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Why a second question means Salmond might lose

Marriages – they just don’t seem to last these days. First the couple start living in separate houses; then the arguments begin over money; and finally, the unhappy pair end up saying: ‘see you in court’. Lawyers are rubbing their hands at the prospect of rich pickings from the case of Westminster v. Holyrood. There are suggestions that some anglophile Law Lord, or a private individual, will challenge, in the UK Supreme Court, Holyrood’s right hold an independence referendum. (Which possibly explains why the First Minister was so anxious to challenge the Supreme Court’s remit in Scotland last year after it overturned verdicts of the Scottish appeal courts).
Now, there is a precedent here: the Canadian Supreme Court looked into the secession of Quebec in 1998, and its ruling – subsequently enshrined in the 2000 Clarity Act – was a masterpiece of legal ambiguity. The Canadian constitutional court ruled that a province had no right to leave a federation or a union on its own volition. However, the judges went on to say that if a referendum was held, with a clear and unambiguous question, and the majority was substantial for independence, then the rest of the union would have to recognise this and act on it. In other words: you don’t have any legal right to break up a union, but the political reality is that you do.

So, the law isn’t going to help us on this issue. The fate of the UK will be decided, not in the courts, but in the ballot box, in the referendum the Scottish government has now called in the autumn of 2014. Alex Salmond chose, mischievously, to announce the date in the middle of Tuesday’s statement from the Scottish Secretary, Michael Moore, on the legal basis of the referendum. Ho ho. Moore did his best to sound as if he still knew what was going on, and also to dig the UK government out of the hole it had dug for itself at the weekend by suggesting that Number Ten intended to dictate the timing of the referendum.
This was a massive and inexplicable own goal by David Cameron, though the Chancellor, George Osborne, is being fingered as the inspiration for the dismal wheeze. Imagine if Brussels were to tell Westminster when and how to hold a referendum on EU treaty powers, or to draft the question, or decide who was eligible to vote? There would be outrage – and likewise in Scotland this looked like old-style Westminster jiggery pokery. Scots have bitter memories of the infamous 40% rule imposed by Westminster in the run up to the 1979 devolution referendum.   
Michael Moore was right to kill the idea of a “sunset clause” determining the timing of the Scottish referendum, but that didn’t entirely kill the suspicion that the Tory-led administration wants to run it, like the AV referendum, under its rules, overseen by the UK Electoral Commission. It’s going to be difficult for the SNP to reject the Commission having some kind of role since it has great expertise and the Scottish government has allowed it to oversee local elections.  The SNP proposal to allow 16 and 17 year olds to vote in the referendum, on the grounds that they are on the electoral register, also looks a little like nationalist jiggery pokery, since they can’t actually vote till they are 18.  Mind you, the Liberal Democrats are great enthusiasts for votes for 16 year olds except, curiously, in the independence referendum.
But these questions can all be resolved in the consultation. The bigger issue is the referendum question itself, and the suspicion that Salmond’s will be along the lines of: “Do you wish Scotland to be liberated from the dead hand of Westminster rule and become a free and prosperous nation once again?”. But like the claim that Salmond wanted to hold the referendum on the 700th anniversary of Bannockburn, this is largely unionist paranoia. The SNP has always said it favoured a simple, single choice question: “Do you agree that the Scottish Government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state”. This was how it was in the draft referendum bill published by the SNP in the last parliament. That never happened because the opposition parties at that time rejected any idea of a referendum on the grounds that it would ‘destabilise the union’. Times change.
However, the opposition parties now believe that Salmond wants to rig the referendum by adding another question proposing a half-way house to independence – devolution max – under which Scotland would have most tax raising powers. But the odd thing about this ‘second question’ plot is that devolution max is not an SNP policy at all but a unionist one supported by the Scottish Liberal Democrats and, though with less enthusiasm, by the Scottish Labour Party. Willie Rennie, the leader of the Scottish Liberal Democrats says he wants the Scottish parliament to “raise the money it spends” and has set up a commission under Sir Menzies Campbell, to develop the idea. And the new Scottish Labour leader, Johann Lamont, insists that she too wants the parliament to have greater economic powers short of independence. The Scotland Bill, with its limited tax proposal, has become an irrelevance even though it hasn’t yet become law.  
But if these parties support devolution max, along with the vast majority of Scottish voters why then no question in the referendum? A lot of people are asking this, and there are moves to convene a convention of unions, churches and voluntary organisations to mount a campaign for a second question. There is a risk that the majority of Scots could be disenfranchised in their own referendum. Anyway, do Labour and the Libdems really intend to join a cross party “No” campaign led by George Osborne?
Actually, a second question isn’t really in Salmond’s interest at all. Having it on the ballot paper means that the SNP is bound to lose, since the vast majority of Scots will support it, even those who actually favour independence. It may surprise the unionist parties, but there are many in the SNP who believe a single, straight question marks their greatest hope in a generation to achieve independence. The unionists are in disarray, the SNP has just won a landslide election victory. So why throw it away by offering the unionists a devo-max lifeline? It might be that Alex Salmond and David Cameron are more in agreement than they realise.  

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?


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