It was a strange thing to watch; those who oppose independence, having failed to build a case for the union, have sought, instead, to turn the issue into a process story. Not the why but the how; not a debate about what Scotland’s future should be but an argument about how many questions should be on the ballot paper; not a discussion about what would be to Scotland’s best advantage but a huff about who’ll run the referendum; not an ambition for Scotland’s future but a sneer about who has control over the legal aspects of the referendum. They want to talk about the process not the issue. Unfortunately for them, they wandered blithely into the trap they thought they’d prepared for the SNP.
Both sides have been stepping around the ring, eyeing each other warily, trying to judge the right moment to strike, whether the opponent has a weakness that can be exploited. The problem is that making the first move carries as much danger as opportunity – tilt at the windmill at the wrong time and the turning blade will crack your head; miss the windmill altogether and your own momentum carries you right over the cliff.
Since May the SNP and the three anti-independence parties have been staring at each other on this issue, waiting for the other side to blink. They have, of course, been doing other things as well; the SNP governing in Scotland, the Tories governing in the UK – the SNP doing good things, of course, while both Tory parties have been doing something else except when they’re following the lead of the SNP with things like Council Tax freezes and minimum pricing. This issue, though, Scotland’s constitutional future, is the great divide – and it’s where the parties stare each other down. So did the Tories blink or did they think they spotted an opportunity? Whatever the answer to that question, why was Osborne sent in like a sumo wrestler in full flight to a chess game against a grandmaster? Perhaps even more puzzling, why, if a Tory was to lead the charge, was it Osborne? I can understand why it wasn’t Mundell – there’s a credibility gap to consider – but why not Cameron? His assertion is that he is the Prime Minister of all of the UK but all he did was wave the starting flag for the regatta and retire to the clubhouse. One more thing – why do it now?
There’s a theory that Cameron needed another outlet for his testosterone after his Brussels bout and that Scotland just provided an opportune target. It seems to me, though, that this appears more a break in the patience dam than a flexing of puny biceps; more a push to ‘get it sorted’. The confused messages, the disparate position, and the high-speed revolving of UK Ministers culminating in an ill-thought-out consultation document suggest a rushed job from the Tories. They clearly didn’t game the situation – no scenario planning would have suggested a positive outcome for them from these actions – and they walked straight into an ambush. The Scottish Government lying in wait, patience honed over decades of working this turf, strategy worked out for this and a dozen other scenarios, pounced.
The trap was baited with the reaction to Cameron’s weekend sing-song – allowing the indignation we all felt to be expressed by members of the Scottish Cabinet instead of biting it back – and the Tories walked straight into that woodland clearing singing a brave little ditty about legislative superiority; the arrogant political equivalent of chanting “who’s the daddy?” When Moore was on his feet introducing the Tories’ consultation on Scotland’s choices the Scottish Government trickled out the announcement, led by Nicola Sturgeon – the first woman on the field – by twitter, that the date for the referendum would be in autumn 2014. As Moore struggled to answer questions (either poorly briefed or lacking understanding) the trickle turned into a flood with Alex Salmond doing media interviews and the SNP’s activists repeating the news we had all been waiting to hear. The news was no longer a Tory plan so cunning that Baldrick would be impressed but a bold statement about the ambition to fulfil the promise of a nation. Sun Tzu smiled and watched the UK Government teetering on the edge of the cliff as the windmill blade swung down towards them. This battle fell to the bold – the bold and the patient – and we move on to the next battle or, to be more precise, the next battlefield.
Who controls the referendum, what questions are on the ballot paper, when should it be, and who has legal control? This is the battlefield; this is the pitch that’s chosen. The battle may turn out to be something completely different, something we couldn’t predict from looking at the field, but this is where we stand for now so let’s take a look around.
For some reason there’s a perception that the Electoral Commission is made up of independent experts in election law and that the SNP’s objection to it running the Scottish referendum is that we believe that it isn’t impartial and we suspect it will show its colours during the campaign. Well, it does have political appointees on its board but that’s not why I object to it being involved, I object because everything I’ve seen from the Electoral Commission suggests timidity, poor information, indecision, and confusion. The guidance for candidates for elections is poor to say the least; the guidance it gave in 2007 for deciding on disputed ballots went against everything about election case law that we could have read in Parkers; when politicians and political parties have transgressed in the rules on reporting donations the Commission has said “oh dear, you weren’t to know, don’t do it again now”; and its consistent view on everything to do with the debate over the referendum has been “the Commission has no view”. On top of that, the Scottish end of the operation has half a dozen staff squeezed into a tiny room in Lothian Chambers (I think NEBU used to be in there when it was part of the Scottish Parliament operation) – hardly the headquarters or staff numbers for administering a referendum. I want a fair referendum with clarity and a fair result so I want a fair referee and one that won’t be afraid to poke its nose in, give its opinions and make rulings without fear or favour. That’s why I don’t think that the Electoral Commission should be anywhere near it. That’s why I agree with the General Secretary of the STUC (that’s gotta be a first) and my own party that there should be a Scottish body set up to oversee the referendum. In fact, why not a civic Scotland body with the STUC, civic bodies, perhaps COSLA, bringing back together those who laid out the Claim of Right in the 1990s?
The questions on the ballot paper – being nationalists we want a binary choice on independence but being democrats we appreciate that there is a substantial body of opinion in Scotland that favours full fiscal autonomy and that body of opinion deserves a place on the ballot paper if they can provide a proposal to be voted on. I assume that there are plenty people capable of producing that proposal and, much as I’d rather have independence face off against the status quo, I’d welcome that debate; shaping a nation should encourage the widest expression of opinion possible. This is why I am saddened by the attitude of the anti-independence coalition which insists on one question on the ballot paper; a choice between only two of the widely discussed and debated options which would be a great shame in terms of the debate and passing strange from Labour considering they put two separate questions on the 1997 referendum ballot paper. I think it’s a case worth fighting for, if we’re building our nation anew we want to base it on the widest foundations of public opinion possible, we want to encourage all in Scotland to join the discussion. If it falls, though, and we end up with one question on the ballot paper, a straight choice between two of the three options, I suggest independence and devomax should be the two. There’s movement from everywhere, including Westminster on more power in our Parliament so let’s make the choice between the two options that favour that.
We need, though, to know when we’ll be voting, when we’ll be campaigning, when we’ll be debating, how long we have to talk to each other, to discuss, to share and to come to agreement. Autumn 2014 says the First Minister, earlier than that say the other side. What’s the hesitation asks Osborne, what’s the rush asks Salmond. I’m not sure that even 2014 gives the nation enough time to peruse all the arguments but I know that we certainly can’t do it in less time. There’s a lot to get through, these are momentous debates, this is a fairly substantial decision to make and two years and a few months seems precious little time to allow everyone to have their say and ask the questions they want to ask. If we fired the starting gun on the referendum campaign now we’d win. We’d win because the SNP is the most organised party in Scotland, the yes campaign is the only one that has any traction, we’re the party with activists the length and breadth of the country who have dedicated their political lives to this cause and are ready to take it to the country, and we’d win because we’re the only party that has been asking the question “which way would you vote”. We’d win because we’re better at this but it would be a political victory and that’s not enough if you’re going to build a country. We need more, we need to take the people with us, not in terms of 50% of those voting +1 but in terms of the general mood of the country. We need Scotland to win not just the SNP. Why anyone would want to cut short that great debate is beyond me, I look forward to the energy and the excitement of it, but why they would want to cut it short when they’re on course to lose is, surely, beyond everyone. I want to feel the mood in Scotland during these coming two and a half years, I want to share in the debate about how we take our country forward and where we should go. I don’t just want the vote and the victory, I want the whole experience. Autumn 2014.
Tying it all up (in knots, it would appear our opponents hope) is the legal debate. The Tory high command insists that only they can allow the people of Scotland the right to speak – Mr Moore told us so in the Mother of Parliaments just the other day, did he not? M’learned friends will wax lyrical and at length about the pros and the cons of the law as it stands, about how the Scottish Parliament is a creature of statute and subservient to the Mistress doon by in London while m’other learned friends wax lyrical and at length about how that isn’t so and how international precedent and law determine otherwise. They wax lyrical and at length while their colleagues stand in the shadows hoping to wax lyrical and at great expense for haven’t we been warned, yeah even by that great worrier of peat and by the great hero of Govan 88, that it will all end in tears in the greatest legal chamber that Perfidious Albion can find. Even Mr Moore, occupying one of the great offices of state warned us lowly Scots not to aspire to rise above our station and get the idea that we can think without permission, that he holds all the legal cards, that he and his chums alone can decide what’s what and what’s not when it comes to Scottish choices. Aye, the great weight of the legal establishment is hung by a Damocles thread waiting to come crashing down upon us in a mighty roar of derision should we dare to stand up and speak, all the law is in London.
Except it’s piffle and I’ll tell you why – there isn’t a legal decision to be made and not a judge on any bench from Lerwick to Dover who would allow the case to go to proof whether it’s brought by an individual with a grievance or a Government lawyer in London. Any of the wiggies would put aside the claret and tell us in sombre tones that this is a political judgement not a legal one (or judgment as they will continue to spell it). The case, we’re told, is that the legislation made in Edinburgh would be unlawful. Except if it is ultra vires the Secretary of State for Scotland – Mr Moore – can use the Scotland Act 1998 to strike it down. He can use section 35 while the Bill is under consideration and stop it in its tracks or he can use section 107 after it has been submitted for Royal Assent and have struck down. Only 107 has been used (to the best of my knowledge) and that only once to strike down part of the Regulation of Care Act 2001. Yer honour would have a swift shuftie at the case before him and gently inform the Minister concerned that if he wasn’t putting his Parliamentary head in the noose of public opinion then he could bet his pension that the powdered wig was going nowhere near it either. If it’s ultra vires and so well scrutinised then the ball is in the politicians’ court rather than in the court, if you will.
O Scotland is the barren fig. Up carles, up, And roond it jig