The Right to Vote after Brexit

Recently, for reasons related to my academic research, I've been reading quite a bit about nationalism and aspects of the so-called "right to secede". As part of that, I've looked at how we make distinctions between, on the one hand, "liberal nationalism" and "ethnic nationalism". This is a politically fraught area, but one that can manifest itself in how we define who "the people" are. When it comes to deciding who has the right to vote, our laws on citizenship are typically the defining factor, but those citizenship laws themselves can say the lot about a nation, the State that contains it, and its nationalism.

Ethnic v Liberal Nationalism

One of the distinctions that constitutional and political theorists draw, when determining whether a nationalist movement and state institutions are "ethnically" or "liberally" nationalist is how they define, or propose to define, the citizenship of their territorial-political society. Among others, philosopher Kai Nielsen¹ distinguishes these two by characterising "ethnic" nationalism as one which is based on descent and which is therefore on some levels exclusionary, whereas "liberal" nationalism requires that "anyone who wishes to have full citizenship and be a part of the nation may, at least in principle, do so if they learn its language, history, and customs, swear allegiance to it, and are willing to abide by its laws."

It should be noted that liberal nationalism is not quite the same thing as another idea, that of "civic nationalism" that has dominated the Scottish independence debate. A purely civic nationalism, which Nielsen maintains is an "oxymoron" (and I'm inclined to agree) has no concern for protection of cultural and political institutions because of their origins, a characteristic that clearly does define even the more inclusive forms of political nationalism in places like Scotland, Catalonia and Quebec. Purely civic nationalism is scarcely nationalism at all: as I will explain later that is one of the main aspects of it that is to be commended.

Most sovereign States share elements of both ethnic and liberal aspects of nationalism in their citizenship criteria. Descent is typically used as a baseline for belonging to the nation, but this is supplemented by provisions that allow for people to be "naturalised" as citizens. This usually requires that they have acquired a permanent right to remain under immigration law, and may involve them taking some kind of citizenship test. How easy it is to meet the requirements to become a citizen, however, varies greatly. It is possible that you can live in a country under a series of work-related visas, but never be able fully to participate in its political process and to be involved in making the laws that affect you on a day-to-day basis. In the most classic of senses, non-citizen residents (many but not all of whom can properly be understood as "immigrants") are a second-class of person in many liberal democracies. They enjoy basic legal rights, and basic human rights, but they have no influence over the people who make those laws. They assume all the obligations of citizens without the rights: as our American friends might put it, they face taxation without representation.

Britain is a bit more complicated

The United Kingdom, however, has always had an ambiguous relationship with citizenship and national identity. Although clearly the idea of being "British" is something that exists, it faces both internal and external challenges. Internally you have sub-State nationalisms, and externally you have a kind of internationalist conception of peoples too. There are (especially historically) problematic and imperialistic aspects to this conception, but our laws on citizenship and political participation have been and continue to be defined against the context of the British Empire and quite permissively. We do not simply, for instance, allow those holding what is called "British citizenship" to vote and to stand in our elections; we allow "qualifying Commonwealth citizens" and citizens of the Republic of Ireland so to stand. This Commonwealth identity, often conflated or overlapping with the notion of an Anglosphere, allows anyone holding citizenship of over 50 different countries to participate fully in our politics if they have "indefinite leave to remain" or if for other reasons they do not require leave to remain in Britain. Indefinite leave to remain is not an easy immigration status to acquire (certainly less so than it was before more stringent limits on immigration have been imposed in recent decades on movement from Commonwealth countries) but we do see this kind of reversing of citizenship rights into specific groups of non-citizen permanent residents.

Our membership of the European Union has also added an additional layer of complexity to this issue. Anyone who holds a qualifying national citizenship of an EU Member State has EU citizenship, and therefore has certain rights when they exercise freedom of movement in other countries. This includes limited rights of participation in the European Parliament and "municipal" elections of their host State on the same basis as nationals of that State. EU citizenship is therefore a kind of half-way house between national non-citizenship and citizenship, conferring some but not all of the relevant rights.

Both of these aspects of our citizenship laws are more permissive than many other countries that are widely regarded as "liberal" and "open" societies. In Canada, for instance, the right to vote is circumscribed to Canadian citizens, but their process for naturalisation is fairly permissive and their immigration policies allow for a net migration rate in the region of double that of the United Kingdom.

But in other respects our citizenship laws are anachronistic and adhere far more to the notion of descent than they do a true desire to include all adult participants in our society and communities. The fact that voting rights are extended beyond citizens only to Commonwealth citizens (and Irish citizens who UK law don't even consider to be foreign) in their full form, means that it still excludes others from our process simply because of where they came from. Why does a Maltese national living here have a claim to decide who my MP is, but a French national doesn't? Why does someone with leave to remain from Cameroon get to vote in our elections, but someone from neighbouring Gabon with the same immigration status cannot? These distinctions are completely and utterly arbitrary. There is not even a defence here that this Commonwealth voting status is a reciprocal arrangement; plainly it is not and many other Commonwealth countries do not extend British citizens the right to vote.

Relevance to the current debate

All of this is relevant because our leaving the European Union will require us to carry out some reappraisal of our citizenship laws as they currently exist. We saw the rumblings of this issue already when there was a debate about who should have the right to vote in the European Union referendum. The UK Government insisted, and Parliament acquiesced, that the franchise should be based-upon the franchise that exists for UK General Elections. This is a franchise that excludes a number of people who are eligible to vote in European Elections, devolved elections, and local authority elections, namely European Union citizens who are not also Commonwealth or Irish citizens. It was particularly ironic that a democratic exercise that would have zero effect on the citizenship rights of Sri Lankan citizens, but which would systematically affect the exercise of citizenship rights of hundreds of thousands of Polish citizens, allowed the former, but not the latter, to vote.

Should the UK leave the European Union, the voting rights of EU citizens in devolved and local elections could go with it. There is an added complexity in Scotland, in that the Scottish Parliament is now responsible for its and local government franchises, and would likely be responsible as in 2014 for setting the franchise of any independence referendum. But for Westminster at least there is a question politicians must confront here. Are EU citizens, who presently have rights by virtue of residence in the UK, still to have a place in British political decision-making, including, incidentally, not just the right to vote, but the right to stand for election and to sit as an MSP, MLA, AMs and councillors? Or will they lose these rights? If only some of them will lose these rights, which ones, and how will we distinguish?

It is hard to imagine a position that does not either require an extension of political participation rights to all EU citizens with a minimum residence period in the UK, or which otherwise involves a very explicit attempt to deprive people who live in this country of civic rights they previously exercised.

The Real Debate

If one is to be optimistic, however, this need to confront this issue might just require the UK to confront more squarely and honestly what the basis of political participation is in our country. There are two directions this could go in:

1. We become more restrictive by limiting voting rights to British citizens

• This would, in my view, be a most retrograde step, but it is one that a worrying number of people seem to be advocating

2. We begin to decouple the right to vote from citizenship 

• This would involve either bringing EU citizens permanently into some sort of legal status equivalent to Commonwealth citizens, or would involve the removal of a citizenship requirement from the right to vote outright

I firmly take the view that the second of these two directions is the preferable course of action. I have to confess I have never been sympathetic to the idea that citizenship should determine whether or not people have the right to participate in the political process. Even a "liberal nationalism" that says it's okay to exclude certain people if they have not gone through a process to acquire citizenship seems to me to be discriminatory and unfair. To be a truly civic State, one that does not base rights upon descent, requires two things:

1. That all adults bound by the laws of a territory, i.e. those who live in it, can have a role in deciding who gets to make those laws

2. That a country should be as permissive as is possible, and should not discriminate, with respect to who it allows to take up residence in it

If someone has already done enough to satisfy a State that they have the right to live and work or study here, I think it is plainly prejudiced and discriminatory to say that they should have to meet additional hurdles to participate in the civic life of our country than those who happened to be born here or born to the right set of parents.

Put simply, I think it is time for the UK Parliament to remove all references to "qualifying Commonwealth citizens" from the Representation of the People Act and to replace it with a very permissive right to reside stipulation.

If liberals believe in internationalist values, and believe that people should not be defined by their country of origin, or the birthplace of their parents, they should be ramping-up the arguments for this expansion of the franchise. Because if they do not, it could end-up being constrained, going completely against the tide of history. If Theresa May wants to show liberals that her Brexit is about opening Britain up to the world rather than a nascent nativism concerned with the exclusion of those who are "foreign", she should be careful which side of this debate she comes down on.

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1 See among other work, K. Nielsen (1998), 'Liberal Nationalism, Liberal Democracies, and Secession', The University of Toronto Law Journal, 48(2), pp. 253-295 available from JSTOR here [accessed 19/02/2017]^↩

Ratifying a Withdrawal Agreement - The Lib Dem Amendment

Context

The Liberal Democrats have tabled an amendment to the European Union (Notification of Withdrawal) Bill. This legislation was introduced by the government in response to the adverse judgment in Miller v Secretary of State for Exiting the European Union, in which the Supreme Court concluded that Parliamentary authorisation was required before the Prime Minister could, in the terms of Article 50 (2) TEU "notify the European Council of its intention" to withdraw from the EU.

The proposed amendment would require the United Kingdom and Gibraltar to hold a referendum on the "exit package proposed by HM Government at conclusion of the negotiations triggered by Article 50(2)". The choices in that referendum are to "support the Government's proposed new arrangement" or that the United Kingdom should "remain a member of the European Union".

Here's our amendment demanding the British people have the final say on the Brexit deal through a referendum pic.twitter.com/QPSV5OnHrM

— Lib Dem Press Office (@LibDemPress) January 31, 2017

There are two problems with this amendment.

Problem One - A withdrawal agreement is optional

Firstly, there might not be an "exit package". Article 50 notifications trigger a 2-year negotiation period that can only be extended by the unanimous agreement of the 28 Member States. Article 50(3) is very clear about this. The Prime Minister has already contemplated the conditions in which she might reject a deal that is proposed by at least a qualified majority of the remaining Member States. In those circumstances, it is not even clear that the British people would, under this proposed amendment, get the opportunity to participate in a referendum: there is no "exit package" proposed by the government in those circumstances, and our obligations under EU law would extinguish regardless.

Problem Two - Article 50 is not unilaterally reversible

The second problem is that, even if the UK Government does arrive at an "exit package" with the other Member States, it is not in the UK Government's gift to offer the British people a second chance to stay in the European Union. If the deal is rejected at the ballot box, the default legal position is that the United Kingdom leaves the EU without an exit deal. It's not just that Theresa May could ignore the result of an "advisory" referendum in either direction; it's that it's no longer in her gift to give effect to one of the results.

The orthodox view of Article 50 is that a notification, once made, cannot unilaterally be revoked. The UK could not "cancel Brexit" on its own simply because a referendum saw the British people change their mind. This point of law was common ground in Miller [see para 26]. A legal challenge in the Irish Courts has been brought by Jo Maugham QC to try to establish this point, but it is unlikely to reach the Court of Justice of the European Union on a reference and even if it does it is likely to lose. For one thing, their case appears to have relied on arguing that the UK has already notified the EU for the purposes of Article 50, something which clearly cannot be the case now that the Supreme Court has said notification without Parliamentary authorisation would be unlawful (and therefore not, per Article 50(1) "in accordance with [our] constitutional requirements").

In order for the UK to stay in the EU following a second referendum, therefore, the other Member States would have to do one of two things. Either they could agree unanimously indefinitely to extend the deadline of the Article 50 process, and to normalise the cancellation of the Article 50 process by way of an amendment to the Treaties under Article 48 TEU (which would itself require the full ratification process through all 28 Member States). Or alternatively, they would have to try to negotiate a second "withdrawal agreement" that was in fact completely the opposite. Although such an agreement would only require a qualified majority to pass, it may be considered a violation of the Treaties to use Article 50 for the opposite of its intended purpose. Such a "not really a withdrawal agreement agreement" would also still have to be ratified in accordance with the constitutional requirements of every single other Member State.

There is also a fundamental democratic point here. If you do not like Theresa May's deal, you might not like it for one of two pretty diametrically opposed reasons. How should you vote in this proposed referendum if you want a WTO Brexit? The blunt answer is you do not know until or unless what the consequences of rejecting the deal will in fact be are clarified. May's deal might be preferable to you if the consequences of rejecting it are that we do not leave at all. The same is true for a Remainer. If you would prefer May's Brexit deal to a Hard Brexit, it is not reasonable to expect you to vote against that deal on the wing and a prayer that the exit process can be and will be reversed.

So even if the Lib Dem amendment is well intentioned, and there is likely to be fundamental political opposition to it, it fails to protect the right of the British people to choose what actually appears on their ballot papers.

Proposed improvements

So what should they be doing to get their desired ends, assuming it is democratically defensible and feasible to get through Parliament?

1. The Lib Dems and like-minded allies should be seeking to restrict the types of withdrawal agreement that HM Government are permitted to agree to. Their amendment should contain a prohibition against the Prime Minister or any other government representative consenting to an agreement that fails to include a provision that either allows or requires the UK not to leave the European Union if the exit deal is rejected in a referendum. This would allow an agreement to be ratified, contingent upon the outcome of that referendum. WTO Brexiteers and Remainers would therefore know exactly what they were voting for.

This is not an unprecedented approach to how the UK regulates its relationship with the European Union. Indeed this is exactly the kind of limitation imposed by provisions in the European Union Act 2011, which the Coalition Government passed. It imposes restrictions on Ministers variously, "giving a notification", "voting in favour of or otherwise supporting", or "confirming the approval of" certain decisions or processes giving rise to the exercise or transfer of Treaty powers on behalf of the United Kingdom. There are generally two mechanisms by which the Act allows these powers to be exercised: approval in a referendum or approval by Parliament.

2. Their amendment should impose a duty on the government to hold a second, In/Out referendum at least three months before the expiry of the Article 50 2-year window in the event that a withdrawal agreement has not yet been reached. Although such a referendum could not be legally binding without the Council's agreement, this would at least carry a great deal of political weight. Such a requirement would also disincentivise both the EU from being extremely harsh in its negotiating position, and disincentivise the Prime Minister from walking away from a withdrawal agreement on favourable terms, simply because it contained a second referendum requirement.

Parting thoughts

Brexit is going to happen, and as it stands, it's going to be a pretty brutal one. It is going to hand a lot of power back to the UK Government, rather than Parliament. The Miller case gave Parliament a small window in which to assert itself and to constrain the ability of the Prime Minister to act on our behalf. Whether the intention is still, a little delusionally, to stop Brexit, or even if it is well placed, to try to mitigate the damage, the requirement of a second referendum could change the dynamics of the negotiations considerably. But it requires Parliament to be smart: to strengthen Britain's negotiating position by weakening the Prime Minister's. In its current form, the Liberal Democrats' amendment fails to do that.

Number 10 has a Plan

It is not the case that Number 10 do not have a plan. They have a very clear plan. David Cameron let the cat out of the bag in the House of Commons today. He told Angus Robertson, Leader of the SNP group, that Scotland should want to stay inside two single-markets: the British one and the European one.

Similar, "helpful" questions came from Ken Clarke, who pushed fairly overtly for Parliament's preference (for which read, the least Brexit-like) and Pat McFadden, who asked him if he knew of any country which was admitted to the single market but which did not have to accept free movement of workers (the answer obviously being "no, none").

The Plan

The United Kingdom is going to negotiate to become a member of the European Economic Area, or the EEA. The so-called "Norway" option. There will be some quibbles over the specifics and there may be some variation, but it is what is happening.

The Government is holding-off invoking Article 50 for a very good reason. This is a Brexit Prime Minister's button to push, and the longer it isn't pushed, the less room there is for them to save face without agreeing to a terrible deal. Cameron worked this out when he made his resignation statement on Friday Morning. The only person who can successfully lead the UK out of the EU, in the absence of an EEA offering, is a Tory Prime Minister with a substantial (50+) seat majority. With an EEA offering, the coalition of compromise is there across the parties.

Perhaps most importantly, Cameron has essentially decided that the political price for this decision should be that the Brexit Tories should be the ones to be very clearly and publicly responsible for the reneging on promises about immigration, financial contributions to the single market, and economic instability. Put plainer still, PM Boris Johnson will be the one that is blamed for a generation, by Remainers for taking us out of the EU, and by Leavers for the lies and a settlement that undermines the core of the democratic choice he persuaded them to take.

What would it mean

The ironic thing about the EEA is that it is the solution that does Britain the least economic damage and causes the least disruption, yet it is also the one choice that does the polar opposite of "taking back control". We will find ourselves bound by the vast majority of the legislation passed and promulgated by the Commission, Council and Parliament, but will have zero democratic input into those decisions.

It is true that the UK would regain some control over the fisheries and agriculture policies, but we would probably pay roughly the same membership fee as we do now (per capita, Norway pays more!) and we have to protect most, but not all of the treaty rights to free movement of workers.

What about Scotland?

This is important for Scotland for several reasons.

The UK is leaving the EU

It is now extremely unlikely that the UK will remain in the EU. There is no intention among those who matter to try and outright reverse this result. The priority of those who will be in government has swung firmly behind damage limitation.

Reverse Greenland won't happen

That means that any hopes of Scotland staying in the EU proper, while remaining in the United Kingdom, is unlikely. The only circumstances in which that could happen is if some kind of "reverse Greenland" proposal is agreed, to try to ring-fence membership for the UK that only has territorial application to Scotland, as part of the transition to the EEA.

This is a nice, seductive and attractive idea on the surface, but it's totally unworkable. In reality, it involves either the break-up of the British single market into EU and non-EU zones, or else there is very little that can be offered for Scotland that the EEA doesn't provide already. Differential free movement workers rights within a state would also be a nightmare to get right, albeit the actual border enforcement would not itself be radically different from the Norway/Sweden arrangement.

It also faces considerable political obstacles. The EU will not want to set a precedent whereby states can effectively "opt-out" parts of their state from the most onerous parts of EU membership. To do so would undermine the core objectives of the EU. It would be difficult to reconcile the "rights" of these "within a member-state" member-states in the European Council and its Parliament, and difficult to establish lines of accountability for Treaty obligations. The EU is, first and foremost, a Union of sovereign states, and any suggestion that something different would be arrived at would represent such a fundamental change in its nature as an institution as to justify far wider treaty change.

This is completely against the interests of especially the Eurozone. They seek, if anything, greater flexibility to allow for aggressive integration of its member-states. That is not something that can be done while creating different tiers and types of European Union membership. It is also not something that is likely to be entertained by any other state in the EU with a secession movement, lest differential membership terms be seen as a stepping-stone towards outright independence.

Scotland has to Choose

Given this, Scotland will soon have to make a choice. They will have, in all likelihood, the opportunity to choose between three outcomes:

1. Accept being part of the UK, which is itself a member of the EEA
2. Become an independent state, securing its own EEA membership immediately or almost immediately as an intermediary step to full EU membership; or
3. Negotiating as part of the UK's EEA settlement that Scotland receives accelerated EU membership if it chooses to vote to leave the UK in a second referendum

My Preference

As I have indicated elsewhere, it is now (tentatively) my belief that the third option is the most desirable of those three, but it will be the most complicated to achieve. I also believe that this option has its fewest drawbacks if it transpires that the rest of the UK would be in the EEA rather than a looser arrangement with the rest of Europe. We would still, in those circumstances, functionally retain a single market with the rest of the UK, and would be able to trade with them without any serious impediment. The same, incidentally, would be true of the second of these three options as we'd both have the same relationship with the European single-market.

In many respects, therefore, very little in terms of the economic relationships between Scotland and the rest of the United Kingdom would stand to change if we seceded. The key impediments to Scottish independence would actually be fundamentally the same as they were in 2014. On the currency, the pound has weakened, albeit it may strengthen in the coming months. Back in 2014 I always said that a separate Scottish currency, initially pegged to either the pound or the Euro, was preferable to a currency union.

I always thought that problem was overblown. It is a necessary challenge that comes with independence, but in the medium term the answer is obvious and it is not clear that it would significantly impede trade. There will be very little pressure for Scotland immediately to join the Euro, not least because of its own current challenges and the pragmatic interests of both Europe and Scotland in finding a responsible way to address Scotland's deficits, which substantially exceed the Exchange Rate Mechanism's minimum requirements.

The fiscal situation is definitely more acute. I am not going to deny that; indeed I have argued at length about it. But that is the case not because of Brexit but those underlying economic conditions. If anything, the effect of our withdrawal from the EU may well affect the balance of tax generated and public spending committed within the United Kingdom substantially. If Scotland makes clear that it intends to be a full member of the EU, rather than just an EEA member, it may stand to benefit from some of the jobs and business, especially in the financial sector, that the UK currently has in London, thus far seen as a "gateway" to the European Union.

Settling the Mandate

What is clear, though, is that Scotland very clearly indicated a preference to be involved in the political institutions of the European Union, rather than just the single market. I think it is necessary, once we know the tenor of the UK's new relationship with the EU, that Scotland should be given a clear opportunity to choose between the two Unions, and the two relationships that come with them.

If it is the view of the people of Scotland that this fiscal transfers enjoyed by Scotland, the stability of a common currency with the rest of the UK, and the new likely control of fisheries and agriculture, are are better option than seeking outright European Union membership, there would in the event of a referendum be a clear choice for those people. You can still vote No. That would provide clarity as to the conflicting two mandates Scotland has issued in the 2014 and 2016 referendums. This is not a vote British Unionists should fear. There would also still be a clear base for all Liberals, keen to keep all of the UK in the EU, the opportunity to make the case for reintegration of each of the respective two states in decades to come, should the EEA prove an unsatisfactory deal.

Uncertainty

People have absolutely nothing to fear from another Scottish independence referendum, given the very substantial uncertainty that now afflicts both what it means to persevere with the British Union or to depart from it in favour of the European one. What is different is that we need to know what the depth of feeling of the Scottish people was at, apparently, wishing for a diametrically opposite conclusion to those of the English and Welsh people in relation to the European family. The only way we can resolve that democratic deficit is another referendum.

If the difference between the EEA and the EU really is so shallow that the Scottish people really do not mind, I suspect that the British Union, with its pooling and sharing of resources, would in the minds of the Scottish people outweigh that of Europe. In those circumstances, those who prefer or see their primary loyalty to that Union have absolutely nothing to fear from another plebiscite.

Indeed they may be able to kill Scottish independence for a generation with a second No vote in quick succession. I cannot see what they stand to lose, if they are also passionate Europeans, in those circumstances. For if the Scottish people see the EU as so fundamental that we should leave, then leaving demonstrably would advance those interests and values and that is something we should enable them to do.

Conclusions

The fact that we are negotiating Britain's future in Europe, with a conclusive end-point, in many respects actually removes some of the uncertainty of a future referendum for Scotland. The fact that the UK is having to clarify its terms of departure from the EU makes it much easier for the EU to consider the hypotheticals for Scotland, without hitting opposition from other states. Countries like Spain will be far more willing to entertain "pre-negotiation" for Scotland when they know it only sets a precedent where the parent state is leaving the EU already, because Spain has no intention of leaving the EU.

Imaginative thinking doesn't have to mean delusional thinking in the aftermath of this referendum result. The bottom line is that, once we know what the UK is likely to get as a relationship with the rest of the EU, Scotland must clarify its own trajectory. Not to maintain this is, I'm afraid, simply anti-democratic, and actually will turn Scotland's politics back away from real bread and butter issues.

If you want a neverendum, constitutional uncertainty, and economic insecurity, by all means fight Brexit at a UK level. You will make the job harder to secure an EEA agreement, meaning the rest of the UK will diverge more harshly from the EU, and you will make the break-up of the United Kingdom more likely. You will give the SNP an easy narrative for the next 5 years to avoid accountability on its domestic agenda. And the Scottish people will harbour an unresolved grievance, on both sides of the divide.

I don't want that. I suspect in their heart of hearts, most Unionists don't either.

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.