The end of the phoney war

The battle over Scotland’s constitutional future stepped up a gear or three this week, with the UK Government declaring that a “legal, fair and decisive” independence referendum can be held only with explicit backing from Westminster. The SNP, unsurprisingly, demurs. A legal referendum? The Scotland Act of 1998 makes plain that the Scottish Parliament cannot pass legislation that “relates to” a list of specified exemptions (the “reserved matters”), including “the Union of the Kingdoms of Scotland and England”. The Whitehall interpretation – set out in a new consultation paper – is that even a non-binding referendum asking voters about independence would “relate to” this reserved matter. Therefore, an Act of the Scottish Parliament authorising such a poll would be unlawful. Included in the UK government’s consultation paper is a draft piece of legislation that would place an independence referendum held by the Scottish Parliament on an unambiguous legal footing. But with a number of strings attached, which the SNP rejects. The SNP claims that holding a merely “advisory” referendum asking, for instance, whether “the powers of the Scottish Parliament should be extended to enable independence to be achieved” (the wording in the SNP’s 2010 draft bill) would not be unlawful since it would only authorise the Scottish Government to enter negotiations with Westminster over the terms of separation. No doubt both governments have received legal advice to back up their interpretation. But this is untested territory. If the SNP pressed ahead with legislation without explicit statutory backing from Westminster, the legality of its move could only be ascertained in the Supreme Court, an unprecedented escalation that should surely be seen as a last resort. A fair referendum? The coalition further argues that any referendum must be “provided for, organised, regulated and conducted in a fair way”. This sounds uncontroversial, but here too there is scope for conflict. The consultation paper addresses two issues under this heading. First, the franchise. The SNP had announced plans to lower the voting age to 16 for the referendum, but the coalition argues that the standard Holyrood franchise should be used. The second issue is about regulation of the referendum. The Scottish Government’s draft bill proposed a new Referendum Commission to oversee the campaign and vote. But the coalition is insisting that the UK-wide Electoral Commission (which answers to Westminster) should do the job. One issue that may arise relates to the wording of the referendum question, which the Commission would have to approve. The UK government in any case wants the ballot paper to pose a straight yes/no question on independence (blocking plans for a middle-way enhanced devolution option known as “devo max”). But even so, the question might be worded in a variety of ways, some more conducive to a “Yes” vote. If the Electoral Commission were to rule against the Scottish Government’s preferred phrasing, there would be a risk of further politicisation of the whole process. The Electoral Commission also regulates campaign expenditure in any referendums held under Westminster legislation. Typically, fixed spending limits are imposed on parties and officially-designated campaigning bodies, to whom state funding may also be provided. The UK government can also override the views of the Commission with the backing of Parliament. One can envisage how such issues could lead to controversy, for instance if the SNP was blocked from spending the war chest it is building up. A decisive referendum? The coalition claims ongoing uncertainty over Scotland’s constitutional position is harming the Scottish economy, and that the referendum should be designed to resolve the matter decisively. Again two sub-headings underpin this. One relates to timing. The coalition initially indicated a preference for a 2013 vote, and has left open the option of imposing a legal time limit. The SNP, in response, announced that autumn 2014 is its preference. This seems a relatively minor point to get into a tussle over, and it now appears that the coalition may concede this point. Finally, as noted, the coalition argues that the “devo max” option should not be offered to voters, since it would muddy the waters. Instead this poll should simply deliver a straightforward verdict on independence. The problem is that many opinion polls have found that some type of “devo max” formula (extensive fiscal autonomy, but retention of British defence and foreign policy, for instance) is actually the most popular option among voters. So defeating the nationalist cause in the referendum would hardly settle the Scottish constitutional question. And neither would a yes vote on independence, since this would need to be followed by a series of highly complex negotiations about matters including the division of the national debt, oil reserves, tax and welfare systems, and the future of the UK’s nuclear bases in Faslane. A referendum on independence now appears a certainty. But years of political (and possibly legal) dispute lie ahead, with the referendum itself marking not the end of the debate, but at best, the end of the beginning.