment in time, to be part of a member-state of the European Union. Sturgeon was hiding behind a lie that doesn't even help her case. Instead of tackling head-on the question about the terms of Scottish membership and what renegotiation would actually mean, which if played right would have been a thoughtful and intelligent dismantling of the real world consequences of the "uncertainty" of EU membership, she turned it into an "us and them" debate, trying to imply that the UK was trying to act contrary to Scotland's interests.

Scaremongering

The thing about these kinds of situation is that they do not have an actual comparator in the event of a No vote. The default position in the event of a No vote is the full provisions of the Scotland Act 2012 enter into force and Scotland gains, among other things, partial powers in respect of income tax and stamp duty land tax, beyond which anything that changes further will require the consensus of the political parties. Nicola Sturgeon mentioned that EU membership was under threat in the Union. No it isn't. If you vote No, there STILL has to be an outright General Election victory for the Tories or Tories with UKIP before an EU referendum is even remotely on the table. The Tories couldn't even win an overall majority in 2010, with 37% of the vote, and with the failure of the Boundary Reforms, the absolute best they can hope for is to be the largest party, which is still very unlikely. The idea that the UK's membership is under threat is ludicrous, and scaremongering straight out of the BetterTogether song-book.

And then there's the fearmongering about cuts to the block grant. The SNP cannot have this both ways. They complain that the funding formula is unfair because it takes inadequate account of what Scotland contributes to UK taxation by way of the oil revenues. Not only does this jar inconsistently with the more "redistributive" model of justice they sign up to for Scotland, but it also makes them completely hypocritical when they then complain that any (at the moment, tentative) moves to construct an alternative to Barnett based on need might lead to Scotland receiving slightly less, in order to balance out historical disadvantage to Wales and the North East of England.

Even to give effect to Scotland having more control of its own taxes, however, Barnett ultimately needs to be done away with. In the event of a No vote, the SNP will presumably argue that the Scottish Parliament still needs more fiscal powers, to control income tax, corporation tax and capital gains tax. But at the point Holyrood controls most of its revenue, the Barnett formula, ultimately a spending formula, thus neither particularly good at assessing contribution or need, simply has to be abolished. By refusing to engage with the alternatives to Barnett, and by painting it as a zero-sum game, they are actually making it more difficult, not easier, to bring about more control for Scotland over its affairs and more fairness in the way Britain is being run from a financial perspective.

The Real Challenge

And this rather goes to the nub of the problem with this debate. The sensible, constructive dialogue that is necessary to get a true consensus on constitutional reform, is being drowned out by some absolute drivel and a polarised discussion about what the real options are. Westminster is not going to turn around and significantly cut Scottish spending without a quid-pro-quo over revenue control, and it's not going to take powers back in the event of a No vote. That would be absolute suicide, would lead to another independence vote within 10 years and a landslide for Yes. But equally, the framing of this debate as a binary question has culled any hope of free, independent thinking about what independence really means for Scotland and what the nuanced alternatives could be if only people were less needlessly antagonistic. In the event of a No vote, the SNP have backed themselves into a corner whereby they have created a prophecy of doom for Scotland. We need to know that they won't make it self-fulfilling by sulking in the corner saying "I told you so" and to be sure that they will show a genuine commitment to more powers for Scotland, unlike how it was with the original Constitutional Convention.

To be clear, I'm not just criticising the SNP. The Unionist parties have had an appalling attitude towards Scotland in the last six years, refusing to work with the SNP in 2007 on a referendum, refusing to work with them on the National Conversation and designing their response to Scottish politics to "dish the Nats" rather than simply to produce a relationship between citizen, Holyrood and Westminster flexible to modern requirements and capable of projecting Scottish and British interests onto the international stage. They need to banish the absolute dinosaurs like Ian Davidson, and start to talk constructively about how the very idea of sovereignty can be reinvented in the British state, reshaping what it means to exist in a multi-national union and to question the very premise that nation-states are the most desirable state of being. They need to talk about direct representation of the devolved administrations in EU delegations. We need a more consensual approach to decisions about things like national security and the intelligence services. We need to trust the devolved institutions to have direct control over welfare decisions. We need to make them, and the councils below them, responsible for raising most of what they spend. Creating a governing structure rooted in the idea of accountability rather than asking to whom the buck can be passed and who else can be blamed for difficult policy and spending decisions.

My real worry is that Scotland, far from being betrayed by the Tories, will ultimately be betrayed by its two biggest parties. An SNP who have bet the house on a narrative that this referendum is all or nothing, and who will therefore have a stake in proving that, and a Labour Party who, when it even pays attention, wishes this referendum were about all or nothing and will treat it as such if they win. Scottish politics has been poisoned by this referendum and the politicisation of the most basic facts and legal realities about how we govern ourselves.

Donald Dewar spent most of the 1990s telling Ian Lang "to have some imagination" about the possibilities for the future of Scotland in the face of the UK Government's opposition to devolution. What we've been given is a choice between Labour's void of imagination and the SNP's delusion.