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politics.Scotland. Referendum. Clarity Act. SNP. Alex Salmond. Devo max. independence.

The Clarity Act is as clear as mud.

  There is an air of quiet desperation in Whitehall as civil servants and UK government ministers try to out-manouevre Alex Salmond over the referendum.  They feel he’s been getting away with murder, insisting on holding it at the time of his choosing and with an unspecified number of questions. 
    Westminster has finally realised that including “devo max” on the ballot paper as well as independence would leave Salmond with a win win  – since he would happily settle for fiscal autonomy for Holyrood if independence is rejected, as opinion polls suggest it would be.  Hence the threat to take it out of Scottish hands altogether and stage a pre-emptive independence referendum organised by the UK Electoral Commission.  After all, as constitutionalists like Oxford Professor Vernon Bogdanor keep telling us, Holyrood doesn’t have the legal authority to run a binding referendum because the constitution is reserved to Westminster.  Why should England dance to the Nationalist tune?  It is a complaint uttered by UK commentators and academics around bodies like the Constitution Unit at UCL, who really think it’s time to jolly well stand up to these separatists, and beat them at their own game
   The Labour minister, Margaret Curran, has wisely tried to head off this pre-emptive referendum which would of course play directly into the hands  of the SNP.  What better than for London to be dictating the constitutional destiny of Scotland? The SNP is hoping against hope that Westminster will make their day. The problem with the metropolitan political and academic elite – who only read the ultra-unionist headlines in The Scotsman – is that they have very little understanding of political dynamics north of the border, or how much attitudes have changed here over the last five years.  The SNP has an absolute majority in Holyrood, and any attempt to impose a referendum would be blocked.  There would have to be a consent motion passed by the Scottish Parliament for any legislation initiating a Westminster-led referendum.    
  So that is a non starter.  The next trick is to introduce a Clarity Act such as the one passed by the Canadian Government in 2000, though never recognised by the province of Quebec which inspired it.  This was the product of an examination of the legality of secession by the Canadian Supreme Court, and was seen by many Quebecers as an attempt to stifle their independence movement.   The Clarity Act states that subordinate regions or principalities have no legal right to secede. However, if a referendum is passed in which the question is clear, and there was a substantial though undefined majority, then the other states in the union have a duty to respond to the demand for autonomy.   It is a masterpiece of legal sophistry, open to almost any interpretion, from sending in the tanks to endorsing independence on the basis of a majority of one.  The latter is how Quebec separatists see it. 
   The Clarity Act, a reaction to the knife-edge 1995 Quebec referendum has never tested, so no one really knows what it means in practice.  It is the work of constitutional lawyers and, like economists, if you put twelve of them in a room you will get twelve different interpretations. But any attempt to use constitutional law to foil the Nationalists will backfire as assuredly as holding a pre-emptive referendum. The SNP holds most of the cards. Unionists would be far better advised to sit on their hands, and wait to see what Alex Salmond comes up with in 2014 – though I suspect that we’ll be hearing about the question or questions long before that.


From the Herald…..

 Who does Alex Salmond want to win the Scottish Labour leadership contest?  Tom Harris MP.  Well, it stands to reason: the script writes itself.  Labour is so feeble that it has to look to the backbenches of Westminster to salvage its operation in the Scottish Parliament.  “Uncle” Tom Harris will be cast as a London placeman, a political bag-carrier, an agent of unionism, sent north to crush the rebellious Scots. 

  All very unfair of course, since Harris is as Scottish as Alex Salmond and sits for a Glasgow constituency.  Moreover, the former Labour minister looks the most able candidate.   Expert in the use of new media, Harris  has made a significantly greater impact than the other two MSP contenders, Ken Macintosh and Johann Lamont.    But politics isn’t fair, and the SNP know that there’s nothing that the Scots voters hate more than the thought that they are being told what to do by Westminster.  That,  more even than the personality of Margaret Thatcher, was what all but killed the Tories in Scotland. The idea that a UK prime minister was saying no to the creation of a Scottish parliament while inflicting the poll tax and industrial closures on Scotland. 

  Yes, I know – that’s all ancient history.  David Cameron is no Margaret Thatcher, and has endorsed greater powers for Holyrood through the Scotland Bill, currently grinding its way through Westminster.  But the dynamic remains the same: resentment of London interference – real or imagined – is what has driven Scottish politics for four decades.  And it may yet drive Scotland out of the union,  because it looks as if London may be about to make the same mistake yet again over the referendum on independence.

   In despair at the abject failure of the Scottish unionist parties to deal with Alex Salmond, a united front is being cobbled together in Westminster between some Scottish Labour MPs  Liberal Democrats and the Tories to take the referendum out of nationalist hands.   The idea  is to stage a single question referendum – separation: yes or no – to pre-empt Alex Salmond’s promised plebiscite in 2014/15.   Tom Harris, says Salmond should not be allowed to stage what he calls a “rigged” referendum by including “devolution max” on the ballot paper. And the Labour MP has made clear on his blog that if Salmond refuses to name the date, then he would support a move by Westminster to name it for him.   

   Almost the first act of the new Scottish Tory leader, Ruth Davidson, has been to endorse this idea of a pre-emptive referendum,  which Number Ten is now actively examining.   After all:  if the nationalists really want their referendum,  why not,as the former Scottish Labour leader Wendy Alexander put it,  ‘bring it on’?  Why wait on Alex Salmond’s pleasure?   Well, for one thing, because only the day before yesterday, Labour and the Tories were saying that an independence referendum would be destabilising and threaten the integrity of the union.  Indeed, Gordon Brown, disowned Ms Alexander’s call very publicly at Question Time.    As for the Liberal Democrats, the Scottish Secretary himself, Michael Moore, in May rejected the idea of Westminster holding a referendum. “We will not be bringing forward a referendum ourselves”,he said. “It’s entirely a matter for the Scottish Government.” 

    So what’s changed?  Well, obviously that it looks as if the SNP may win it – or at least not lose, since Salmond supports devolution max as well as independence..  There’s an air of desperation in Westminster at the way Salmond has been allowed to turn the referendum into a win win.     But the idea of a Westminster-led referendum is fraught with risk. The SNP will claim it is illegitimate because the Scottish voters voted in overwhelming numbers in May for the SNP’s policy of holding a referendum towards the end of this parliament.   I don’t know whether Alex Salmond really told the chancellor George Osborne, that he would use the police to “sabotage” a Westminster referendum, but he would certainly use parliament so to do.   Such a move by would require a consent motion from the Scottish parliament  – much as the current Scotland bill requires to be voted through by both parliaments.  The SNP has an absolute majority in Holyrood and would therefore withhold consent.  
   If Westminster went ahead regardless, the Nationalists’ first option might be to call on Scots to boycott “London’s referendum” on the grounds that it doesn’t include the option of “devolution max” or federalism.   This is repeatedly cited by Scottish voters as their favoured choice – as in this week’s TNS poll for the BBC’s Politics Show.  The SNP’s  aim would be to depress the turnout so that, a little like Brian Souter’s Keep the Clause referendum on Section 2a in 2000, it can be dismissed.

    Alternatively, there’s the possibility that many Scots who seek change short of independence might be persuaded to vote for separation on the grounds that they are not being given a fair choice.   Independence is anyway a flexible concept, and the SNP say nowadays that they would keep the Queen, the pound, the British army link and the UK diplomatic corps.  Alex Salmond will campaign for what he calls a new “social union” with England, which could boost the “Yes” vote. Either way, the referendum would be unlikely to resolve anything. 
   The move to snatch the referendum from his grasp has coincided with what looks like a series of co-ordinated negative attacks on the economics of independence.  Every day there seems to be a new report emanating from Westminster, suggesting Scotland would be bankrupt, would not be allowed automatic entry into the European Union, or if it were, would be handed a bill for billions and be forced to adopt the euro.  Citigroup last week warned investors not to put their money in Scottish renewables. The former Labour energy minister, Brian Wilson,  has trashed SNP policy on electricity generation.   It certainly sounds as if the campaign has already begun.   
   There’s no doubt though that, constitutionally, Westminster has the right to mount a referendum, but this is all about politics and history. And I can hardly think of anything worse for Labour than to ally with the Tories to foist a pre-emptive referendum on Scotland.   Far better for the unionists to sort themselves out, wait a couple of years, and take on the SNP by force of argument, rather than constitutional force majeure.   

About @iainmacwhirter

I'm a columnist for the Herald. Author of "Road to Referendum" and "Disunited Kingdom". Was a BBC TV and radio presenter for 25 years - "Westminster Live" and "Holyrood Live" mainly. Spent time as columnist for The Observer, Guardian, New Statesman. Former Rector of Edinburgh University. Live in Edinburgh and spend a lot of time in the French Pyrenees. Will that do?


11 thoughts on “The Clarity Act is as clear as mud.

  1. "who only read the ultra-unionist headlines in The Scotsman "I used to get annoyed at The Scotsman for it's blatant anti SNP bias but don't really mind it now. As long as 'decision makers' doon sooth believe it's fairy tale view of life in North Briton then it will work in the SNP's favour as it will render the Unionists totally unprepared for the referendum when it comes.

    Posted by george | November 13, 2011, 6:00 pm
  2. Margaret Curran is a minister now?

    Posted by RevStu | November 13, 2011, 7:09 pm
  3. 'The Clarity Act states that subordinate regions or principalities have no legal right to secede.'Surely, Iain, a Clarity Act as described cannot have any bearing on the UK situation.Despite the way things appear, the Act of Union was between two equal partners.Bill Pickford

    Posted by Anonymous | November 13, 2011, 7:41 pm
  4. First it was the 10 billion windfall tax on Scotland's oil assets; imposed by Westminster without even a 'By your leave'.Then followed Westminster's sabotaging of the Carbon Capture Technology pilot scheme at Longannet power station.The first analagous to the 'Boston Tea Party' which preceded the American War of Independence.The second, given the Guardian's recent depressing scenario on climate change, close to a crime against humanity. But then it was the turn of the financial giant 'City Group' – Procastinating over the specifics and the date of the independence referendum would damage Scotland's economic prospects.And only today Chancellor Osborne tells us that friends in high places, whose names cannot be revealed, take the same view. The only conclusion to be drawn is 'The gloves are off'.But we scots should not let our resolve be undermined by these siren voices – In yesterday's edition of the Guardian it seems the engineering giant Rolls Royce is about to branch out into tidal power and in a big way!To quote: '…In a modest office block in Bristol….. Tidal Generation, a Rolls Royce subsidiary, is developing underwater power turbines that could, with the help of utility firms [SSE?] and our government[s], provide 7.5% OF THE UK's electricity….Robert Stevenson, Tidal Generation's chief executive, says tidal energy could become a mass-market phenomenon by the end of the decade….."We think it has tremendous potential," And what adds spice to this announcement is that Rolls-Royce has manufacturing facilities in Scotland.Scotland moved beyond the threshold when its electorate gave an overwhelming vote of confidence to the incumbent government on May 5th 2011.Westminster must recognise that when it's a case of – 'Constitutional law versus the democratic will of the people, the will of the people will always prevail in the end.

    Posted by Anonymous | November 14, 2011, 12:37 am
  5. Holyrood doesn't have the legal authority to run a binding referendum because the constitution is reserved to Westminster.What Professor Bogpaper has perhaps not appreciated is that the referendum will be purely consultative and not legally binding. Of course it would be most interesting if Westminster decided to ignore the will of the people…One other point: historically the people in Scotland were sovereign, not the monarch and not parliament. Can any legal eagles enlighten me as to whether that was ever changed, either by the Act of Union or some other piece of Westminster legislation? And if it wasn't then surely there is a valid question as to whether Westminster is competent to reserve the constitutional position of Scotland in the first place.

    Posted by forfar-loon | November 14, 2011, 9:25 am
  6. Forfar Loon the: legal document you seek is the 1689 'Claim of Right' which makes clear the people of Scotland are sovereign. In itself it is a re-assertion of the entrenching in law by the Scottish Parliament in 1328 of the Declaration of Arbroath.In effect the legal concept of the people of Scotland's sovereignty has been established for 700 years and is protected by the 1707 Treaty of Union for 'all time' as made clear by Lord Cooper in a judgement in 1953 at the Court of Session and was conceded by the Lord Advocate on behalf of HM Government.

    Posted by Peter Thomson | November 14, 2011, 6:27 pm
  7. Thanks for that Peter, sounds like Westminster are bluffing then!

    Posted by forfar-loon | November 15, 2011, 1:54 pm
  8. Great article, the best one so far on this issue.It deservedly highlights the "law" as an unethical tactic which means all things to all people. Perhaps it should be ignored altogether.

    Posted by jfjoubert | November 16, 2011, 3:09 pm
  9. The threat from within.'CORNISH NATIONALISM'Cornwall has a Celtic cultural identity seperate from that of England.Cornwall should be granted a degree of devolution/autonomy.Cornwall is legally a territorial and constitutional Duchy with the right to veto Westminster legislation.Cornish nationalists claim the right to self determination under the United Nation Charter of human rights.

    Posted by Anonymous | November 16, 2011, 5:07 pm
  10. I posted this on NewsnetScotland earlier, thought you might enjoy it too."Let's do some thinking here, the question must have a positive out come on two fronts, 1) Westminster must lose control, by that I mean the Union is no longer seen as a reserved issue and 2) the sovereign people of Scotland must win.I think we can all agree on that? So here is my first pass at the wording of THE QUESTION;Do you agree that the Scottish Government shall enter into negotiations with westminster with a remit to renegotiate the Treaty of Union for the 21st Century?No: Independence.Yes: The Sovereign Scottish people get to decide what powers to share.So let's think this through, if the vote is no then were off! But if the vote is yes, who would you trust to lead the renegotiations?I think the answer is pretty clear there. This way the SNP would have a win:win situation what ever the outcome of the vote…now if I was Alex…"

    Posted by Anonymous | November 20, 2011, 10:12 am
  11. "Do you agree that the Scottish Government shall enter into negotiations with westminster with a remit to renegotiate the Treaty of Union for the 21st Century?"Anon. I'm afraid I didn't enjoy your question much. For a start a significant number in Scotland wouldn't understand it. In the last referendum held here on whether we wanted a Scottish Parliament and if we wanted it to have tax-raising powers I was approached by a woman in the polling station who asked, "Whit yin's the Labour man hen?" I rest my case. And I'm sorry to say this but if this is about either side wording a question to their own advantage then they are all wrong to adopt such a tactic. It is dishonest.

    Posted by Jo G | November 20, 2011, 11:57 am

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