The row over the Scottish Secretary, Michael Moore’s call for a double-headed independence referendum took me back fifteen years to the torrid summer of 1996 when Labour wrestled with the same problem. Tony Blair had decided that a referendum was required to ensure that a Scottish parliament was indeed“the settled will” of the Scottish people. At a stormy meeting of Labour’s Scottish executive in Stirling, the shadow Scottish secretary, George Robertson, as he was then, announced that Labour was minded to have two separate referendums on devolution. The idea was shot down almost as fast as Moore’s twinarendum on independence this week. Which only confirms that those who fail to learn from history are condemned to make the repeat the mistakes of the past.
The argument was much the same in the 1990s: surely you can’t just have a general endorsement of the principle of setting up a Scottish parliament? How can Scots know that they want to take this step before they see the actual legislation on home rule, the powers of the proposed parliament and its relationship to Westminster? It’s a ‘pig in a poke’. But in 1996 Labour ended up having a single pre-legislative referendum on devolution and tax powers after realising that holding two would almost certainly cause confusion and play into the hands of the SNP..
Where constitutional change is concerned, clarity is king. To make radical and probably and irrevocable changes to the constitution, the people have to know what they are voting for and that their actions will have real consequences. Maybe isn’t good enough. Holding a second referendum lowers the stakes in the initial preferendum. Voters can freely vote ‘with their hearts’ knowing in their heads that they can always undo the decision once they see what is actually on offer. It becomes almost a lifestyle choice, and identity question.
But if and when, after the independence legislation has gone through both parliaments, Scots vote No – perhaps on the grounds that they don’t like the share of oil revenues or the division of the national debt – then there is an instant constitutional crisis. The UK government would try to argue that the second referendum negates the first, and attempt to drop the whole thing. The SNP would argue, on the contrary, that the decision has already been taken in principle and that only the details are objectionable to Scots. Therefore, they would demand a better deal, and another referendum to endorse it. Stalemate.
The Nationalist government in Edinburgh would claim that the UK government had violated the founding principle of the United Nations that all peoples have a right to self determination, and might even declare UDI. At the very least, there would likely be a “neverendum” as the UK and Scotland held further ballots to decide what the Scots actually voted for. This is why the accepted method of resolving great constitutional issues in Britain has always been the single referendum – as inthe EEC referendum in 1975 and the Scottish devolution referendums in 1979 and 1999. Indeed, there are few if any precedents anywhere in the world for holding two referendums to dissolve a union. The oft-cited “velvet divorce” of the Czech Republic and Slovakia in 1992 involved no referendums at all on.
Which makes it all the more extraordinary that some of Britain’s leading constitutional authorities, like Professor Vernon Bogdanor, of Oxford University, and Professor Robert Hazel of the Constitution Unit at UCL appear to be so keen on the idea. They argue that because the Scottish parliament can only hold an “advisory” referendum, since constitutional affairs are reserved to Westminster, another ballot is necessary on the concrete proposals put before the two parliaments. It only goes to show, i fear, that some very clever people can sometimes allow logic to take them beyond common sense.
Conservatives sources are insisting that Moore’s law is not endorsed by the UK government, which suggests that there is a dangerous disconnect between the UK coalition partners. You simply cannot wade into this constitutional minefield with the left hand not knowing what the right hand is up to. Tomorrow’s visit to Scotland by the deputy Prime Minister, Nick Clegg, is going to be very interesting. Almost anything he says will make a story: if he backs his Scottish Secretary he rejects the views of his government, if he doesn’t, Michael Moore’s future must surely be in doubt.
Will it affect the referendum in 2015/16? The affair has already earned a place in nationalist folklore as an attempt by unionists to rig Scotland’s independence referendum, rather as the 40% rule rigged the 1979 devolution referendum. That piece of electoral gerrymandering merely provided ammunition for nationalists who claimed that the UK state could not be trusted. History is repeating itself as farce. The SNP, are playing a very subtle semantic game, blurring the meaning of independence, the better to encourage Scots to accept it as the natural and normal path for Scotland to take. The SNP’s proposals for a new, cooperative “social union” with the UK is encouraging Scots to think of independence less as separation and more as a recognition of a pre-existing constitutional reality. Scotland after all remains a nation – one of the two nations in the 1707 Union. Scotland has always had its own independent legal system – a point made very forcefully during the row about the apparent attempt by the Supreme Court in London to over-rule convictions in the High Court in Edinburgh. Scotland has always had its own education system too, based on the comprehensive principle – hence Alex Salmond’s almost religious avowal of free higher education and “till-the-rocks-melt” rejection of tuition fees.
This is all part of the theatre of sovereignty – an exercise in national consciousness raising, like keeping the Queen as head of state and calling her “Queen of Scots”. Meanwhile, the unionists have been given opportunities to trip over themselves, which they have seized with alacrity. If the Unionists want to get back in the game, they are going to have to up their game. There is a wind of change blowing across the UK, and it could blow them away.