Succulent Mince

In a completely different context, the Intelligence services like to talk about "chatter". Sometimes this chatter, regretably, is followed by some outrage; at other times it leads to Police intervention, but its certainly my impression that most often it comes to nothing.


It is this latter phonomenum which seems to be at work today in the "chatter" on the web about how last Thurday's result makes it more likely that the SNP Government will be determined to ensure their is a second question in their mythical Referendum.


Let me make my position clear. Thursday's results do not make it more likely the SNP would lose a Referendum for that would assume there ever was a possibilty of them winning one. It obviously accords with the view of their Partisans to believe this to be some sort of possibilty, even in the midst of the intellectual acrobatics required to explain why one would then contemplate asking another question which, all logic dictates, would make such an outcome less likely. But it also has to be conceded that there are others also with an interest in talking up, or at least not talking down, the chances of a Nationalist victory. They are those professionally engaged to report Scottish politics, who, like, dare I say it, Salmond with Murdoch, are unlikely to dismiss an opportunity to bask in their own perceived temporary importance.


So, in consequence, we've had an almost wilful refusal to pay any attention to all the opinion poll evidence available: that there is no prospect of Scotland voting for Independence. Indeed, even allowing for constrained financial times, one cannot help wondering of the paucity of press commissioned polling on the subject, is, at least subconsciously, motivated by the knowledge that "Salmond has no chance" would only lead to editors questioning why then they were expending such resources on reporting the subject.


But, of course, a new, or an old new angle can always be found. So we have the ressurection of the second question. At this point I feel almost like those who report on the blogosphere about the various wild and often legally impossible proposals spun to the "Mainstream Media" in relation to Rangers financial affairs. At least in that context however there is a recognition all round that the passage of the club into administration was an event from which there was no going back.


It is therefore a great pity that there seems to be no equal recognition that David Cameron and Michael Moore's joint's intervention into the Referendum debate has changed the terms of the possibilities in that sphere as decisively as Craig Whyte's decision to call in the administrators has changed the prospects of Rangers survival. And just like with Rangers administration, you can't simply wish that reality away.


A bit like the estimable efforts of Paul McConville to explain, in simple terms, Company Law to Sports Jounalists, I will now, in turn, try to explain some constitutional law to you, dear readers.


The position before 2011 was that the powers of the Scottish Parliament were only those powers given to it by the terms of the Scotland Act 1998. The powers of the Scottish Parliament however were legislative powers over all matters not expressly "reserved" to Westminster by virtue of Schedule 5 of the 1998 Act.


Schedule 5 Part 1 reads 

The following aspects of the constitution are reserved matters, that is—

(a)the Crown, including succession to the Crown and a regency,

(b)the Union of the Kingdoms of Scotland and England,

(c)the Parliament of the United Kingdom,.......

That however was not the end of the matter. The SNP's proposal 2007-2011 was not technically proposing to affect "the Union of the Kingdoms of Scotland and England", it was merely proposing to hold an "advisory" referendum on the subject, and presumably argue in Court, if challenged, that at no part  of Schedule 5 was the holding of advisory referendums specifically reserved to Westminster.


It would be fair to say that even the proposers of this course concede that legal opinion was divided on the subject of whether this argument would hold water if the proposed legislation was challenged in the Courts. Not challenged uniquely, as is regularly mistakenly reported, by the UK Government but simply by any citizen of Scotland who objected to his or her taxes being spent in a [legally] incompetent way. The Scottish Government refused to publish their own legal advice and, since they never actually introduced any legislation 2007-11, the matter was never capable of being tested in a way in which this might be conclusively determined by the Courts. It did however reach the stage of a Consultation Paper published in February 2010 http://www.webcitation.org/5no62m3yB .


Of interest however was the convoluted nature of the question then being proposed.


"The Scottish Government proposes that, in addition to the extension of the powers and 
responsibilities of the Scottish Parliament set out in Proposal 1, the Parliament’s 
powers should also be extended to enable independence to be achieved. 


Do you agree with this proposal?"




In January 2012 however the legal landscape changed utterly.


The powers of the Scottish Parliament are not fixed forever. As we've seen by virtue of this years new Scotland Act, they can be adjusted at any time by virtue of Primary Westminster legislation. But they can also be changed in more minor ways by virtue of  an administrative order made by UK Government ministers by virtue of s.30 of the 1998 Act.


On 10th January 2012, the UK Government announced that they were of a mind to give the Scottish Parliament express power under s.30 to hold an Independence Referendum. This was a dramatic shift. Suddenly the divided legal opinion on the legality of an advisory referendum became irrelevant, at least if the s. 30 went through. How would the Scottish Government react? Would they stick with their advisory plans despite the risk of challenge in the Courts or would they embrace the s.30 procedure? We didn't have to wait long for an answer.


For on 25th January the Scottish Government published its own (latest) Consultation Paper on the subject of a Referendum. All talk of an advisory referendum had gone. The Referendum was to be held on a much simpler question. But the crucial section on the legalities is this. As I go through this, I add my commentary in red.

Powers of the Scottish Parliament to legislate for a referendum

1.5 A wide range of opinion has been expressed about whether or not the Scottish Parliament has the power to hold a referendum consulting the Scottish people about independence. The Scottish Government's February 2010 paper set out a referendum question asking whether the powers of the Scottish Parliament should be extended to enable independence to be achieved. The Scottish Parliament has the power to legislate for a referendum as long as that would not change any reserved law or relate to those aspects of the constitution which are reserved by the Scotland Act 1998. The referendum question proposed in 2010 was carefully phrased to comply with that requirement. Much independent legal opinion supports the Scottish Government's view.

The key sentences above are the first one and the penultimate one. They concede, publicly, for the first time that there is some dubiety about the competence of a referendum under the current statutory provisions and  explain the convoluted nature of the question proposed in the 2010 Consultation. The fact the question to be asked has now changed assumes there will be a s.30 order

1.6 What is not in question is the competence of the Scottish Parliament to legislate for a referendum about changes to the powers of the Scottish Parliament within the framework of devolution. Legislation to hold a referendum on "devolution max" for example (see paragraph 1.25 below), is clearly within the existing powers of the Scottish Parliament.

This whole proposition is very much in contention (see the terms of  Schedule 5, part 1(c) quoted above). I said at the time that I was surprised that the Civil Servants allowed it's inclusion. That is not however my "QED" point.  

1.7 In a paper published on 10 January 2012 the UK Government stated its view that legislation providing for a referendum on independence - even on the basis proposed by the Scottish Government in 2010 - would be outside the existing powers of the Scottish Parliament^[4]. The UK paper sets out two possible mechanisms to transfer the power to hold a referendum on independence: an Order in Council under Section 30 of the Scotland Act 1998, or an amendment to the Scotland Bill currently under consideration by the House of Lords. The UK paper goes on to seek views on a series of proposed conditions for the transfer of power, including a role for the Electoral Commission and limits on the timing, on the franchise (to exclude 16 and 17 year olds) and on the number of questions to be asked. It also seeks views on whether, as an alternative to the proposed transfer of power, the UK Parliament should itself legislate directly for a referendum.

Indeed they did, and as I have already indicated above, this whole Consultation proceeds on the basis that there will be a s.30 order

1.8 The Scottish Government's preference is for a short, direct question about independence as set out in paragraph 1.10 below. It is ready to work with the UK Government to agree a clarification of the Scotland Act 1998 that would remove their doubts about the competence of the Scottish Parliament and put the referendum effectively beyond legal challenge by the UK Government or any other party. Its preference is for a Section 30 order, [my emphasis] but whichever legislative approach were taken, any change to the definition of the Scottish Parliament's competence would require the consent of the Scottish Parliament as well as the UK Parliament^[5].

[again my emphasis]

1.9 The Scottish Government does not accept the proposed imposition of conditions on the Section 30 order. The Scottish Government's mandate to hold a referendum is clear and the UK Government has denied any wish to put obstacles in the way^[6]. As a matter of democratic principle it is for the Scottish Parliament to decide on the timing and terms of the referendum and the rules under which it is to be conducted.


These are not legal statements, they are political ones. Nothing wrong with that, except that at the start of this section, the SNP recognise they need a s.30 to ask their preferred question but by the end of it, having accepted on the way that a s.30 needs the consent of both Parliaments, they then simply ignore that in the concluding Paragraph.Put more simply the last sentence of this paragraph is a statement of opinion but the last sentence of the previous paragraph is a statement of fact. 


So let me now return to the UK Government proposal. It proposes to give certain powers to hold a referendum. There is however one very big condition to all this.


The proposal from the UK Government is to lay a s.30 in the following terms. (This is lifted from the exact terms of the draft Order attached to their consultation document and again I add my own commentary) 

3. In Schedule 5 to the Scotland Act 1998 (reserved matters), after paragraph 5 insert— 

“5A.—(1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the 

United Kingdom if the following requirements are met. 

This removes any possible current dubiety over the competence of such a referendum. But If Paragraph 1 (as prospectively amended) "does not reserve [the competence of] a Referendum ......if the following requirements are met", then, on any possible statutory interpretation, it does reserve it in any other circumstance. This is key.

(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under 

provision made by the Parliament. 

This expressly prevents a "different" referendum on e,g, "Devo-Max" being held on the same day.

(3) The date of the poll at the referendum must be no later than ***.  

Self explanatory. Any controversy on this point is not germane to my current argument

                                         

(4) There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice 

between only two responses. 

This is the really key point. There can only be one question. 

(5) The persons entitled to vote in the referendum must be the persons who would be entitled to vote in an

election for membership of the Parliament— 
(a) if one were held on the date of the poll at the referendum, or 
(b) if one were held on that date but alterations made in a register of electors after a particular date were 
disregarded. 


Again, any controversy on this point is not germane to my current argument.


(6) The referendum and arrangements in connection with it must be in accordance with Part 7 of the Political 
Parties, Elections and Referendums Act 2000 (referendums) as if the referendum were within section 101(2) of 
that Act, subject to any modifications specified in subordinate legislation


Ditto


So, for the avoidance of any doubt, and without stopping to give any credence to any suggestion  that the consultation itself might provoke any change to the UK Government's proposals on this key point, if there is a Section 30 then it's price will be that only one question can be asked.


Now, you might say, what if there is no section.30?  If there is no section 30 then the Scottish Government can't ask their preferred question. Don't take my word for that. They say that themselves! In their own Consultation Paper.


And,  more glaringly obviously still, any proposal to have any Referendum without a section 30 suddenly places everything back in an area of (at best) legal uncertainty. That's not just my opinion, it's the opinion stated at paragraph 1.5 of their own Consultation Paper which I quote above.


So, if the UK Government offer the SNP to enable a Referendum and the SNP reject it "so that they can ask a second question" that's got nothing whatsoever with a desire to ask a second question and everything to do with a desire to get mired in a legal minefield "preventing" a Referendum taking place at all.


QED


So why are people, even today, wittering on about a second question? For the same reason that sports journalists swallowed the hype of (Sir) David Murray about Rangers competing with Manchester United or Barcelona, despite the suspension of reality over the wider financial environment of Scottish Football that required. They were taken in by smoke and mirrors and, in the process, fed "succulent lamb".


Even David Murray however couldn't commandeer the full panoply of the Scottish local state to endorse his deceit, let alone do so in the Great Hall of Edinburgh Castle. At least however the sports journos were fed succulent lamb. For the politicos all that was on offer was mince.


There is not going to be a second question. And, unless Cameron forces the question, there is not going to be a Referendum at all.


You read it here first. And read it months ago.