We can't have both

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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!

Flying a Kite - Some thoughts on education inequality in Scotland

Education has long been held-up as a sacred cow in Scotland. Arguably even more so than the National Health Service. For decades Scotland has lived-off its reputation for comprehensive, broad, inclusive education and the pedigree of the Enlightenment and the contribution of its Universities sector to philosophy, economics, law, the sciences and medicine.

This reputation is one that ignores an underlying reality: that Scottish education, at all levels, has stagnated since devolution. Secondary school pupils are presented for fewer qualifications, on average, than they were before, primary and early secondary school literacy, numeracy and science education rates have fallen behind international competitors (not helped by our withdrawal from PIRLS and TIMSS monitoring) and access to our Universities for the most disadvantaged, despite larger intakes and state-funded-tuition, are appalling. Budget decisions in recent years have also narrowed the scope for adult learning and vocational support, with a cut of over 150,000 college places.

Perhaps most importantly, the people that are being most disadvantaged by these various problems are those from the most disadvantaged backgrounds. St Andrew's University has come-in for some flack over this, but others also perform poorly in this respect. A recent Freedom of Information request, for example, showed that a teenager living in Easterhouse was more likely to end-up in a young-offenders' institute than gain a place at the University of Glasgow.

Part of the response from Universities and the Scottish Government has been both to expand very specific and dedicated forms of maintenance support towards the most disadvantaged, and to adjust minimum admission requirements for those from more deprived backgrounds. Whilst these schemes are welcome, they are very limited in their scope for success and, financially, have actually been off-set by the Scottish Government's withdrawal of maintenance grants in favour of making student support more loan orientated.

In truth, though, to blame the Universities slightly misses the point. Scotland's education problems begin far earlier than we like to admit. The discrepancies are well-entrenched by late secondary school and arguably begin significantly earlier than that.

In Glasgow, the city I live in, this is incredibly stark. Govan High School, a secondary school in Nicola Sturgeon's constituency, saw within the margin of error of zero percent of its pupils achieving five Higher passes, the "gold standard" for those seriously contemplating going to university in Scotland. Looking down the list, other similarly disadvantaged areas, with a couple of exceptions, achieve similarly depressing results. The trend is similar in other local authority areas, with Northfield and Torry Academies in Aberdeen getting fewer than one in twenty pupils up to the 5 pass standard. Even in local authorities with generally very good records on schools and attainment, like East Renfrewshire, there are schools with weak results. Barrhead High School, for example, though punching above its weight, only secures 5 Higher passes for one in four pupils.

This isn't to denigrate the efforts of the teachers, pupils and parents in these schools; quite the opposite. They work exceptionally hard in a system that is failing to provide them adequate or fair support, of both financial and non-financial kinds. What is so damning is how badly the life prospects of children in these communities are affected by the post-code lottery.

It wouldn't be so bad, from an equality perspective, if the reason for these low pass-rates was that the exams are far too tough. But they're clearly not. In Glasgow you are one and a half times as likely to leave school with 5 Higher passes if you go to Jordanhill School than you are to leave even with one Higher pass if you went to St Thomas Aquinas School, which is barely 350 yards away, or Knightswood Secondary, 1000 yards in the other direction. In East Renfrewshire, if you go to St Ninian's, a similar pattern emerges compared with your counterparts that go to Barrhead.

These differences are too large simply to be attributable to the quality of the learning environment of the schools in isolation. Focusing more resources, whether through targeted school-specific funding or by way of a pupil-premium that tracks free-school-meal kids, might help hire an extra handful of support teachers and slightly reduce class sizes, but it is not going to change fundamentally the position of those schools. We need instead to be more radical and to ask how demographics, and especially how primary and early secondary school education, stratifies Scottish society so spectacularly.

The big successes of the London schools in narrowing attainment gaps has come through a willingness both to invest, but also to experiment. We should be cautious of directly implementing ideas that may work there but would be inappropriate to Scotland's system. Nevertheless, I think there are three areas, largely untouched by Scottish education reformers, that need to be given serious thought in the next few years. They are: the problem of the urban-rural divide; the structure of secondary schooling; and the pitfalls of catchment-based primary schooling.

1. The Urban-Rural Divide

Schools often face very similar problems in terms of being under-resourced and unable to provide a full curriculum and adequate support to their pupils, regardless of whether they are an inner-city school or serving a number of village communities in the Highlands and Islands. But the solutions to these problems are unlikely to be the same beyond the rudimentary fact that there is a greater need for resources. What works for Glasgow and Edinburgh may not be suitable for Aberdeenshire, Dumfries and the Highlands and Islands.

This is not a reason not to experiment more radically with the way we provide schooling in one type of area to the exclusion of another. Local authorities need both more freedom, but also to be given greater encouragement, to try something new. Instead of having a blanket opposition to changes, like experimentation with academies and free schools, we should be prepared to look at other countries, not just England, to see what they have tried and how we might adapt that to see what impact giving head-teachers and parents more direct control over financing and management decisions in a Scottish context would have.

2. Secondary Education Structure

One way we might be able to overcome the problem of narrowed availability of courses in our cities and large towns' schools, would be to rethink how we divide primary and secondary education.

One of the most unsatisfactory states of affairs at the moment relates to how pupils end-up being bussed from one school to another just so they can take their preferred Highers or Advanced Highers, at not inconsiderable expense, inconvenience, and disruption to the school day. We should think about whether the introduction of or experimentation with a "junior high" and "senior high" set-up in Scotland might better address this allocation of resources problem, especially in our cities and towns.

This would more cleanly bring together a critical mass of students taking the same courses and allow teachers, if they wish, to specialise or focus on teaching either the younger or the older age-group. Given that the Curriculum for Excellence framework now places more emphasis on generalist learning up to and including S3, this would arguably also make more sense now than before.

This would also allow for the "pairing" of advantaged and disadvantaged areas and schools, and encourage more sharing of best-practice and resources between schools in a local authority area. If a schools "group" that contains a high-performing school knows that its overall results are likely to be dragged-down by less good results from a paired school, they are more likely to focus their resources on improving approaches and resources for the "junior high" servicing that more deprived area.

Clearly, an approach like this would be less suitable for rural areas. That is not a reason at the very least not to try it in Glasgow, Aberdeen, Edinburgh and Dundee.

3. Primary School and Catchment Areas

In a system where all, or almost all, schools are organised on a comprehensive basis and run by a local authority, the secondary school you go to is almost entirely determined-by the primary school you went to. That in turn is almost entirely determined by your post-code. Placement requests can be made, but are disproportionately used by families who are already relatively prosperous, or who have a strong background of education and high levels of awareness of how best to "game" the system.

England does not have as stringent approaches to catchments. One of the biggest criticisms of their system, where among other things, selective schools existed, was that the system of applying for places at secondary schools is skewed in-favour of the most affluent families.

A lot of educational research shows that the greatest impact on educational attainment in later life is determined by the levels of support in early-years education. It also intuitively makes sense: if you don't leave primary school able to read, write and count, you will be severely disadvantaged in secondary school where almost all of your learning will depend on a minimum standard being achieved in one or more of these areas.

These discrepancies clearly emerge in primary schools. One of the advantages of primary schools being much smaller than secondary schools is that they are more intimate and are often very well-integrated into their local communities, not least in rural or smaller town areas. I know this well, having attended a village primary school in Auchtertool, Fife, from P1-3 as a youngster. One of the major disadvantages, however, is that when places for primary schools are determined by catchment areas, they bunch-together children from very similar backgrounds, economically and socially. This is arguably more extreme than it is even for secondary schools.

Local authorities seldom change catchment areas either for primary or secondary schools, for fear of the massive backlash, usually from middle-class parents that have bought expensive houses to get their children into a good state school. Though my liberal instincts tend towards localised control, I wonder whether what Scotland needs is a national review into how school places are allocated, and an independent commission to look at diluting catchment areas or otherwise altering admissions rules and incentives.

One of the major advantages of the "pupil premium", the idea that additional state support should follow disadvantaged pupils rather than schools, is that it, theoretically at least, encourages schools to take-on children from disadvantaged backgrounds. This mitigates against reluctance to do so, that might otherwise have been motivated by the impact on school league tables. This especially means that the best schools are more incentivised to take-on kids outside of their traditional catchment areas who have a less good attainment profile, and to maximise their chances, rather than just cherry-picking the brightest kids and taking them away from those already struggling schools.

Having more diverse primary schools, especially in our cities and towns, would be an altogether good thing, and again, would encourage much closer cooperation between schools, both between primary schools and between them and secondary schools, whether or not divided along the lines described above. In any case, we need to find a way to overcome the practical obstacle of pushy middle-class parents trying to protect the existing system for their children's benefit to the exclusion of others.

Conclusions

These are not yet fully-formed thoughts, but they represent the kind of more "out-of-the-box" thinking I believe Scottish education needs if it is to give a fair chance to everyone going through it. Some of this will involve doing more to empower local authorities. But some of it also means asking them either to take a genuine political risk or to cede control and let someone else have a go at improving the chances of Scotland's most disadvantaged kids.

This is in-part why I sympathised with the SNP government when they decided to bring back national testing. The Scottish Lib Dems were quick to criticise this move, but I think that is a mistake. Standardised testing, if not as-such public league tables, seems to me to be an important part of the Scottish Government's armoury if it is to measure the impact of different policies and different local authority's efforts and approaches towards narrowing gaps in attainment and improving attainment in absolute terms. This includes policies like the flagship one, adopted in England and Wales that the Lib Dems now want introduced in Scotland, the "pupil premium".

It is hyperbolic to suggest that four or five formal assessments (prepared in consultation with teachers and curriculum designers) a year represents an unconscionable administrative burden beyond the ken of our teaching profession. These kids will have to sit exams when they are 16-18 years old anyway, so acclimatising them to formal assessment is likely actually to help them later-on. What we really need to be doing is looking at how teaching methods interact with assessment, and how well assessment measures actual ability and meeting of learning outcomes by pupils. The argument that some pupils do better in certain types of test than others isn't a reason not to conduct the tests; it's a reason to look more carefully at what the tests are in fact testing and what teaching behaviours they are encouraging.

So what do you think? I would be interested to hear people's thoughts especially on the questions of the structure and admissions factors in primary and early secondary education. I'm sure there will be those within the teaching profession who can find problems with these ideas, but I suspect the conversation about them is arguably just as valuable and important in advancing the debate about education reform in Scotland. More of the same and tinkering at the edges seems to me to have run its course.

The confessions of an exasperated British federalist

Our future in our hands: which way is best?

If you had asked me four years ago what I thought of the idea of Scottish independence the scorn and incredulity on my face would have been apparent before you had finished the sentence. Of course I was against it. I saw it as parochial, superficial, divisive and really rather peculiar. I also, perhaps unlike most Scots, saw Britishness as an immutable characteristic of my identity. Why would I want to break up my country? What a ridiculous proposition! Moreover, insofar as Scottish independence was articulated, I heard it mostly from people of a distinctly left-wing disposition. Those who knew me then, or indeed now, would probably choke themselves in a fit of laughter at the notion that I would embrace a political movement with apparently socialist-leaning ideals. I can live with centre-right governments and aspects of my politics, particularly on economics, are specifically centre-right by most reasonable definitions.

And yet, on Sunday, and I found myself in a debate at the Glasgow University Union, sharing a platform with Tommy Sheridan, firebrand socialist of poll tax and perjury fame, arguing that Scotland should vote Yes on Thursday 18th September to Scottish independence. Though I argued vociferously for the benefit of the gallery (though not quite so much as Tommy did) my feelings ahead of this referendum are far from unequivocal. I confess whichever way Scotland votes I will feel uneasy about the implications of that decision.

Emotionally British, ideologically Unionist

Emotionally, I still consider myself to be British. If anything, this referendum campaign has given greater cause for introspection as to the nature of my Britishness than of my Scottishness. I empathise with people for whom this referendum feels like being made to choose between those two identities, especially given the inferences of some of the rhetoric of the Yes campaign. There is something seductive about the idea that a national identity, and I do think Britishness is a national identity, can grow and flourish out of overlapping, perhaps confused, incongruent and messy national and regional identities that are part of, but never wholly subsumed by, the nation they create.

For me, Britain, notwithstanding certain aspects of its past and the attitudes of a xenophobic minority in the present, has always been about the celebration and comfort of diversity, tolerance, and being an outward looking family who, though not always agreeing, can come together and understand one another in pursuit of a noble but humble purpose. Together we seek to do good by each other and to the rest of the world.

Further, I do not think that Britain oppresses Scotland or Scottishness. Scotland is a confident, vibrant and successful nation: one which stands tall in the world, through its culture, its sport, its far-reaching and ambitious diaspora, and its intellectual and political contributions to modern life. The nation of the Highland Clearances, received pronunciation and the Scotch cringe of which Scottish nationalists often speak is not the one I recognise as having lived in my whole life. Our eccentricities are not viciously suppressed by the British state. As Alex Salmond himself put it back in January 2012: "Scotland is not oppressed and we have no need to be liberated". We do not need the crutch of statehood to achieve great things and to express ourselves as a nation or as a people. We are already doing it within the Union and would do so in almost any set of circumstances.

I do not accept, as many Nationalists tell us, that Scotland will be punished or made to suffer if it votes No. On the contrary, devolution has coincided with arguably the most optimistic and hopeful period in Scotland's history. For all the painful impact of certain welfare cuts in the last five years, it is easy to forget that child poverty across various measures is down by more than a third in Scotland over the course of the last decade, in no small part thanks to the flexibility of devolution and the unity of purpose behind a number of measures pursued at a UK-wide level. There is clearly an appetite for Scotland to be responsible for more of its domestic affairs, but in a world where even the Tories are offering some more powers for Holyrood, that is hardly incompatible with being a Unionist.

I do not even think it is necessarily true, as the First Minister never tires of telling us, that the people best equipped to make decisions that affect Scotland are necessarily the people north of Carlisle, in isolation, all of the time. Sometimes I think the people who should be making the decisions about how government affects our lives should be a lot closer to home than that, and other times, more remote. I do not think it is necessarily true that just because the Conservatives are unpopular in Scotland, our current Westminster Government is therefore "illegitimate" in Scotland, or at least not simply because the majority of Scottish MPs are Labour.

I do not think, with the complex and integrated history of the nations on these islands, that it necessarily follows there are clear lines we can draw when deciding who "we" are politically. This could scarcely be more obvious when, as a European, I think sometimes Scotland should be bound by decisions made predominantly by representatives elected by the citizens of other states. I cringed when Alan Bissett said on the floor of the GUU Chamber that you should vote Yes if you think Scotland is a country and No if you do not, while simultaneously claiming this debate was not about nationalism. That seemed to me to be an absurd characterisation of what this referendum was about.

By all rights I should be a Unionist, heart, body and soul, and an ideological one too. Yet I find myself on the brink of marking an 'X' in the Yes box on 18th September and very unlikely to vote No.

Britishness is in crisis

The thing is, I find myself increasingly compelled to take the reasons I reject much of the traditional Yes case to their logical conclusion. Just as Scottishness does not need statehood to flourish and be successful, neither too should the ties of Britishness, or Unionism, need the trappings of statehood to exist and to flourish. Just as voting No does not mean Scotland is just a region, neither too does voting Yes mean Britain is not a nation, or at least it should not do. Are the No side really suggesting that that bond of family, of culture, of togetherness is so weak that it cannot endure a separation of our existing political institutions? That is not the Britishness that is part of me.

If Britishness really is that weak in its current form, and has become so dependent upon the crutch of its political institutions for its endurance, then it really is in trouble. The Union does not need patching up, or loosened, through simply more promises of incremental devolution. It needs completely rebuilt from the bottom up. Britain's lack of clarity of purpose is being exposed by an ironically disparate and divided movement, in the form of the Yes campaign, which has managed to suppress its own incoherence in pursuit of what it perceives to be a common goal.

Whereas the independence movement can externalise its existential bipolarism onto visible, real, and material harms, the Unionist movement, if indeed it is just a single movement, has no such luxury. On the contrary, it has become bashful, lest it be associated with a nutter fringe that has stolen the territory of British nationalism from the tolerant, open-minded, previously self-confident majority.

Structural reform is needed

For Britishness to find its sense of self again, and to strive confidently and independently of its political institutions, it needs first to reform those institutions. It has to do so in a way which enables the different components of its identity to grow and to complement one another, as our compound society faces up to challenges of an increasingly global nature. This means asking ourselves not just what powers are exercised by which political bodies, but what we fundamentally see those political bodies as being, who and what they represent, and what their relationship is between one another.

The problem with devolution is that it has failed to re-imagine the nature of the Union and of Britishness at all. Instead of articulating a new, cohesive ideal for how the nations of Britain mesh together, it brought together two very awkward bedfellows indeed. The political environment, cultivated mostly by the Scottish Labour Party, was distinctly Scottish nationalist in its nature.

Whether it was the Scottish Constitutional Convention with "the sovereign will" of the Scottish people or the fostering of the idea of "illegitimate" governments at Westminster, the justification for Scotland being the "self" in self-government carried with it the inference that Britishness was not the self, or that insofar as it was, it was only so to the extent that it was acquiesced to by Scotland. Perversely, this Scottish nationalist political sentiment was welded to the structures of a unitary state. Whatever the political reality of divided powers, there was no attempt to re-invent a sense of the British constitution or the Westminster Parliament, and all its trappings and tradition of supremacy.

Devolution even took a legal form that varied little from the colonial relationships arrived at in places like Australia and Canada in the 20th century. Power devolved is at least notionally power retained. We should be clear that Scotland is no colony: it is a partner with democratic representation and influence on the British state. But devolution is a Frankenstein's monster that attempts to marry two existentially incompatible visions about the relationship between the four nations and Britain. It says that domestic governance in the Celtic nations should be conceived of as unrelated and tolerated anomalies to otherwise homogeneous Britishness.

The absence of a distinctively English voice or set of voices merely serves to accentuate the sense in which these are anomalies and re-enforces the idea that Britishness is really Englishness, and if not a threat to, then at least incompatible or ill-fitting with, Scottishness, Welshness or Northern Irishness. Yet the politics of those devolved institutions are distinctly Scottish, Welsh and Northern Irish, albeit to varying degrees. They are not British in a positive sense, and are defined by what they hollow-out from Britain as a political entity. We cannot have a coherent, confident and positive British identity for as long as England is so unsure of itself. It does not know who and what it is in clear contradistinction to Britain. It is this tension that makes those who consider themselves to be "Scottish not British" think that Britain and Britishness poses a threat to the idea of Scotland as a strong and confident political voice.

What we have needed for decades is a series of political and constitutional relations that clearly conceive of Britain as a partnership of nations and regions, rather than the slow and irreversible demerger that devolution represents. Even if Scotland votes No and more powers are given to the Scottish Parliament, they will not put this issue to an end. The fundamental structure remains in place. The conflict of a unitary British state still jars, arguably more so, with a Scottish people that increasingly see themselves not just as a primary, but ever more so an exclusive, political community.

Reinventing the Union

Put simply, only a form of federalism can save Britain as an idea and free it from a political system that satisfies few and exasperates many. To achieve such a structure, we need to rekindle the idea that the Union is in fact a relationship between nations and that Britain is a mutually supportive by-product of that interaction rather than the means by which one nation is seen, even if inadvertently, to dominate the others. We need to create a set of circumstances in which "Scottish not British" people see the Union as a partnership of equals, facilitative of Scottish (and English, Welsh and Northern Irish) self-confidence and influence in the wider world.

Such a partnership, I regret, will unlikely be achieved in my lifetime within the Union we have now. Notwithstanding the best intentions of Liberal Democrats, whistling in the wind about federalism for well over a century, there is no appetite for English devolution, either as a nation or into discrete regional Parliaments. The whole concept of the "West Lothian Question", where the votes of Scottish MPs determine policies that affect only England, is borne out of the idea that Westminster is really England's Parliament writ a little larger.

If the Scots wanted control over their domestic affairs, they are expected to achieve the acquiescence of Britain as a whole to set up their own Parliament. If the English want control over their domestic affairs, their only proposed solution is to find a way forcibly to remove the Celtic nations from certain decision-making at Westminster. This is, in effect, what the "English Grand Committee" or similar proposals like "English Votes for English Laws" would do.

To achieve federalism, we need a rapid and full-blooded awakening of an inclusive form of English nationalism or of English regionalism. We need a system in which the nations share and integrate resources and institutions not because of inertia, because it has always been that way, but because of affirmative consent: a sense in which they have deliberately come together in pursuit of a common goal. Those goals have to be defined by the nations as they are in the 21st century and not the increasingly irrelevant ideals of what held us together in the past. It is not enough simply to say that you are a Unionist: we need to know what Union it is of which you are a Unionist.

This was no more obvious than in what Drew Smith, Labour's constitutional spokesman, said at the debate on Sunday. He said the reason there was not a third option on the ballot paper for "enhanced devolution" or whatever was because "before we decide on the rules of the club we have to decide whether we want to be a part of the club." This psychology has the concept of a Union completely the wrong way around. The constitutional debate is not just about the minutiae of the rules of the club. It is about the fundamental terms on which the club can be said to exist at all. We cannot say whether we want to be part of the club unless we know the basic assumptions on which the rules are drawn up.

From Federation to Confederation

And so, this Unionist found himself increasingly coming to the conclusion that the only way to save Britain might yet be to break the state that sustains it. To save Britain from itself, it needs shocked into a type of constitutional reform that not even the mere threat of a Yes vote has initiated. With every panicked statement about further powers, whether Devo Max, Plus, Light, Full Fat, Turbo or Supercharged it becomes more and more obvious that the current crop of Unionist leaders do not know how to reinvent the Union. They are so wedded to making this Union work that they may already have lost the opportunity to preserve a Union of any meaningful description.

Perversely, Alex Salmond's vision for an independent Scotland or at the very least a UK-wide version of his devolution max alternative, if advocated by someone who had at heart the intention to save Britain, would come close to a kind of partnership of equals, or at least set it in motion. It would not be a federation, a state of states, as such, but it would be a kind of confederation.

The different communities of the United Kingdom, and potentially even the Crown Dependencies, could have entered into an international compact of mutual support, sharing a travel area, a currency, a titular Head of State, a codified constitution of sorts enunciating common fundamental freedoms and the terms of their co-operation. They could have drawn inspiration from the European Union and created a form of supplementary "British citizenship", conferring political and social rights on the members of the participant nations, islands and territories.

They could have an integrated approach to defence and diplomatic affairs, albeit one based on principles of consensual collective action rather than unilateral brow-beating. We could have developed a clear principle of subsidiarity, encouraging all four nations to recognise the special cultural, historical and political identities of our island communities and England's minority nations and regions like Cornwall and Yorkshire. This would give people throughout these islands real democratic control over the every-day decisions that affect their lives, with most of the advantages of pooling resources when it was in their mutual interests.

The dilemma is that Alex Salmond, most of his followers and most of the Yes movement, do not share, in their heart of hearts, that vision of a British Confederal Union. On the contrary, the reasons they have for wanting a currency union, to share the Head of State, and to be part of the Common Travel Area, are purely instrumental. They want to avoid scaring the horses by convincing those who are "Scottish not British" or "more Scottish than British" that not much of their day-to-day life will change. They know that, in the absence of a big idea for a new Union their opponents can passionately and wholeheartedly believe in, their primary obstacle to independence is fear of the practical consequences and not Scotland's sense of Britishness.

The gamble for me, and I suspect for a fair number of Scots, is whether to put faith in the political class that has systematically and repeatedly failed to articulate a vision for a new Britain in the 21st century just one more time to get it right, or to take this opportunity to put the Union as we know it out of its misery and try to build something new. I have tried throughout this campaign to find the confidence in Westminster to be radical and inventive, but I feel as though I have waited in vain. All that is left for me is either to vote Yes on Thursday or to spoil my ballot and declare a plague on all of their houses.

To see ourselves as broadcasts see us

A vexillological ménage à trois

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

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

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

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

Where is Europe?

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

All this Referendum Malarkey

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

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

Where is Scotland?

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

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

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

Partial credit for candour

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

An idea for Europe

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

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

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

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.

The Death of Nuanced Debate

Binary choices make for polarised debates

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

Sturgeon v Carmichael - a Dirty Battle in a Disgusting War

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


Fudging Democracy

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

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

False Equivalence

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

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

Misleading on the Currency

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

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

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

Fudging the issues on the EU

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

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

Scaremongering

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

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

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

The Real Challenge

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

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

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

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