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".

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.

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.

Constitutional Futures and Fudges

For some months now the focus of my PhD thesis has looked at the secession movements in Quebec, Catalonia and Scotland. I'm especially interested in how each of the Canadian, Spanish and British constitutional orders have gone about responding to desires both for a referendum on secession or independence, and what role the courts have in clarifying the parameters of and enforcing duties owed between the relevant parties in delivering referendums and in responding to their results.

I don't want to get too deep into the nuances of what I've been writing about, though that is for another time. I do think, however, it would be interesting and (I hope) useful to explain a couple of recent developments in the Quebec and Catalan disputes.

Canada and Quebec - Brief Context

Quebec's National Assembly drafted legislation for the holding of a referendum on secession from Canada in 1995, known as the Sovereignty Bill, which led to a razor-thin majority of voters supporting the province's continued place in Canada. There was a legal challenge made by a Canadian citizen to the competence of the provincial government to organise that referendum, in a case called Bertrand v Attorney General and the legislation was found to be unconstitutional, but the provincial judge declined to order the provincial government to cease and desist with holding the referendum pursuant to it. The federal government had been reluctant to get involved in that litigation, lest it be seen to be acting anti-democratically, a perception which could help the Quebecois secessionists' cause.

Nevertheless, in the aftermath of that referendum, the federal government referred a number of hypothetical questions to the Canadian Supreme Court. In the Reference Re Secession of Quebec, the Canadian Supreme Court concluded that there was no constitutional route, otherwise than the amendment procedures provided in the Canadian Constitution itself, by which Quebec could secede from Canada. This ruled-out "unilateral declaration of independence", a right asserted by the Parti Quebecois and Bloc Quebecois, as being potentially legal. This position is adopted either implicitly or explicitly by most country's constitutions, whether or not codified.

What was more controversial in that judgment was that it did say that, under the confluence of the core constitutional principles of Canada, including federalism, democracy, the rule of law and protection of minorities, there would be a "duty" on the part of the federal government to "enter negotiations" to "respond to" a clearly expressed desire to secede from Canada. In my current work, I have explored at length what the substance and effect of these duties would be, and how if at all they can be enforced (my conclusion is that, in reality, they can't). This section of the judgment was important, however, because it gave rise to two pieces of legislation in Canada: one federal; one provincial. Each represented what the federal government and the provincial government respectively believed would constitute a "clear majority" on a "clear question" expressing the desire to secede, and in each case spelled-out the implications of this.

The Legislation

Both pieces of legislation have their faults. The Clarity Act, for example, takes a very narrow interpretation of the Supreme Court's ruling and in many respects, despite its name, does not in fact provide "clarity" as to the circumstances in which Quebec may secede. It does not provide a definition of a "clear majority" and leaves that open to interpretation: for the House of Commons to decide, in the aftermath of the actual holding of a referendum. Canadian politicians have also been less than completely clear or honest as to what aspects of the Clarity Act affirm what the Supreme Court said, and what parts go beyond it, merely drawing their preferred constitutional inferences from it.

In the Macleans Election Debate, current Prime Minister Justin Trudeau claimed that the 9 Supreme Court justices said that a simple majority of support was not sufficient for Quebec to secede from Canada. The Supreme Court did not in fact state that even unanimity of the Quebecois was, in and of itself, enough to give rise to a right to secede, though the context in which they said the threshold imposed may be higher than a simple majority was in relation to this "duty to respond" and not with respect to a right to secede. They were merely saying that the Canadian government could constitutionally insist on a higher threshold; not that they should. Trudeau's position was therefore based on the Clarity Act itself, and was not itself a defence of it remaining in place as compared to an alternative piece of legislation, the like of which was proposed by Tom Mulcair's party the NDP.

However, the "mirror" law passed by the Quebec National Assembly, known as Bill 99, was equally contentious. It attempted explicitly to define a clear majority as 50% plus 1 of those who voted in a future referendum. It also made some pretty broad-brush rhetorical claims about sovereignty that went explicitly at odds with what the Supreme Court had said.

Catalan Parallels

Bill 99 has a lot of similarity with both the Declaration of Sovereignty and subsequent resolutions of the Catalan Parliament when it comes to proclaiming sovereignty and the right to secede. The critical difference, so far, has been that the Canadian federal government had been happy just to leave Bill 99 on the statute book, so as not to inflame tensions in Quebec, especially given there had been no imminent threat of another referendum. Parti Quebecois had weakened at a provincial level and Bloc Quebecois had lost many of its seats in the Canadian House of Commons, first to NDP candidates and then to the resurgent Liberal Party.

In Catalonia, the Spanish Government has been unrelenting in its determination to prevent the holding of a constitutional referendum. They believe that, as the Spanish Constitution states sovereignty rests in the Spanish nation, any plebiscite should take place throughout Spain and not in Catalonia alone on the question of secession. It is also arguably the case that for a referendum only of Catalans to be held, the Spanish Constitutional amendment procedure would itself require a referendum of the whole of Spain. On no fewer than five occasions has the Tribunal Constitucional declared aspects of the secession project to be illegal, and Artur Mas, former Catalan President, was impeached for his role in holding the "non-referendum popular consultation" in November 2014. The Catalan situation has reached something of an impasse, not helped by the inconclusive nature both of the most recent Catalan and Spanish elections.

Bill 99

Despite having left Bill 99 alone, probably hoping it would remain hypothetical and that its inconsistencies with the Clarity Act and the Constitution would never really matter, the federal government could not prevent private litigants from challenging it. In a similar vein to the way that Guy Bertrand had challenged the Sovereignty Bill back in 1995, an English language-rights party in Quebec, the Equality Party, had sought standing to challenge its provisions as unconstitutional. In 2007 the Quebec Court of Appeal granted permission for this challenge to take place, but the litigation had been incredibly slow.

In 2013, then Canadian Prime Minister Stephen Harper asked his Attorney General to intervene in that case and make direct representations as to the legality of Bill 99. There is an excellent piece by Paul Wells, formerly of Macleans, which shows the nature of the challenge and explains some of the context behind it. Progress in this case has been slow, but having contacted Mark Walters, prominent Canadian public law academic who wrote a seminal piece some years ago on the Secession Reference, I understand that this case will be heard by the Quebec Superior Court some time in September this year. As an aside, Mark is currently a Professor at Queen's University in Kingston, but will shortly be taking up the FR Scott Chair at McGill. His help on the Canadian aspects of my thesis has been hugely appreciated.

Why should we care?

The implications of Bill 99 potentially being struck down are significant, as it may agitate Quebecois secessionists, contrary to the wishes of the ardently pro-federalist Liberal government, which continued with the case initiated by Harper's Conservatives. I was prompted to draw attention to these ongoing developments in light of an article I saw in the Canadian media this afternoon. Le Devoir, a French language news outlet, has drawn attention to the calls of a number of Parti Quebecois representatives for the holding of another referendum to try to "break the liberal monopoly and resolve the national question once and for all". The PQ deputies want Quebec to be given a choice between independence and a "new" federal settlement.

The Canadian Supreme Court, Clarity Act and Bill 99 were not just concerned with what constituted a clear majority in favour of secession. They were also anxious that any referendum should ask a question "free from ambiguity". The inclusion of a "new federalism" settlement would very obviously fall foul of the Clarity Act and at least arguably would be unconstitutional in the terms described by the Supreme Court in the Secession Reference. The problem with these proposals, just as with the undefined "sovereignty association" suggestion in the 1995 Quebec referendum, is that they can both skew the result on the principal question and entail their own aspects of constitutional unfairness.

Unless voters are completely clear about what the "developed" or "new" alternative to secession or the status quo is, and what major specific changes it makes to the existing settlement they are being asked to provide a mandate that is simultaneously all things to all people and nothing to anyone. There is also a really basic principle of democracy which is an obstacle in these situations. It's quite right or at least a strong case to argue that democracy can be invoked to decide whether a people want to be part of a club or association of nations or states that make decisions about how they govern themselves. It is quite another to say that a state, nation or country, having decided to be a member of such an association, can then unilaterally set their own terms of membership or impose a broader set of rules for governance that affect all of the other parts of that state. The comparisons to the European Union referendum the UK is currently engaged in is an important one here: trying to set the rules of the game at the same time as trying to play the game to find a winner, in the constitutional context, is messy.

The Scottish Dimension

These developments produce an interesting parallel for Scottish observers, because in the first and second SNP administrations at Holyrood, minority then majority, the prospect of a "two-question" referendum was heavily mooted. I argued at the time that my own political party, the Scottish Liberal Democrats, should have worked with the SNP to develop a "third way". I wanted them very clearly to spell-out an alternative basket of powers and responsibilities Holyrood should have and then to use a political mandate from a referendum to try to encourage the rest of the UK to move towards a more overtly federal structure. Such an approach clearly does come with risks, and if done recklessly could be considered to be constitutionally improper.

But if referendums are to become the principal method by which constitutional change is demanded (the new "gold standard" if you will) constitutional orders need to find ways simultaneously both to make secession disputes much more constitutionally clear-cut, and also to find ways of making internal constitutional reform more flexible and responsive to the structural challenges secessionist movements pose.

Hopefully I'll have a working solution for you before my stipend runs out!

Getting the Government that We Vote for

"For half the time since the end of the Second World War we have been saddled with governments we did not vote for. Even when Scotland votes Labour, there is no guarantee that we end up with a Labour government at Westminster. That decision is made by others. It is out of our hands." Nicola Sturgeon, Scottish National Party Conference April 2014

This is a common theme behind a lot of the Yes campaign's arguments, particularly from the SNP. On a superficial level, it is seductive. The narrative of Scotland as a centre-left Labour stronghold and that governments voted for by English (sic.) voters to the contrary go against the will of the Scottish people, has become dominant.

Not so simple

But scratch beneath the surface, and the picture is not nearly so clear. What are our assumptions about what is a legitimate government? Is it the popular vote? Is it the number of seats? Is a party with more than 50% of the vote but fewer than 50% of the seats more or less legitimate than a party with the opposite?

The last time Scotland gave both a majority of the popular vote and a majority of the seats to any political party was in 1955. To whom? To the Unionists! The Scottish wing of the Conservative ticket. Scotland gave 50.1% of the vote, and 50.7% of the seats to the Tories. In that election, somewhat ironically, the country as a whole gave the Conservatives only a minority of the popular vote. Under an umbrella of identities, including the Ulster Unionists and National Liberals, the Tories achieved more than 50% of the vote and seats in England, Scotland and Northern Ireland, but a relatively poor showing in Wales left them on 49.7% of the vote of the British public.

Since then, it's been a much more subtle story. True, the Labour Party have held the majority of seats in every General Election in Scotland since, and the Conservative share of the popular vote has fallen significantly. But it should be observed that the majority of Scots voted for parties other than the Labour Party in every General Election since the Second World War. Granted, Labour came close on many occasions to meeting such a threshold. For many years they have confidently won the plurality of votes at Westminster elections in Scotland. But if we are to take the democratic burden at its highest, then save the 1955 election, no part of the UK has truly got the government it voted for, save on a few occasions Wales with a Labour Government or Northern Ireland with an Ulster Unionist/Conservative one.

So what?

This point isn't to suggest that none of the governments were legitimate, but to ask for much clearer criteria as to what we consider to be what we voted for. All electoral systems, even proportional ones, make approximations and distortions of the raw electoral desires of the population to provide a functioning, representative assembly. We make constant trade-offs between stability and legitimacy: this is why, for example, the SNP have a working majority, but only 45% or so of the popular vote at Holyrood. We ignore, further, the level of turnout when saying whether a government is legitimate.

More Scots voted for either the Conservatives or the Liberal Democrats in the 2010 General Election than voted for the Scottish National Party on the regional list in 2011. This quirk is down as much to the much lower turnout of Holyrood Elections (circa 50%) than Westminster elections (circa 65%), and only just flips the other way if we only consider the constituency vote at Holyrood, but in democratic terms, the level of public endorsement for those governments is broadly the same. The argument that often follows this observation, that most (Scottish) Lib Dem voters would not have voted that way if they thought they would go into coalition with the Tories is somewhat undermined by the Lib Dems saying they would be happy to enter into coalition with their of the other two parties, depending on the terms. But all that proves is that legitimacy is more complex than raw votes or seats.

The Numbers

But let's then take Nicola Sturgeon's specific claim, that for half the time since WWII, Scotland has ended up with governments it didn't vote for. If we assume by this she means in terms of seats, the data churns out as follows:

• Scotland voted for a Labour government in every election since 1945, except for 1951 and 1955.
• In 1951, Scotland voted for a tied Parliament at 37 seats each, plus one Liberal. The Conservative ticket won the popular vote in Scotland with 48.6%.
• In 1955 Scotland voted for a Tory Government (see above)
• Out of 18 elections, the government formed would have been qualitatively different if only Scottish seats were taken into consideration on 10 occasions.
• On six of these occasions, a Scottish Labour majority led to a Tory Majority Government (1959, 1970, 1979, 1983, 1987, 1992)
• On one occasion, a Scottish hung parliament led to a Tory majority Government (1951, see above)
• On one occasion, a rest of UK Tory majority led to a majority Labour Government (1964)
• On one occasion, the rest of UK voted for a hung parliament with the Tories as the largest party, but a Labour minority government was formed (February 1974)
• On one occasion, a rest of UK Tory majority led to a Tory-Liberal Coalition Government being formed (2010)

On Sturgeon's specific claim we get the following:

• The total period of time in which a government has been formed in accordance with Scotland's wishes since 1945 is 33 years and 11 months. This includes the 1945, 1950, 1955, 1964, 1966, October 1974, 1997, 2001 and 2005 elections.
• If you include the 1955 election, where the Tories tied on seats but won the Scottish popular vote, this increases by 3 years 7 months
• If you include the February 1974 election, in which Scottish votes flip a whole UK popular vote win for the Tories, and an rUK Tory minority from a 24 seat lead to a 5 seat Labour minority, leading to a Labour minority administration being formed, Scotland got a government it voted for by an additional 8 months.
•  The total period of time in which a government has been formed contrary to Scotland's wishes is 34 years 10 months. This includes the 1959, 1970, February 1974, 1979, 1983, 1987, 1992 and 2010 elections, up to April 2014.

The tenor of the claim, therefore is broadly true, but it doesn't tell the full story. Only just over half of the period since WWII has delivered governments not in accordance with Scotland's wishes (as expressed through seats), and it drops to under half depending on how you deal with the 1955 and February 1974 elections.

But that, again, isn't the full picture. If we did the same exercise for Wales, their position would be even less favourable than Scotland's. Wales has frequently voted more than 50% for Labour since the war and always in the plurality and in terms of seats. Wales additionally did not get the government it voted for in 1955 (4 years 5 months). The impact on the 2010 election would have been to move the Tories slightly closer to an overall majority, such that a minority government or a two-party coalition with the DUP may have been, electorally, more likely. In any case, Wales has not had the government it voted for for 39 years 3 months since the war.

If we look at Northern Ireland, ever since the break between the Ulster Unionists and the Conservatives after the Sunningdale Agreement of 1974, none of the parties participating in elections have had formal links with the platform of any of the major UK political parties. Their influence and representation has been next to non-existent in UK elections. By the same metric, NI has not had the UK government it voted for for 52 years 4 months since the war.

And what about England? Leave aside the Bush-Gore style precursor it had in 1951 (where Labour very marginally won the popular vote but the Tories comfortably won on seats). In 1964, England narrowly voted for a Tory Government, and got a Labour one. Similarly, in February 1974, they voted Tory and got a Labour (minority) government. In October 1974, they voted (just) for a hung parliament, with Labour as the largest party, but got a Labour majority. And as recently as 2010, they voted for a Conservative government, and got saddled with a Conservative-Liberal coalition. All in all, England didn't get the government it voted for 10 years 7 months since the war.

What this shows, perhaps more importantly, is that the UK and Scotland have sought to elect the same government for 23 years and 8 months of the last 68 years and 9 months. This isn't a massively strong consensus, but it is consensus. Some seek to argue that in those situations, Scotland has no effect on the result. That much is true. But it is evidence, to some extent at least, of a common cause or direction existing between those nations during that period.

When they have disagreed, Scotland has prevailed in 10 years and 3 months of them, and has not prevailed in 34 years 10 months. So we get just under 1 in 4 of the governments when we disagree with the UK as a whole. This is, if anything evidence of more influence than you might expect for such a small minority of the population in a democracy. The rest of the UK is almost 12 times as populous as Scotland. The fact that it has got the government it wanted only 3/4 of the time where there has been a dispute indicates, if anything, that taken as a whole it is comparatively less influential, all other things being equal, than we would expect it to be.

What should we learn?

What it indicates is that rUK does not speak with one voice either. If we were to find an acceptable geographical boundary to define "the North" of England, you will probably find that it has been denied the government it voted for every bit as often as Scotland or Wales. I suspect also that if you were to take London and the South East of England, it too would have a very mixed picture as to how often it gets the government it votes for, given it almost never votes Labour yet there have been more than 30 years of Labour governments since the war. We are left with the, somewhat unremarkable, conclusion that an area of population more than 80% of the UK gets its way in elections more often than one which represents about 8% of the UK, which in turn gets more of its own way than two parts of the UK representing 5% and 3% of the population.

Against this context, saying that Scotland should always get the government it votes for assumes that the "we" in "who we vote for" necessarily must be Scotland. This should not be assumed. Indeed, it is the question we're being asked to determine. At the moment, our institutions assume that "we" are the UK, that we are Britain, for the purposes of making many important decisions. We are being asked, in this referendum, whether this should continue, or whether the "we" should be someone else. Saying Scotland needs to get the government it votes for presupposes the answer to that question.

For Scottish nationalists, this is perfectly logical. They believe that, because Scotland is a nation, it comprises, at some level, a political unity, and therefore should have autonomy over how they make decisions and who gets to make them for them. Sturgeon's argument, in this instance, is actually not relevant. Even if we voted in lockstep with the rest of the UK, this would be an argument for breaking away and making (albeit the same decisions) for ourselves. This group have a problem when they come to explain our continued participation in institutions like the European Parliament, where Scotland will have influence over about 1% of the MEPs that are elected there. They have little by way of an answer explaining why we should pool sovereignty in countless international organisations, which will make decisions that affect our interests, but over which we have little day-to-day democratic control.

But for internationalists, multi-nationalists, or non-nationalists, who support independence, we do have an answer to those questions. This is fundamentally not about whether we "get the government we vote for" but deciding "who should be the we" for most of our purposes. We should avoid claiming that Scotland has some special claim to govern itself. Rather we should be starting from a more universalist position that decisions should be taken as closely to the people they affect as is possible, practical and expedient. Independence is merely one accessible starting point beyond which to give greater control to local communities over the way they govern themselves.

Sometimes a Scotland-wide approach to something will be preferable to something more local, but we should be clear that it is the decision of those groups to pool those powers in the first place, and that they ultimately have the right to reclaim it. If Shetland wants autonomy over aspects of its domestic affairs, or in extremis, to achieve statehood in its own right, then it should be entitled to do so. There may be situations where pooling power with the rest of the current UK, or with the EU, or other collections of peoples is advantageous over bilateral relationships, but we should be clear that it is a decision for those subsidary communities to take and that they may withdraw themselves from those arrangements should it cease to be their wish.

The argument is, in many respects, a federalist one. The problem with the United Kingdom is not that we do not share considerable values with our English, Welsh and Northern Irish neighbours. The problem is that the terms on which we work together with one another are based upon a narrative of forbearance rather than genuine partnership. Devolution is about "giving away" power (let's ignore for a moment, Enoch Powell's maxim that power devolved is power retained) which originates in the centre. The entire structure of that relationship looks at it the wrong way around.

The UK isn't undemocratic because Scotland votes one way while England votes another. If it is undemocratic it is so because it conceives of the state not as a repository for the power of the many peoples that comprise it, capable of withdrawal on demand, but of the source of power itself.

The reason I am voting Yes in this referendum is not because I want Scotland to "get the government it votes for"; it no more does this at Holyrood than it does at Westminster. It is because I want the relationship between the people and the state to change, and Scottish independence provides a constitutional moment, an opportunity, to begin to redefine that relationship. It is not the only path. It's not necessarily the optimal path. But it is the path of least resistance.

Conference is about Democracy - let Yes Scotland in

The Liberal Democrat tradition is a proud one when it comes to democracy. We don't just value it as a system in the wider political arena, whether in response to Scotland's democratic deficit in the 1980s and 90s, or to reform of the Westminster institutions and electoral systems. We do genuine internal party democracy too. Just look back at our week in Brighton, where journalists and commentators alike continue to be perplexed by just how intensely relaxed our leadership are about us openly discussing things from assisted death, to the government's troubled civil liberties agenda and even the economy. We are a party who believe that disagreement, debate and deliberation creates a more open politics generally produces better outcomes.

Herald article (online, retrieved 3rd October 2012)

That's why it annoyed and saddened me to see an article in yesterday's Herald online edition (and presumably the main paper too) reporting a story that the Scottish Lib Dems had rejected an application from Yes Scotland to have a stall at our conference, on the same commercial terms as other organisations who frequently pitch up at Dunfermline once a year. The public statement from the Lib Dems was to the effect that as a party we don't support independence, and the article in question had overtures that we had suggested insufficient spaces were available to accommodate them.

At the basic level, I doubt there was ever a serious issue with capacity. Having been at the Vine Centre for last year's Autumn conference, I see no reason why a solitary additional stall could not be worked into a floor plan. The reason, therefore, seems to be a question of political messaging.

I can understand a political party wanting to be able to push its own policy platform. We have the Home Rule Commission reporting to Scottish conference, and Scottish Lib Dem HQ will no doubt be keen to push that, firstly as an alternative to independence, but secondly to differentiate us from those on the No side who have little to offer Scotland other than more of the status quo. But rejecting Yes Scotland's approach to be involved in our internal debate (and their money!) strikes me as evasive towards the democratic principle and not a particularly liberal way of engaging with the debate either.

Even if this perception that Yes Scotland was trying to trip us up were true, they are more likely to get favourable press attention complaining of a shut-out just outside the Vine Centre with a handful of activists than they are with a pretty mundane stall at a party conference where, if I'm honest, most attendees will be voting No no matter what. In truth if the Yes Scotland campaign wanted to distract the press from the Home Rule Commission, not giving them a formal platform inside the centre, with clear rules and terms of use to abide by, actually creates the media story in the first place. The negative implications of Yes Scotland pulling off a stunt having been given the opportunity to turn up at Conference would fall squarely on them, as they could not accuse us of shutting them out from debate. The media attention such a stunt would attract would lead to more cameras on Willie Rennie, and more opportunity to publicise the Home Rule Commission and show him and the party to be the standard bearers of a popular middle-ground.

If we wanted to give the Home Rule Commission a bit of space to get its own media attention, we could have said to Yes Scotland that we'd be happy to accommodate them at our Spring Conference instead, perhaps even involving them in a fringe event on whether independence was better or worse than home rule or a federal settlement. We could have shown ourselves to be an open and inclusive party not afraid to fight our case, but equally not combative for the sake of it.

That is why I signed a letter to the Herald newspaper urging the Scottish Liberal Democrats to reverse this decision. This was not about trying to undermine the party or the leadership, but about asserting our liberal values of speaking up when we feel people are being shut out of the democratic process of debate and deliberation. Not all of us who signed the letter are even in favour of Scottish independence, and among those of us who are, some are a lot more reluctantly in favour than others. Some of us are in favour of the Westminster coalition, and others are against. This is principally about changing a mindset within the Scottish Party that everything coming from the Yes Campaign or the SNP is a trap. It's harmful towards attempts to develop our own distinctive policies and actually it's harmful for getting those ideas out into the public domain.

We are not rebels. We are not grumbling for the sake of it. We want strong liberal and democratic voices in Scotland. We don't think the other parties are capable of offering it. We don't want the Lib Dems to go the same way.

Response to Scottish Government consultation on Independence Referendum

As with the UK Government's Consultation, I have responded to the Scottish Government's Consultation on the Independence Referendum and suggest you do the same:

To whom it concerns,

I enclose my response to the questions raised in the Scottish Government's Consultation Paper on the Independence Referendum. I draw particular attention to my recommendations in respect of the franchise and the need for a public and legally clear second question so as best to make clear independence takes primacy in the event of a double-Yes vote,

Regards

Graeme Cowie

Q1: What are your views on the referendum question and the design of the ballot paper?

A: The question is straight-forward and accessible. I'd rather the paper properly addressed the mechanics of a second question (to put that issue to bed once and for all) instead of vaguely mentioning that it could be added if there was a call for it. I disagree with the Scottish Government's view that, per para 1.5 the question could circumvent s29 and Schedule 5 of the Scotland Act in the event a s30 order or extension of power by Act of Parliament was not forthcoming.

Q2: What are your views on the proposed timetable and voting arrangements?

A: They are satisfactory.

Q3: What are your views on the inclusion of a second question in the referendum and the voting system that could be used?

A: I believe a second question asking "notwithstanding your response to Q1 should the powers of the Scottish Parliament should be extended to include full tax-raising powers and other competences which are presently reserved matters" or words to that effect, should be on the ballot paper. As a Liberal Democrat, I have urged my party to work with the Scottish Government to define the parameters of this third option and I would hope that a bit of give and take would be forthcoming on both sides. The first question on the ballot, contrary to the original Referendum Bill in the last Parliament, should be the independence and not the extra-powers question. This leaves the voter in no doubt whatsoever that the primary issue at stake is independence and that devo-max is a related but alternative proposition that will only come into play if the first question results in a No vote.

As a word of caution, I would avoid using "but remaining with the UK" or any reference to such in the second question, because it makes the propositions not merely related alternatives but mutually exclusive propositions. This should remove any pretence of uncertainty with reference to what has been dubbed "Rennie's Riddle".

Q4: What are your views on the proposal to give the Electoral Management Board and its Convener responsibility for the operational management of the referendum?

A: I am content with these propositions. It is a welcome development that the SNP has disposed of its proposal for a separate Referendum Commission, which would have been an unnecessary complication, not terribly expedient, and would have shown a disregard for the good, independent, and impartial work of the Electoral Commission in both UK-wide and devolved referenda.

Q5: What are your views on the proposed division of roles between the Electoral Management Board and the Electoral Commission?

A: No objections.

Q6: What are your views on the idea that the referendum could be held on a Saturday or on other ways which would make voting easier?

A: I see no compelling reason to hold it on a Saturday. By Autumn 2014 the football season will have gotten well under-way and many fans will be quite far away from their polling station in any case. The standard mid-week position is one that should be adopted. I don't see any great need to change the existing polling location arrangements either. That's a matter for the local authorities' Election Boards.

Q7: What are your views on extending the franchise to those aged 16 and 17 years who are eligible to be registered on the electoral register?

A: I wholeheartedly agree with the principle of votes at 16. I cannot, however, agree with the mechanism the SNP has described. There are severe legitimacy issues when it comes to an ad hoc reduction of the franchise as part of the same Act of Scottish Parliament that provides for a one-off plebiscite. Further, the manner and form of registration on the Electoral Roll for 16 and 17 year-olds is inexact and the cut-off would not be as clear (with some 16 year-olds being eligible to go on the roll and others not). The reason this group are registered on the roll at all is to guarantee that they will be on the roll by the time they are eligible to vote at 18. It comes across as incredibly ad hoc and doesn't further it for the right reasons in the constitutionally appropriate manner

If you are going to extend the franchise you have to do it properly and by separate Act of Parliament. I have a lot of sympathy for the SNP in this area since both the Gould Report and Calman Commission supported the devolution of elections in Scotland to the Scottish Parliament. I would suggest that the Scottish Government issue a specific request to be given the power to set the franchise in Scottish Parliamentary and local elections, and by extension any referendums held in Scotland only. Then they could introduce a Representation of the People (Scotland) Bill prior to the passage of the Referendum Bill into law, extending the franchise to 16 for all Scotland-only elections.

Q8: What are your views on the proposed spending limits?

A: I see nothing objectionable.

Q9: Do you have any other comments about the proposals in the draft Referendum (Scotland) Bill?

A: N/A

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.

No is not enough; why the Scottish Lib Dems must embrace the Independence referendum

This post is a reproduction of my Op-Ed on Lib Dem Voice.

Alex Salmond’s SNP have a political mandate to hold a referendum on Scottish Independence. With an unprecedented majority in the Scottish Parliament and a manifesto pledge, the question is not if we have to confront this issue, but how.

Leaving aside arguments about the Scottish Parliament’s legal authority to legislate on an independence referendum (this can be resolved amicably through Westminster legislation) the Scottish Liberal Democrats must engage with the merits, not just of independence, but also “devo-max”.

Although Liberal Democrats generally support the Union, not all members are so-minded. Some (myself included) are ambivalent or notionally support Scottish independence, on distinctly liberal rather than “nationalist” grounds. Much of the SNP’s success resulted from attracting our former voters. Many in that party share our liberal instincts. On several issues we should be natural allies: wrestling power away from a London-centric Westminster; seeking reform of the EU’s CFP; and reforming social policy.

Alas the relationship has been fractious and dysfunctional. The tipping point was the last Parliament. Scottish Lib Dems inadequately co-operated with Salmond’s minority administration, in general and specifically on the Referendum Bill.

As democrats, we should have supported that referendum. As liberals we should have grasped that opportunity to articulate a federalist-inspired alternative. Call it “devo max”, “independence lite”; whatever you like. What mattered was it had to give the Scottish Parliament real power, not simply allocate resources from a Westminster hand-out.

The Steel Commission (2006) recognised this. Seeking full devolution of most taxes and the Crown Estate, it offered a real framework from which to articulate our vision for Home Rule. Parliaments responsible for raising every penny they spend have greater power, but greater accountability too.

Instead, we shunned the SNP’s “National Conversation” and referendum, turning to Scotland’s conservative forces: Labour and the Tories. The result? The Calman Commission, itself a damp squib, further diluted by the Scotland Bill. It marginally changes a tax-varying power Scotland has never sought to use and gave the Parliament modest borrowing powers. It ignored corporation tax, alcohol, tobacco and fuel duty and failed to overhaul the arbitrary and universally resented Barnett spending formula. We squandered a chance to shape Scotland’s future in our federal image. The electorate punished our cautious incrementalism. Our disastrous performance in 2011 wasn’t just a Coalition backlash; our unremitting negativity towards a relatively liberal and pragmatic SNP administration compounded it.

We must not throw-away this opportunity again. Our entire conduct towards the referendum has been in lockstep with the so-called “Unionist Bloc”.

Firstly, we’ve had this argument about the “economic uncertainty” businesses feel about the future constitutional set-up. Sure, CBI Scotland sought clarity on some issues, but most of this information is already in the public domain. In a globally integrated economy the notion that this causes mass uncertainty for Scottish business is unfounded.

Boyd Tunnock, prominent confectionery tycoon, wanted clarity on the currency and whether Anglo-Scot trade barriers would exist. These questions have been answered several times! The SNP would keep Sterling (we would be joint-stakeholders of the BOE) in the interim before putting any change (Euro or otherwise) to the people in a referendum. Further, Scotland wouldn’t have trade tariffs with England provided it was an EU/EFTA member, the first being almost certain. Absolutely there are questions that remain to be answered, for example how to separate assets and the national debt and structural EU issues, but they don’t give cause for scaremongering.

These are, anyhow, issues of process not principle. The raison-d’être of self-determination is being able to choose our currency and which international treaties to sign. Certainly the SNP should clarify their preferred and likely transitional arrangements, but advocating independence isn’t a perpetual manifesto of specifics. Trust the Scottish people to make these choices as and when the time comes.

Secondly, sending mixed-signals about the “devo-max” question, harms only us. Willie Rennie has made some positive signals but we need more. By challenging its place on the ballot we again throw away the chance to engage with the SNP and define the woolly term as our own vision. We could argue for: devolving taxes instead of tax rates; devolving powers to deal with Scotland’s drug problem; and devolving localised work visas to attract more people to Scotland and relieve pressure on the densely populated English South-East. We could seek guaranteed Holyrood representation on UK international delegations, particularly CFP negotiations, so Scotland’s fishermen’s concerns are voiced by the politicians closer to them.

That list isn’t exhaustive. More importantly, devo-max presents a chance to re-establish ourselves as an independent liberal-minded voice on the constitutional debate and in Scottish politics. Laying claim to the consensus option distinguishes us from Labour and the Tories, articulating a vision distinct from independence without attacking it for its own sake. If we do this we should achieve more working with the SNP administration. Moreover, we might just find the Scottish people willing to listen and engage with our ideas again.

There's nothing complicated about a two-question referendum

In response to this public statement from the Scottish Lib Dems/Willie Rennie.

I really don't see what all the fuss is about. The SNP have been completely clear about this.

First and foremost they want an independence question on the ballot. That is a question to the effect:

"Should Scotland become an independent state, Yes or No?" (legal wording ignored for the time being).

In addition to that, they want to have a question to the effect:

"Should the Scottish Parliament be given the range of powers so-identified as "Devo Max", Yes or No?" (again, the specific legal framing can be bashed out as and when)

If the poll produces the answer of "yes" to the first question the second question is irrelevant and should be ignored. Given they are two separate questions it isn't as though people are prevented from expressing their preferences. As Liberal Democrats we should trust the electorate to be able to tell the difference as and when it's laid out in front of them.

And the point about "following the 1997 model" is also a little bizarre. There is a similarity to the 1997 situation in that the questions are separate but related. But what Willie doesn't seem to realise is that the nature of the two questions means that the relevance of the second is, quite unambiguously, incumbent on a "No" vote to the first question rather than a "Yes". This is because they are alternatives rather than pre-requisites. If there is a "No" vote for Independence and a "Yes" vote for Devo-Max then the result is NOT the status quo, but Devo-Max. To suggest otherwise is a little like saying in 1997 "but what if they vote for tax powers but against a Scottish Parliament?" Don't be silly.

Whilst I have slight sympathy for the "consensus option" argument, in the context of how Willie and others have framed it I can't accept its validity. It is inconsistent to play the "which majority has the biggest mandate" card (i.e. say Devo-Max gets 70% and Independence 51%) and then also to say, as we appear to be, that a second question should not be on the ballot at all. If it is a straight Yes-No referendum with only one question, and independence wins it, we'll never find out if devo-max is the option offering the greatest degree of consensus because the question won't be asked!

In any case, as federalists and localists we should be working with the SNP on developing a presentable Devo-Max proposition. Get ourselves in the room and define the third option in terms of our own model of Home Rule instead of wrestling it from the ballot paper. As it stands, all we're serving to do is leave ourselves with nothing to say other than that we're the third-wheel of the Unionist "No" vote. That is unacceptable to me and an increasing number of Liberal Democrats. At the very least, I cannot bring myself to vote "No" to independence, as it infers an endorsement of the status quo. If a viable third option isn't on the table, I will be voting "Yes" to any independence question put before me (and not out of some great clamour for rosey notions of nationhood). If the Liberal Democrats won't champion an alternative, no one will.

Cut the referendum strings. Let Holyrood be a real Parliament!

You can put strings on a puppet and make it dance to your tune. You can't put strings on a real boy and expect the same to happen. So says the tale of Pinocchio.

First let's clear something up. All this talk of Westminster legislating for a "binding referendum" on Scottish independence is total nonsense. There is no such thing as a binding referendum in the UK constitution. All referendums are advisory. Their force is only political and not legal. Westminster could legislate for a Referendum bill which gave specific instructions to begin a process to settle independence in the event of a "yes" vote but it could just as easily repeal that Act of Parliament and not honour the result. Their ability to lock-in a result is no greater than that of the Scottish Parliament.

The real legal issue here is whether the Scottish Parliament has the power to legislate for ANY sort of referendum pertaining to independence because of the reservation under Schedule 5 of the Scotland Act, which makes the "Union" between Scotland and England a "reserved matter" to Westminster. I have expressed my own view on the legal position, that Holyrood lacks the legal power, on numerous occasions and that has not changed.

But let's not pretend that the real legal issue is the real political one. On a political level it must be acknowledged that the SNP have a mandate to ask the Scottish people if they want to become independent from the UK on the terms specified in their manifesto. That includes when it is to be held. It is nothing short of disgraceful politicking on the part of the other parties if they try to place a sunset clause on the holding of a referendum. Westminster should amend the Scotland Act to empower the Scottish Parliament to legislate for a referendum, with access to all of the usual bodies, without ANY strings attached.

A real respect agenda towards the Scottish Parliament and those it represents requires that a basic democratic legitimacy threshold is met, and attempts to manipulate the result by forcing the SNP to hold a referendum before they said they would (in 2014 or 2015) is just crass and the Scottish people won't tolerate it. If David Cameron et al can't see that this is suicidal politicking as well as stupid then frankly they deserve to lose the referendum on that basis alone.

If those ambivalent or against independence want to remain relevant in the discussion of Scotland's constitutional future it must respect the democratic legitimacy of its institutions and let that debate take place. The Scottish people are capable of determining their own future. If independence is such a bad idea, trust them to vote accordingly as and when they asked. They aren't Pinocchio in construction. They're the real boy and strings won't hold them down.

It would, however, be inappropriate for the Scottish Government to use a separate body from the Electoral Commission to oversee the administration of the poll. Whilst I support the principle of the freedom of a separate commission (for example allowing 16 and 17-year-olds to vote) there must surely be concerns as to the independence and impartiality of a body set-up purely for the purposes of the referendum which alters basic fundamentals from the constitutional norms like suffrage. If Westminster is prepared to make the concessions they should, the SNP should be constructive on that side of the mechanics.