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.

Home Rule and Booze - Just a normal Scottish Lib Dem Conference!

A speech or a suicide note... you decide

The day started at about 7am. After a raucous and alcohol assisted Parliamentary Debate at the GUU, and just three and a half hours sleep, I hauled myself out of bed in time to catch my lift to the Scottish Lib Dem Conference in Dunfermline. My total lack of organisation meant I had to get registration for Conference sorted out, including having a mugshot taken for my voting card that reflected quite accurately my lack of sleep. A brief bacon sandwich properly restored semi-consciousness and it was straight into the hall to begin proceedings.

Shortly before the first debate, I decided to submit a speaker slip on the off-chance I would get selected. I'd written a broadly supportive speech on the first motion (affirming the work to be done by the Home Rule Community Rule Commission) on the back of a Scottish Women Lib Dems leaflet (don't tell them!) in the canteen shortly before. I have to confess to being a little nervous, but what I had to say seemed to be well received, even if I did deviate a little from my script in the middle! I've enclosed what I intended to say, but it's not quite verbatim:

"Conference. This is my first speech at a Lib Dem Party Conference so I'll do my best not to disappoint! Our party is often perceived as constitutionally eccentric. Whilst our views on particulars are invariably well founded, be it on electoral systems or the dispersal of power to different levels of government, there is an increasing problem with showing people why it matters. The success of the SNP in the last 4 years has been predicated on an over-arching message to the electorate in Scotland, however misguided, that they are fighting their corner. In the mean time, we've lost our own liberal narrative for Scotland and have come to be seen as "tinkerers" and strained defendants of an extension of the status quo.

This Commission is the first significantly positive step we've taken in recent years to rectify this situation. Pulling down more powers, be it from Westminster or from Holyrood, means that people should have more control over the things that matter to them. It is more transparent, accountable and democratic when a body is responsible for raising what it spends as the custodians of local services.

I don't think the Commission is perfect, and we need to show that it's part of a wider federal approach, be that encouraging further devolution of power to other regions of the UK or indeed forming a proposal for an English Parliament. That is not to say that we should dictate to our neighbours how to run their affairs (perish the thought!). However we need to recognise that it is the asymmetry of the current system and the ad hoc approach we have taken to it, which has harmed the stability and credibility of the constitutional settlement. We need instead to incorporate this into a truly federal structure under a codified constitution. If we dwell on Calman for too long we risk accepting something with which, when it comes down to it, we consider insufficient.

I worry that this Commission will serve to delay what many of us already want to advocate: the Steel Commission with a lick of paint. In the interim, we must continue to push the political case beyond Calman and avoid finding ourselves on the small 'c' conservative side of this debate. Let's make sure that the people of Scotland see us for the real localists and federalists we are and not the Damascan converts to be found among other parties. With all this in mind I urge you to support this proposal."

There were a handful of other motions throughout the day, dealing with fuel poverty in rented accommodation, affirming support for the Human Rights Act and ethical trade, none of which threw up anything especially controversial. Tim Farron addressed the Conference with a clear message of empathy for our difficult predicament, but with a morale-boosting, positive message for Scotland's role in furthering liberal values across the UK. Michael Moore delivered a speech in which he emphasised Calman as a "stepping stone to Home Rule". I have criticised us overplaying the substance of the Calman Commission in the past and was never especially comfortable with rhetoric of Scotland's "settled will" or Moore's public incongruent approach to SNP demands for more powers. His message was, however, much more promising and I hope he and other Lib Dems at Westminster make it clear that Calman is not our end-game.

Willie Rennie's first conference speech as party leader was a rousing one. Opening with the story of the family of a young girl who needed alterations made to their home to deal with her medical condition, and the cumbersome response of the local authorities when a little flexibility was all they craved. Going on to expose the illiberal and centralising deceit of the SNP with respect to the police and other issues, and confronting the Catholic church about the issue of equal marriage, I really felt as though we have the makings of a persuasive alternative vision to put to Scotland in the absence of just about anything from Labour or the Tories. I was left feeling much more optimistic about our prospects going forward.

I do, however, have one regret about this year's Conference, and it pertains to the passing of the motion put forward in relation to adopting a minimum price per unit for alcohol. The party has, in the past, felt a degree of inertia towards what is an illiberal and ineffectual response to the problem of excessive alcohol consumption in our society. It disappointed me in particular, that Willie appears to be a strong advocate of this policy as well. He spoke with great passion about sending a clear message that we're serious about solving this problem. Other speakers expressed with considerable strength of conviction that the external harm alcohol causes and the correlation with cheap booze justified this intervention.

Lamentably I think this majority miss the point. Certainly many who consume large amounts of alcohol consume cheap, strong beverages in high volumes. But we have to ask ourselves what is it that motivates dangerous levels of consumption.

My contention is that a minimum price simply serves to make the poor pay more for alcohol, does not change attitudes, and only benefits supermarkets who currently sell alcohol more cheaply. High consumption of alcohol happens not because drink is cheap and readily available, but because of cultural attitudes towards drink ("binge" drinking) and because of alcoholism. The predetermined motivation is driven by reaching a certain level of intoxication and not a question of "how many units of alcohol can I acquire for £x". The desire for alcohol in large amounts is not simply a rational economic calculation; indeed if anything such considerations are overridden by social and psychological factors.

The reason that excessive alcohol consumption is linked to cheap booze is because it is after the above premise that the market operates. The cheapest and strongest booze is preferred because it's the cheapest available. This would still be true with a minimum price. The idea that increasing the price makes someone decide just to buy enough alcohol to become tipsy instead of legless has no real basis. People will still buy approximately the same amount of alcohol. The difference is they'll cut back on other things and spend more in doing so.

If you want to mitigate the impact of alcohol, there are two responses. The first is the amendment which was rejected. It was better than the motion, advocating use of higher duty levels to cover the cost to society of excess drink. This at least puts money into rehabilitation schemes instead of helping Tesco's shareholders.

But the second option is, for me, the truly liberal option. To tackle our drink problems we need not resort to what David Laws called "nanny state liberalism" in the Orange Book, but instead examine what it is about our society that makes drink so culturally attractive and by extension what makes our society susceptible to alcoholism. Why is it that alcohol is no less available or especially more expensive on the continent, yet the attitudes and behaviours in relation to it are not nearly so severe?

The liberal response is to better inform people of the risks, to enforce existing laws about serving minors and intoxicated persons more rigorously, and for local authorities to use more discretion as a licensing authority. Targeting the proceeds of alcohol duty to treatment and prevention is not incompatible with this approach, but arbitrary price pointers are. I am almost certain that this proposal shall not make any meaningful dent in alcohol consumption and health risks. It's a large mallet that cannot even crack the nut and I hope Conference finds an actual nutcracker by the next time we come to debate it.

Overall, Conference for this relatively new member was a principled, resilient and a friendly environment. I guess our task is to spread that goodwill across the rest of the country.