I have a cunning plan
Is a Referendum Bill a good idea? Suggestions have been made from surprising quarters that it is not.
Alex Massie has tweeted “It’s likely to be perceived as constitutional gerrymandering and will push people towards independence” https://twitter.com/PhantomPower14/status/1566375080086626309
Likewise Stephen Daisley, “Across eight ComRes polls between May 2021 and June 2022, median combined support for another referendum within five years stood at 49 per cent. Across seven Panelbase polls between March 2021 and April 2022, the figure was 54 per cent. So, 60 per cent is a hurdle but you wouldn’t have to be Aries Merritt to clear it.”
Even more unexpected is this from Adam Tomkins (https://twitter.com/ProfTomkins/status/1566144181424295936) that a Bill to require more than half the electorate to vote Yes would be “A Bad Idea”. (in passing, if you look this up from the above link, you will see that even Alex Gallagher agrees with Tomkins’ view).
However, Tomkins has been more expansive in his latest weekly column in the Herald – “Nicola Sturgeon is changing the Nationalist mood music. Unionists had better beware” (https://www.heraldscotland.com/politics/20848167.adam-tomkins-nicola-sturgeon-changing-nationalist-mood-music-unionists-better-beware/”.
Here Tomkins is pretty scathing about Truss (remember this is more than 48 hours before she is declared the winner of the Tory Party beauty contest) – “Liz Truss is inexperienced, liable to gaffes, addicted to shooting from the hip, uncontrolled, and apt to speak (and act) impetuously.” In contrast “Nicola Sturgeon, when she’s at the top of her game, is none of these things.” Now, however true this might be, consider that it is a former Tory MSP writing it?
Pejoratively, I think, what Tomkins is suggesting is that if Boris Johnson was seen as the best recruiting sergeant for the independence cause, with Liz Truss in Downing Street things are going to move up at least one gear.
The Prof’s prescription for the independence movement was “not to push ahead with a referendum just now, but to build that case – steadily, slowly, patiently – that the inexperience, the gaffes, the lack of control, and the impetuousness we are about to see from the new UK government is something Scotland, one day, could be free from”.
Tomkins refers us earlier on to the fate of the Quebec independence movement, that the “second defeat for the separatists (as they were called in Quebec) proved decisive, indeed terminal. The secessionist cause died after 1995. Go to Quebec now and you won’t find it.”
He goes on to point to the possibility of this fate for Scotland, that,
“Ms Sturgeon knows, if she loses indyref2, there will never be a third attempt. Lose twice and it really is over. Not for a generation. Not for a lifetime. Just over. Fatally. Forever.”
In our lifetimes, probably true enough, I think. Or fear!
However, Tomkins never mentions the Clarity Act, and my immediate reaction to his article was basically “nice try Adam. We sit back and wait for Westminster to do the job for us with their own incompetence, while meantime you guys get on putting controls in place, that make independence impossible”. The problem with this of course, is that 24 hours later Truss tells us about her own Clarity Act (to be called the Referendum Act).
Thus, even Unionist commentators consider that something like the proposed Bill would serve only to increase support for the independence cause
The difficulty that this poses us is that no matter how correct such as Massie, Daisley and Tomkins are, if
- the proposed powers of the Referendum Act are in place
- even if there is an increase in support of the type feared by Daisley
there is no requirement for Westminster to grant a referendum – only “consider it”. Even if there were a referendum, they have the powers to require their own question – let’s suppose the SIU one which we know gives them an advantage – to be used. It is against that legal scenery that we have to achieve independence, and whatever else it is, it is not a level playing field.
Adam Tomkins in his Herald article referred to before, observes correctly that the independence movement in Quebec has much less support than in 1995, putting this down to the disappointment of the second defeat that year. However, and bearing in mind the powers of the Clarity Act, how much support was lost because many looked at the powers of the Act and asked themselves if Quebec could ever fight its way out of this? Was it just too high a hill? Does “legal imprisonment” work? Can a people be held within a Union by legal constraint? Might at least some of the Scottish independence movement come to a similar conclusion.
Nicola Sturgeon may be right in her response to the reports of Liz Truss on Sophie Ridge on Sky, that “It is not a sign of strength to talk about blocking a referendum or as some reports today suggest gerrymandering the rules for a referendum, that is a sign of fundamental weakness … It is a changing of the basic rules of democracy that we have all abided by for our entire lifetimes and long before that. … Imagine the furore, the literal foaming at the mouth, in the Conservative Party if anyone had considered that for the Brexit referendum…Just because you fear losing a democratic contest, it is not an excuse or does not make it acceptable to rewriting the rules of democracy.”
All 100% true, and, as such, I would agree with the First Minister 100%. BUT, how much further forward does this take us to secure a referendum when the legal reality would be that no matter the level of support for another referendum, Westminster would only be obliged to “consider” it? What chances do we have of winning a level-playing-field vote when Westminster has significant powers over the “referee” (Electoral Commission).
In short, with a Referendum Bill on these lines, and Westminster’s powers over the Electoral Commission, how close is the Scottish independence movement to the position of the Mouvement souverainiste du Québec with regard to the Clarity Act?
Political debate is one thing – we might win that – many commentators argue Yes won the 2014 debate. We just lost the vote. We might win the political debate on a Referendums Bill, but if it becomes an Act that is the legal background against which we have to make progress. Debate is about uncertainties, legal debate is about finding legal certainty, and if that is in place then legally Westminster holds most of the good legal cards.
Will it become an Act? Have a look at this https://www.youtube.com/watch?v=bJLc–k5Jrs. The issue is less what Truss says as the reaction of the audience, cheering her lustily. This kind of legislation will play well in England, particularly important when right now the Tories don’t have a lot of topics that do play well. Let’s not kid ourselves, Scotland is not popular in England. They subsidise us; don’t you know? We are always moaning, and see that bloody attention seeking woman, wee Jimmy Krankie, who is their First Minister ….
In short the proposals may be about as popular in Scotland as a pork chop in a Synagogue, but how much would the Tories care? Would losing their six MPs in Scotland not just be collateral damage, a price worth paying to maintain the “precious Union”? But, there is a strong likelihood it would play well in England where the Tories do have a lot to lose.
So why hang on to us, particularly a few weeks after the Groundhog Day, when GERS is published, showing that Scotland is responsible for some percentage of the UK deficit that is way above our population share? Well, I am, perhaps surprisingly, obliged to Murdo Fraser MSP for setting out some of the reasons why for GB News a few weeks ago.
- 1/3 of UK landmass
- Half of UK territorial waters
- “The magnificent resource that is Scottish fishing waters”
- North Sea oil and gas
- Renewable energy potential
- Scotch whisky and Scotch salmon
- The “opportunity to study at some of the world’s greatest Universities”
- “The joy of having the Scots as part of the British nation”
Is it any wonder they don’t want us to go?
Clearly, their aim is to maintain the Union, and, if the recent reports are true, they will do so if necessary by putting in place obstacles which are in practical terms difficult to achieve. And if that fails then what happens is up to the judgement of Westminster to decide whether or not to pass any negotiated agreement about Scottish independence. How much hope do the Brexit shenanigans give you that they would legislate to this end?
Perhaps we need to recognise that the time for debate is drawing to a close (ie not yet, but soon). The legal right of Holyrood to organize its own referendum was described as high-level, three-dimensional chess. Well, a Referendum Act gives Westminster the power to close that game down.
I must have mentioned this before, but it remains the best statement of where I think we are if Truss follows through on the proposals suggested at the weekend (or indeed, even if she doesn’t). Almost four years ago, “In taking the radical road with AUOB”,
Craig Murray wrote “One day, all supporters of Independence are going to be forced to get their heads round the fact that London is going for the Madrid solution, and we are not going to achieve Independence without using peaceful, non-violent routes which are nevertheless going to be deemed illegal by the Establishment.”
From this there are two questions, which really are not for one person, but should be answered through social dialogue.
- How do we propose to achieve independence if not via agreement with Westminster?
- How far are we prepared to go to act contrary to law (though peacefully) if this proves necessary?
That is for another day, but if it prompts personal views to be left for discussion, then this has served its purpose.