Ten years ago the Constitution Unit produced a book called Scottish Independence: A Practical Guide, written by Jo Murkens and Peter Jones, and published by Edinburgh University Press. The product of an 18 month research project, it is still the most detailed study of the legal and political steps Scotland needs to take to achieve independence. But attending two conferences last week on Scottish independence, one in London and one in Edinburgh, has led me to change my views on some of the issues addressed in the two consultation papers issued by the Scottish and UK governments last month. In this post I order my comments by reference to the two governments’ shared objectives that the Scottish independence referendum should be lawful, fair and decisive.
In our book we drafted a referendum question which we thought was within the powers of the Scottish Parliament. It was very similar to the SNP government’s first proposed question in their 2007 White Paper :
‘The Scottish government should negotiate a settlement with the government of the UK so that Scotland becomes an independent state’.
That referendum would not be decisive: it would authorise negotiations, no more. Many distinguished constitutional lawyers in Scotland (Profs Christine Bell, Tom Mullen, Stephen Tierney, Neil Walker) believe that the Scottish Parliament has the power to legislate to hold such an advisory referendum. But other distinguished lawyers disagree, including Lord (Jim) Wallace, the Advocate General for Scotland, Aidan O’Neill QC and Prof Adam Tomkins. So did the House of Lords Constitution Committee in their report published in February Referendum on Scottish Independence.
Having read all the legal arguments, I now accept there is doubt about the validity of a referendum authorised solely by the Scottish Parliament. There would be legal challenges, brought by third parties, if not the UK government, which would go all the way to the Supreme Court. I don’t think it is desirable for the courts to get involved in such an intensely political issue. If that is accepted, the only way to resolve those doubts is for the UK government to offer to facilitate the referendum, as it has done in its recent White Paper. It has offered to do so either by legislating at Westminster, or by making a s30 Order under the Scotland Act to extend the powers of the Scottish Parliament to hold an independence referendum.
I have previously argued that the UK government should stay out of the Scottish independence game. It is an SNP project: they should let Salmond make the running, and allow him to hold the referendum at his own timing and on his terms. If they enter the field of play they risk getting tripped up. But once the UK government gets involved in facilitating the referendum it is hard for it not to get involved in decisions about the fairness of the question or the legitimacy of the result. There are several issues here: the wording of the referendum question; the timing; who supervises the referendum; whether there should be a second question on Devolution Max; and whether there should be a second referendum at a later time.
Fairness and legitimacy
On the wording of the independence question, Salmond’s latest proposed question ‘Do you agree that Scotland should become an independent country?’ seems simple and straightforward. But it can be criticised on two grounds. First, that it invites agreement. Second, not everyone will understand what is meant by ‘independent’. We learned when writing our book that many people understand ‘independence’ to mean greater autonomy. That is why our proposed referendum question spoke of Scotland becoming ‘a sovereign state, separate from the UK’. The SNP hated that: they say that ‘separate’ is used only by opponents of independence. But we would argue that it is necessary, for clarity. If the Electoral Commission are put in charge of the referendum, as the UK government want and the Scottish government seem likely to agree, they will advise on the intelligibility of the question. They take this duty seriously, testing different versions of the question, and they advised changes to the wording of the Welsh referendum in March 2011, and the English mayoral referendums in May 2012. The Scottish government and Parliament are not obliged to follow the Electoral Commission’s advice; but the UK government might withdraw its support if they decline to do so.
Timing of the referendum
This is primarily for the Scottish government to decide. The UK government should not intervene on the basis of arguments about damage to the Scottish economy, or which date is most favourable to the Unionist or nationalist cause. But the UK government does have two legitimate concerns. One is to avoid dates which coincide with elections: that can lead to a confused debate. The second is to avoid dates too close to the next UK general election, scheduled for May 2015. If the referendum is held in October 2014, and Scotland votes for independence, that presents a dilemma for the UK government and Westminster parliament. Should the UK 2015 election extend to Scotland (still part of the UK in 2015); and if so, for how long will those Scottish MPs serve in the next Parliament?
Multi option referendum, including Devolution Max
Should there be a multi-option referendum, with a second question on Devo Max? The UK government says No, because it would be confusing; the Scottish government says it has an open mind. I suspect the Scottish government wants a second question, because that creates a potential win:win, and gives them a very comfortable fallback. But there are several difficulties. One is the complexity of multi-option referendums: they risk over-complicating the debate and confusing the voters. For this reason, 98% of referendums around the world are on a binary question. Second is the complexity of counting the results: there are four possible voting systems for a three way referendum, each with different outcomes. The one regarded by electoral experts as the fairest, the Condorcet system, is the least likely to be chosen (a) because it was invented by a Frenchman (b) because it includes a choice between independence and Devo max, unpalatable to Salmond. The third difficulty is the uncertainty surrounding Devo Max: it suits the SNP to leave it gloriously undefined, and sadly it seems unlikely the Unionist parties are going to do the hard work necessary to come up with a Calman plus or Calman max package. The fourth is that Devo Max depends heavily on the UK government as the other partner: a detailed prospectus could only be produced after detailed negotiations with the UK government.
That leads me onto my final point. I wonder whether a realistic prospectus for independence could be produced save after negotiations with the UK government. Because the SNP now rightly talk about interdependence being a strong feature of independence. When pressed on important aspects of Scotland after independence, they often fall back on shared services: the pound, the Bank of England, sharing in the UK’s defence forces, etc. This formula has been dubbed ‘The Queen and other shared services’. The people of Scotland need to know if the UK will agree to share these services, and on what terms. The independence negotiations will cover very big issues: how to divide the National Debt, North Sea oil, will the UK support Scotland continuing in membership of the EU, etc. In our book we concluded that there needed to be a second referendum, once the detailed terms of independence had been hammered out, so the people of Scotland could decide if they wanted independence on these terms.
There is now a further argument for a second referendum, if the Scottish government insists on a multi-option referendum which can lead to an uncertain result. Using a second round binary referendum after the initial multi-option referendum was the solution in Newfoundland, Guam, New Zealand and now recommended by a US Presidential Commission for Puerto Rico. It allows time for the favoured option to become better defined, and brings the clarity and focus of the binary back to the final debate and vote.
But the Scottish government and the UK government both reject the case for a second referendum. The Scottish government rejects it as an obstructive device, placing a further obstacle in the way. The UK government think that if the people of Scotland vote Yes in the first referendum, even if it were only an indicative referendum to trigger negotiations, that would create an unstoppable political momentum which could not be reversed. So am I being too logical and rational in arguing for a fully informed democratic debate before the final decision: is the second referendum another issue on which I should consider changing my mind?
 The Scottish Executive, Your Scotland: Your Referendum (January 2012), Available at http://www.scotland.gov.uk/Resource/0038/00386122.pdf
 The Scotland Office, ‘Scotland’s constitutional future’ HM Government (January 2012), Available at http://www.scotlandoffice.gov.uk/scotlandoffice/files/17779-Cm-8203.pdf
 The Scottish Executive, Choosing Scotland’s Future: A National Conversation (August 2007), Available at http://www.scotland.gov.uk/Resource/Doc/194791/0052321.pdf
 Constitutional Law Group, ‘G Anderson et al: The Independence Referendum, Legality, and the Contested Constitution: Widening the Debate’ UK Constitutional Law (31 January 2012), Available at http://ukconstitutionallaw.org/2012/01/31/gavin-anderson-et-al-the-independence-referendum-legality-and-the-contested-constitution-widening-the-debate/
 K Stacey, ‘Jim Wallace: Salmond holding his own referendum would be undemocratic’ Financial Times (January 16 2012), Available at http://blogs.ft.com/westminster/2012/01/jim-wallace-salmond-holding-his-own-referendum-would-be-undemocratic/#axzz1otiZlWSm
 S Johnson, ‘Aiden O’Neill QC: Independence Referendum is probably illegal’ Telegraph, (8 November 2011), Available at http://www.telegraph.co.uk/news/uknews/scotland/8876213/Aidan-ONeill-QC-Independence-referendum-is-probably-illegal.html
 A Tomkins, ‘The Scottish Parliament and the Independence Referendum’ UK Constitutional Law (12 January 2012), Available at http://ukconstitutionallaw.org/2012/01/12/adam-tomkins-the-scottish-parliament-and-the-independence-referendum/
 Select Committee on the Constitution, ‘Referendum on Scottish independence’, 24th Report of Session 2010-2012 HL (17 February 2012), Available at http://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/263/263.pdf