The Lib Dems and legal considerations – perhaps less is Moore
Jan 10
Posted by Jeff in Holyrood | 41 Comments
Jan 10
Posted by Jeff in Holyrood | 41 Comments
Better Nation is seemingly temporarily turning into a rolling blog on the developments of the referendum’s question of legality but if my *cough* erstwhile esteemed fellow editors won’t pen anything *cough cough*, I shall just keep going. Incidentally, if any readers wish to submit a Guest Post on these potentially historic developments (or anything else), please do so.
Today’s log of the independence debate will no doubt revolve around Michael Moore’s statement to the House of Commons on the legal status of a referendum on Scottish independence as the unionist camp seek to put the troubles of the past 48 hours behind them. The day looks set to basically boil down to a challenge to Alex Salmond to ascertain whether the FM wishes to risk holding a referendum that may be open to legal challenge or whether he will negotiate with Westminster in order to ensure any referendum is as watertight as possible in terms of rebuffing any potential subsequent challenges. It looks set to be a more difficult day for Michael Moore than it will be for the First Minister though, and that is for two reasons.
The first reason is, the Lib Dem camp continues to be the harbingers of gloom. Michael Moore, and Danny Alexander who was uninspiringly bumping his gums on Radio 4 this morning, need to find a way to be, or at least appear to be, excited about taking part in this referendum, about having the opportunity to celebrate Scotland and direct its trajectory. However, instead, they are solemnly trying to hold back a Nationalist surge with trembling tones and careworn expressions. Who in their right minds wants to buy into that? Who is being pulled closer to the Lib Dems as a result of the party’s leadership on this issue?
Well, not (the excellent) Lib Dem blogger Andrew Page for a start:
“there are Liberal Democrats who are independence-leaning. They see a liberal vision for a truly liberal Scotland and recognise that having an open mind on the question is not anathema to liberalism. In a previous conversation with Willie Rennie I argued that independence could yield benefits for both Scotland and our party that should not be lightly dismissed; I also suggested that the Liberal Democrats’ best position could be in supporting whichever option gives Scots most freedoms and being open to the notion of independence even if we remain skeptical about the details. It would certainly be preferable to entrenched, cynical opposition. The Home Rule Commission is welcome, if somewhat overdue, but while it is right to formulate our own preferred option there is no place for political arrogance that refuses to even countenance other perspectives that would help bring about our liberal aims – you know, the kind of arrogance some might view as extreme.â€
There is clearly a sense that the Lib Dem position on this, or should that be lack of a position, is not only losing them support outwith their party, but also support from within. People get into Politics to do something or argue for something, they don’t tend to get into Politics to stop other parties pushing their objectives. Michael Moore could well be inadvertently sapping his own party’s morale when he takes to the podium today.
The second reason that today might be a bad day for Moore is simply because there is a good chance that many Scots simply don’t agree that Westminster needs to hold open the legal door for Scotland to hold its referendum and deliver a result that must be abided by on both sides of the border. After all, what part of ‘Yes’ won’t Cameron or the courts understand?
Let’s be honest and realistic, a referendum carrying a Yes vote that is held within Scotland will result in independence whether it is ‘legally binding’, advisory or whatever. The Scottish people advising their two Governments to negotiate a settlement for separation is beyond successful challenge (how can a single legal complaint ever trump the will of an entire nation?). So there is an element of timewasting about today’s discussions and Michael Moore, rightly or wrongly, will be the face and name of that wasting of time. The Scottish Parliament having the legal competence to hold the referendum would be nice, but it is not at all necessary.
The only possible bone of contention from a legal perspective will be the Electoral Commission and to what extent it, or a similar independent body, will be involved. It is perfectly reasonable for Alex Salmond to reject a UK institution’s involvement in a plebiscite that is for Scotland alone to decide and hold, even if that institution is the venerable Electoral Commission, but some sort of independent oversight is certainly required to remove any suggestion of impropriety.
That is arguably the only interesting facet of today’s spectacle, but who in their right minds believes that Alex Salmond and the Scottish Government don’t have something waterproof in mind regarding this that shall be announced in due course? Not me.
This entry was posted on January 10, 2012, 12:10 pm and is filed under Holyrood. You can follow any responses to this entry through RSS 2.0. Both comments and pings are currently closed.
#1 by Douglas McLellan on January 10, 2012 - 12:39 pm
Agree with everything you wrote (and I agree with Andrew) but I disagree with you on the Electoral Commission. It is the only nation-neutral body with the skills and experience to run a referendum. Certainly it should work to make sure that all sides are happy with the question and process. Plus it has a devolved Scottish office.
It is important to remember that there will be hundreds of thousands (over a million maybe) who will want to vote no. Their concerns about impropriety over an SNP established body are just as valid as those who have concerns (although no-one has said/proven why there should be) of the Electoral Commission.
#2 by Jeff on January 10, 2012 - 1:19 pm
A strong argument for the Electoral Commission’s involvement Douglas but I’d personally prefer a Scottish Government sanctioned oversight team, headed by a hand-picked, unanimously independent individual rather than have a UK body oversee what needs to be a Scottish process. I am of course aware that the more the SNP manage to make this look like a Scottish-only process then the better their chances of winning a Yes vote which in itself is arguably unfair, but I still think it is right and proper to go down that path.
And this might be a bit meek and sheep of me but the mere fact that the SNP has said no to the Electoral Commission so consistently and clearly suggests, to me, that they have an alternative plan in mind which is just as appropriate. Either that or it’s a bargaining position for days like today.
#3 by Douglas McLellan on January 10, 2012 - 1:39 pm
I disagree that this is a “Scottish” process as I think you mean it. It is a process that is taking place in Scotland, which to me anyway, is different.
If there is no faith in the independence of the Electoral Commission why should there be more faith in any other body or individual? Just because it is set up by the SNP doesn’t automatically make it more trustworthy.
Further down there are the ideas of UN or EU monitors for the referendum. I actually think it would be a poor and damaging birth of an independent nation if we start by saying we don’t trust the independent nature of a UK body.
#4 by Jeff on January 10, 2012 - 1:50 pm
For me it’s not even about a lack of trust or a lack of faith, it’s just the wrong fit for the nature of the event. This isn’t just any other election, it is separate and quite distinct from council, Holyrood, Westminster elections and should be conducted accordingly.
Maybe that’s silly and/or maybe it’s an aesthetic indulgence but it would still be my strong preference.
#5 by Douglas McLellan on January 10, 2012 - 2:12 pm
I’m the opposite. I think if we are to be a confident and open nation then surely the positive aesthetic would be to respect the independence of the Electoral Commission as it is just now.
Any argument against the electoral commission on the grounds that its a UK body can equally be put to a Scottish body set up by the SNP.
#6 by Jeff on January 10, 2012 - 2:20 pm
I think that would be the natural assumption for most people, hence why the Electoral Commission question is, for me, potentially the most interesting part of today. (I don’t know if it’s part of what Michael Moore plans on discussing, it’s not really part of the legal competence e.g.)
#7 by Indy on January 10, 2012 - 1:41 pm
The thing about the Electoral Commission always makes me laugh – particularly when the argument is used that George Reid is on it and therefore the SNP ought to be happy enough.
Had you read the SG’s proposals from last time you would have seen that they want a Commission to oversee the referendum made up of people who have no political connections at all. No former MPs or MSPs or people who have been lobbyists or any of the rest of it.
My personal opinion is that this may be one aspect that the SNP are playing up with the intention of using it as a bargaining chip that can be given up. If that happens I do hope people won’t start complaining about having nationalists in charge of the referendum ……..
#8 by rodmac on January 10, 2012 - 12:40 pm
It strikes me that an independent outside agency, such as UN observers might come into play? I am sure that whatever or whoever it is, the SNP Government are bound to have the issue of ensuring and monitoring the referendum covered.
It is an absolute necessity that the referendum is seen to be strictly above board.
Who it will not be, is the UK electoral commission. It is filled with Labour supporting personnel and has had previous history as far as the SNP are concerned, for Unfair decision making….Remember Wendy Alexander, and their investigation?
#9 by Doug Daniel on January 10, 2012 - 1:11 pm
It seems slightly absurd to have a UK body overseeing a referendum about independence from the UK. Surely there is a clear conflict of interest? It would be far more appropriate to have the EU send election monitors in to oversee things.
#10 by Alec on January 10, 2012 - 2:25 pm
Why would an EU appointed body be any less suspect? France, Belgium, Spain and Italy – to name but four – have their own separatist movements which would be emboldened.
#11 by Jeff on January 10, 2012 - 1:20 pm
A fine idea, have oversight from outside the UK. It would certainly help minimise the level of complaints or challenges, if such observers gave the process the thumbs up.
#12 by Lallands Peat Worrier on January 10, 2012 - 1:07 pm
“Let’s be honest and realistic, a referendum carrying a Yes vote that is held within Scotland will result in independence whether it is ‘legally binding’, advisory or whatever. The Scottish people advising their two Governments to negotiate a settlement for separation is beyond successful challenge (how can a single legal complaint ever trump the will of an entire nation?). So there is an element of timewasting about today’s discussions and Michael Moore, rightly or wrongly, will be the face and name of that wasting of time. The Scottish Parliament having the legal competence to hold the referendum would be nice, but it is not at all necessary.”
Don’t you remember the Supreme Court’s decision in Cadder v HM Advocate, and its consequences? Or what would have happened if the Court had found Holyrood acted outwith its legal powers in the AXA decision about the Scottish Parliament’s legislation making pleural plaques recoverable injuries?
If Holyrood enacts a law which is challenged in court, as with AXA, we can expect that law to be stayed and rendered inoperative until the legal challenge is authoritatively resolved. If challenged, a referendum simply won’t happen until the courts have had their final say on it. The Scottish people shan’t answer the question. As in the AXA case, this can take years where the issues are clearly arguable either way – as they would be if the referendum Act is challenged by a litigious punter. If courts find in favour of that punter, and against the Scottish Government, the referendum wouldn’t be permitted to take place – unless Westminster altered Holyrood’s powers to order the thing. The “binding” stuff is distracting. Legislative competence is the thing – and the potential consequences of a challenge, particularly in terms of delay – are very real, not trivial nor merely technical. Folk have to be realistic about this.
#13 by Jeff on January 10, 2012 - 1:27 pm
I don’t deny that there are a myriad of details that need to be fleshed out and there is a huge role for lawyers to play in this but I maintain that it is infeasible, simply unimaginable, that the SNP can win a majority Government with holding a referendum one of its main policies (‘the’ main policy?) and anyone, anywhere will be able to stop that referendum going ahead.
Granted, to have a mandate is not the same thing as to have the authority but this isn’t AXA, this isn’t Cadder, this is a whole nation deciding its fate and even legal precedent won’t stop that from taking place, if a legal precedent even exists (I of course don’t know the details of the two aforementioned cases, despite your generous suggestions otherwise). It was set the challenge by unionist parties of requiring a majority to have its referendum, it’s now won that so to be initially denied a referendum even now would be to cause mayhem that would undoubtedly culminate in a referendum anyway. 2016 is a long way away, there is no way that the SNP will let a majority slip by without having its chance for an independent Scotland at the ballot box.
Anyway, politically, David Cameron has no option but to grant the legal competence. Indeed, we have seen in the past 48 hours, through the disintegration of his proposed conditions, the wall of opposition that Cameron would be greeted with otherwise. It’s simply not something that should be bargained over unless the bargainee wishes to pay a very heavy price.
#14 by Alex Buchan on January 10, 2012 - 4:10 pm
Yes all this is right but the 2011 election changed everything. The unionist parties previously didn’t want the referendum mainly because they didn’t want anything to legitimise further the principal that Scotland was free to leave. This wasn’t just about their on-going fight for political advantage with the SNP, this was also about not wanting to destabilise the UK state, either internally in terms of the reaction across the UK, especially in England, or externally in terms of the UK being seen as unstable. It was never about them fearing that the SNP would win the referendum. Now that the referendum is inevitable it is the UK government and the unionist parties who are most keen that it happen because they see in it an opportunity to defeat the SNP on its flagship policy and hopefully weaken it permanently. We misread them at our peril.
#15 by Indy on January 10, 2012 - 1:51 pm
I wonder what effect the consultation process has. If the SG consults on a referendum and no objections are raised to its legal competence could someone then go to court and say I want to challenge this even though I made no effort to take part in the consultation? Or if it is challenged during the consultation that gives plenty of time for it to be dealt with.
Either way it hardly matters since the UK Government has said it is willing to legislate to ensure the referendum happens if that is necessary. They can’t go back on that now.
#16 by Scott on January 10, 2012 - 4:56 pm
Absolutely agree with LPW.
Blithe assertions such as “The Scottish Parliament having the legal competence to hold the referendum would be nice, but it is not at all necessary.†demonstrate a naivety or perhaps wilful blindness.
Whether or not Holyrood can legislate to hold a referendum is at best arguable. Many think Holyrood has no power so to legislate to hold an independence referendum. I am one. My view is shared by prof Tomkins at Glasgow, leading lecturers at Edinburgh, and leading QCs. Others, such as LPW, argue that it has. The Scottish government (understandably) refuses to publish its legal advice. The story is that the UK government is publishing the law officers’ opinions on competence which will include their analysis that Holyrood has no legal power to hold an independence referendum. No-one – aside it seems from Mr Noon in a blog post where he studiously ignored all the legal arguments in favour of assertion, and the press officer for the First Minister (at least in public) – argue that Holyrood clearly has the power and that no persuasive argument can be put on the other side.
Given that the position is at best arguable it should be noted that (a) the presiding officer has to let the bill in to Holyrood in the first place (which requires satisfaction as to the question of competence – which was not present in the last session according to the contemporaneous reports in the Herald); and (b) assuming that the presiding officer lets it in and the bill passed the Advocate General can refer competence to the courts before royal assent is given (ie before it comes into law); and (c) before the referendum takes place any individual punter can go to court, interdicting the possible holding of the referendum pending a decision as to whether or not legislation is within the competence of Holyrood. A referendum will not take place at all until there is a ruling from the courts. And the delay will be at least two years – the AXA case which took 2 years was only expedited because there was due to be a Northern Irish case on very similar legislation – taken as a challenge prior to royal assent – from the law officers which was dropped after the timetable was set.
The point below from indy about comment on competence in submissions on the consultation paper is wholly irrelevant. The court will not take its view on competence based on the selection of interested individuals who write in response to a consultation paper.
It is not enough to assert a referendum will happen. The Scotland Act is a written constitution for Holyrood, policed by the courts and funnily enough courts apply the law. Indeed manifesto commitments in other spheres have been overturned in the past by the courts because they fell outwith the competence of the relevant body (within the UK and in countries with a written constitution). Just because something is in the manifesto does not make it legal, and does not mean the courts will uphold it.
As LPW notes the discussion of whether the referendum is “binding” or not is a distraction, at best a misnomer – usually bandied about by the ignorant (in which I include Lord Forsyth and the Prime Minister). Best then to put that aside. What matters is legislative competence. Devolution of the power to hold a referendum – in clear terms – will address the legal problems and mean the referendum will happen because there will be no ground for challenge. Refusal to accept devolution of power to hold the referendum would lead an informed cynic to believe that the Scottish govern