The Scottish independence referendum: two points of controversy

The UK political parties have suddenly woken up and discovered an imminent threat to the integrity of the United Kingdom: the Scottish SNP government’s pledge to hold a referendum on independence for Scotland within two or three years. We have seen a typically aggressive and politically insensitive opening barrage from David Cameron, followed by markedly more conciliatory exchanges between the Scottish Secretary at Westminster and Scotland’s First Minister, Alex Salmond, in Edinburgh, together with the publication of a UK consultation document (pdf) setting out the UK government’s proposals. From these it has become clear that there are only two really difficult issues separating the Scottish and UK governments on the question of the referendum: its timing, and the questions to be asked in it. There are other differences between the governments, but it looks as if those should be able to be resolved in the discussions between them to which both governments have already agreed.

Timing of the referendum

Alex Salmond has now said that he proposes to hold the referendum in the autumn of 2014. The British government position is that it should be held much earlier, on the grounds that it’s desirable to end the uncertainty about Scotland’s future as soon as possible, since such uncertainty inhibits investment and other business decisions. The UK government also claims that the real reason for the SNP’s wish to postpone the referendum until late 2014 is that there is currently no majority in Scotland for independence, and that Salmond hopes that support for independence will grow sufficiently for him to get a majority for it in a referendum held later rather than sooner. No doubt this is indeed the case: but there is nothing disgraceful or unusual about timing a referendum in such a way as to maximise the chances of getting the result you want. Since this is primarily an issue for Scotland and the Scottish people, it seems unreasonable and oppressive for a decision on timing to be forced on Scotland by the UK government against the wishes of the duly elected Scottish government.

The device which the UK government proposes to use in order to force the referendum on Scotland earlier than the Scottish government wishes is the inclusion in the draft Order in Council empowering Scotland to hold the referendum of a deadline, after which Scotland’s power to hold a referendum on independence will lapse. It seems to me clear that the Scots have every right to resist this imposition on their government’s right to decide the timing of the referendum. If the UK government persists in trying to make this a condition of giving the Scottish government the legal power to hold a referendum, the effect is likely to be to increase support for Scottish independence among those who are at present undecided. It will be seen as a prime example of ‘English’ interference in Scottish affairs.

The questions to be asked

Alex Salmond has repeatedly suggested that “at present” there is a case for including among the options on offer in the referendum what has become known as ‘devo max’ – i.e. a substantial increase in the powers devolved from Westminster to the Scottish parliament and government, including especially additional powers over taxation and borrowing. The UK government opposes this, claiming that the only way to be sure of getting a clear and decisive result is to put to the Scottish people in the referendum a straight choice between independence and the status quo.

Opinion polls and most commentators agree that there is considerable support in Scotland for some kind of devo max, and that if devo max were to be offered as an option in the referendum, it would probably attract considerably more votes than straight independence. Alex Salmond’s (distinctly non-committal) suggestion that devo max might be offered as an alternative to independence is generally, and probably rightly, regarded as an insurance policy against the SNP ‘losing’ the referendum in the event that there is no majority for independence. The UK government presumably hopes that by seeking to restrict the choice in the referendum to only two options, independence or the status quo, the issue of independence for Scotland will be put to sleep for a generation: at present the opinion polls suggest that barely a third of Scottish voters would vote for independence if the referendum were to be held now. Westminster’s strong objection to the inclusion of a devo max option is less easy to understand. The fear of an inconclusive result if there are three options on the ballot paper (independence, devo max, or the status quo) may be genuine, but there seem to be no grounds for overruling the Scottish government’s judgement on this. Equally, it would be difficult to argue that a generally acknowledged wish for greater devolved powers among the Scottish people should be ignored or denied expression. This would inevitably be interpreted as ‘English’ unwillingness to give up more powers to interfere in Scotland’s internal affairs.

The UK government’s consultation paper includes in its draft Order in Council a provision that “There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.” Like the crude attempt to overrule the wishes of the Scottish government on the timing of the referendum, this proposed restriction of the number of options to be offered in the referendum, contrary to the provisional intentions of the Scottish government, seems likely to be resented in Scotland, and to run the risk of encouraging additional support for independence.

Status of the referendum

Alex Salmond has suggested in the past that while Scotland has no legal power under devolution to hold a binding referendum on independence, there is no reason why the Scottish government and Parliament should not hold anadvisory referendum to establish the wishes of the Scottish people on the independence issue. The UK government contests this view, arguing that even an advisory referendum would exceed the powers of the Scottish parliament and government under the devolution laws. The UK consultation document maintains that the distinction between a binding and an advisory referendum is ‘artificial’: either, it says, would be open to a challenge in the courts as being beyond the powers of the Scottish Parliament and government.

Whatever the strict legal position on this, the reality is surely that the initial referendum on independence will in practice be advisory only. If its result shows a clear majority of Scots in favour of independence, the next step will have to be a difficult and probably protracted negotiation between Holyrood and Westminster to determine the terms of the separation between Scotland and the rest of the UK. Innumerable knotty issues will need to be settled, ranging from how the U.K.’s national debt and the revenues from North Sea oil are to be divided up, to the future of the Scottish regiments in the British Army and British defence installations in Scotland, with hundreds of other practical matters requiring decision in between. Much will depend on the attitude of the UK government at the time – not necessarily the present coalition government of David Cameron – to the terms that are to be offered to Scotland: these could be generous and constructive, in the interests of future amity and collaboration between the two countries after independence, or vindictive and punitive, reflecting the anger and resentment that will no doubt be felt by many in the rest of the UK, especially in England, over having been spurned by the Scots. If Westminster adopts a hostile and confrontational attitude to the independence negotiations, it might even prove impossible to reach agreement on every detail of the arrangements for Scottish secession. Such a deadlock would prompt a constitutional crisis of immense proportions. Whatever the legal position, it would obviously be intolerable for the English (and the rest of the UK) to appear to be resisting the clearly and democratically expressed wish of the majority of the Scottish people for independence.

Assuming, however, that agreement were eventually to be reached on the terms of Scottish separation, those terms (especially if some of them were controversial and likely to be widely opposed in Scotland) would presumably need to be put to the Scottish people for acceptance or rejection in a further referendum, which this time would have to be legally binding. At the first referendum, whether in the autumn of 2014 or earlier, Scots would be voting for or against independence without knowing in any detail what independence would actually entail, since the full implications of independence will remain to be negotiated with Westminster. Consequently, the first referendum, if it results in a majority for independence, cannot be regarded as a binding decision that Scotland must become independent: it will simply establish the wishes of the Scottish people as a necessary basis for the subsequent negotiation with Westminster of the nuts and bolts of secession, if the referendum goes that way. The UK consultation document is misleading when it describes the distinction between an advisory and a binding referendum as artificial: the distinction is real, but it seems to have no practical effect, since in the nature of things the forthcoming referendum can’t itself be binding. It must be subject to the outcome of subsequent negotiations, if it results in a majority for either devo max or independence. There is however no reason why this should become a bone of contention between the UK and Scottish governments: both these have already agreed on the need for consultation between the two governments over the power to hold a referendum and to determine such matters as its timing and content.

The underlying issue: Scottish independence

It would of course be wrong to suggest that there is no fundamental or irreconcilable difference between the principal UK parties on the one hand and the SNP government at Holyrood on the other. On the substantive issue of Scottish independence, they are clearly at opposite poles. The debate on the practical implications of Scottish independence, including the question of the terms on which Scotland could expect to be admitted to the European Union as a new full member, has only just begun in the UK outside Scotland. It’s possible that as these issues get to be clarified in the course of the coming debate, enthusiasm for independence in Scotland may be somewhat damped down. Alternatively, if the UK government’s current hard line on timing and the questions to be put in the referendum continues, it is likely to generate such resentment in Scotland that enthusiasm for independence may actually continue to grow. To a large extent, that is in the hands of Mr Cameron and his colleagues. But it provides the UK Labour Party, which also of course wishes to preserve the integrity of the United Kingdom, with an opportunity to influence the UK government’s approach to the referendum in the direction of co-operation and moderation. It’ll be interesting to see whether Ed Miliband has the breadth of vision to renounce party point-scoring and to assume the role of conciliator in the national interest at a time when the future unity of the country is more seriously challenged than for many decades.