Of devolution, independence, and oil

Scotland has oil. In 2001, the UK was producing 2.54 million barrels of oil per day from the Scottish waters (and using 1.699). Demand for oil has risen, but the revenue from the oil has dropped by about half. The silly season is already out on how the Unionists might resolve this if Scotland votes yes in autumn 2014: the English Democrats want to know how did our oil get under their water? and Lord Kilclooney suggests partitioning Scotland.

As ever, there’s some sound discussion about the legalities around the independence referendum at Peat Worrier:

While Wallace’s colleague, Michael Moore, has said that the UK Government would not attempt any legal challenge to Holyrood legislation authorising a referendum. Wallace’s statement, by contrast, at least still countenances the possibility. Given Moore’s ditheriness, and the range of wrangling interests pulling the coalition this way and that, I doubt too much stock should be put in whatever view the Secretary of State happens to be entertaining today. This was followed up by a piece in the Scotsman, in which Wallace kept open the possibility of litigation, to spike an SNP referendum, if the transfer of powers (with or without conditions) cannot be agreed between the parliaments.

But it looks like things are progressing – the Scottish Government have agreed to use the Electoral Commission, which suggests in turn that the Westminster coalition aren’t planning to try an undignified blocking strategy.

Joyce McMillan had some altogether sensible advice to give to Johann Lamont in the Scotsman yesterday:

Already facing a collapse in Labour votes and membership caused by the party’s movement to the Blairite right since the 1990s, and facing a triumphant Scottish National Party which has now become the focus of all hope for many centre-left Scottish voters, the new Labour leader now has to deal with her party leader’s decision to join the Prime Minister’s gang on the constitutional issue. She has to agree that Scotland should be made to hold a “binding” yes-no referendum on independence, and to rolling out Westminster Labour “big guns” to lead a government-inspired campaign designed to frighten the Scots into voting “no”.

Now tactically, of course, it is tempting for Labour to join the Tories in wrong-footing Alex Salmond, by demanding the straight yes-no referendum which he fears he cannot win. The First Minister has clearly been taken aback by the extent of his own success in demoralising the opposition parties in Scotland, which has left him without significant support in promoting the “devo-max” option which he also wants to see on the ballot paper; and Labour is doing all it can to prolong his pain.

This is the kind of moment, though, when serious political leaders have to take a step backward from the fray, and the consider the long-term future of the movement which they seek to represent. It’s this kind of courage and statesmanship that is now required of Johann Lamont. The party she leads was founded on trade union representation, on the co-operative consumer movement, and on a passionate belief in Scottish home rule as part of what we would now call a federal UK.

At least McMillan has positive suggestions for Johann Lamont: Peter Preston in the Observer has only schadenfreude for Brian Taylor (BBCScotland’s political correspondent and chair of the Friday Big Debate) on the grounds that “you can’t have a British Broadcasting Corporation without a Britain”:

Deciding how news agendas change as you reach Berwick has always been sticky, and has grown stickier still since the Holyrood effect has rendered reporting on Westminster politics less and less relevant on hundreds of domestic issues. But how can BBC Scotland chronicle a debate that decides its own future (and its £100m budget) without one side or the other crying foul?

David Steel commented on the Westminster coalition’s plan to have George Osborne coordinate the Unionist campaign as “just plain bonkers”:

if I were Alex Salmond I would be rubbing my hands in glee at the thought.

Steel, who 12 years ago was the first Presiding Officer, back when the Holyrood building was still a former-brewery brownfield site, reminded us that his first visitors had been a delegation from the Parti Quebecois:

On a recent visit to Toronto University, I was instructed on what had happened to them. In 1980 they held a referendum asking for a “mandate to negotiate” independence from Canada. The question on the ballot paper ran to six lines; it was defeated by 60 per cent to 40 per cent.

They held a second referendum in 1995, this time asking to “become sovereign” after offering a new “political and economic partnership” to Canada. This time the question ran to just three lines. It was narrowly defeated by 51 per cent to 49 per cent.

Bill Jamieson also referenced the Quebec experience, exploring the different possibilities for framing the questions and counting the vote:

No system is inherently more “democratic” than the other but an all-out row will rage over which system to adopt, driven (quite coincidentally of course) by party calculations of which system is most likely to give them a more favourable result.

Once all the arguments are aired and analysed, even political nerds might start to weary. A populist yearning for a straight yes/no, in/out may emerge the longer the wrangling goes on. But even a straight vote may not settle the argument because context can change – as well as our understanding of what is really meant by “independence”.

Who sets the rules, matters: who frames the questions, who decides how the vote is to be counted. Alex Salmond will be launching the consultation on the referendum in only four days time – and in about six months, we should have the report on that consultation. We can be fairly sure with all the talk about devo-max that there will be considerable popular support for that option – which the SNP will take as further support for including that as a third question in the referendum.

Further, it should be made clear by someone (Joan McAlpine certainly tried) that as the Scottish people will be consulted from Holyrood on a referendum, and as we know perfectly well that the SNP have been saying for years that they would hold a referendum in the lifetime of this Parliament, any attempt by Westminster to scupper this will simply sink the Westminster parties in Scotland.

Going back to David Steel,

The Supreme Court of Canada concluded that the National Assembly, legislature or government of Quebec do not have, either under Canadian law or international law, the right to effect the secession of Quebec from Canada unilaterally.

However, the court also emphasised that the rest of Canada would have a political obligation to negotiate Quebec’s separation if a clear majority of that province’s population voted in favour of it.

That in itself begged a number of questions – what, for example is “a clear majority”? – a question only too familiar to those of is involved in the ill-fated 1979 Scottish assembly referendum in Scotland. The judgment said that the result of any referendum must be free of ambiguity both in terms of the question asked and in terms of the support it achieves.

The last two referendums I voted in had very simple questions: Did I want AV? Yes. Did I want a Scottish Parliament? Yes. Did I want that Parliament to have tax-raising powers? Yes. (The only complication I saw was if a majority voted No to the Parliament and Yes to tax-raising powers….)

Last week in the Observer, their Editorial mused

Independence, at this stage, appears unlikely but a route that begins with a “social union” and possibly moves on to devo max isn’t far from the final destination of a clean break. We are, after all, living in an era of such journeys. Estonia seceded from the Soviet Union in the 1990s; Montenegro seceded from Serbia in 2006. The EU is overflowing with small states, drawing strength in healthier financial times from a federation. They uphold a basic principle in international law that a country has a right to self determination.

Now, a Westminster-based tartan posse including Alistair Darling and Charles Kennedy, is intent on persuading would-be separatists that the status quo is best. They will warn that Scottish independence demands a radical reconfiguration of the UK constitution. As Carwyn Jones, first minister for Wales has said, minus the Scottish MPs, parliament would consist of 550 MPs, 510 from England. Should that happen, he is calling for plans for a senate and fair representation of the three remaining countries in the then less united kingdom.

But I read only today a post at Bella Caledonia by Doug the Dug which questioned whether the devo-max option is even politically possible – not in getting on the ballot, but in the legislative work that would have to be done at Westminster if that option won:

To endorse the devo-max option means that Labour, (or the Tories or the Lib-Dems or all), have to ensure that the legislative, executive and financial powers attached to devo-max are both defined and acceptable to the Westminster parliament because that’s the place that devo-max will be passed into legislation. Only Westminster as the UK parliament can enact legislation to create devo-max for Scotland.

That is an excellent and very real point. Independence for Scotland is a leap into a hopeful if unknown future. Independence for a small country from a larger one is a matter of international law which has been quite well worked out already. Devo-max, however defined, will be something new. It’s not something for which we can call on the international courts and reliable case law: it is something that must be negotiated for Holyrood at Westminster. An overwhelming majority voting for devo-max would certainly give the Scottish Government a strong democratic mandate to insist on further devolution of powers, but to get those powers to Holyrood, Westminster would have to pass another Scotland Act.

Doug further points out:

In the improbable case that devo-max ever makes it to the stage where it is presented as a bill in Westminster then the boundaries of devo-max for Scotland will be defined in England and not by Scots, civic or otherwise. This is simple parliamentary arithmetic. To pass a devo-max bill through Westminster it will need the support of a large number of English based MP’s.

And I doubt it will be possible – unless the feeling in England (and Wales, and Northern Ireland) is very much for a change to a more federal system of government. Since 1999, I’ve heard the complaint from multiple English people, that it is “not fair” that Scottish MPs have the power to vote at Westminster on matters which are devolved to the Scottish Parliament.

I wrote in response to an English grumbler about tuition fees: “There are two solutions to this, but either would need action by the Westminister Parliament: (a) to create a devolved assembly for England, similar to that for Wales or Northern Ireland, which could meet separately from the Westminster Parliament: or (b) to rule that even within the House of Commons, MPs may only vote on matters relevant either to the whole of the UK or to the country within which they have their constituency.” But however it was done, it would be done at Westminster: and given the complexity of what’s proposed, it would happen after May 2015 – in other words, after the next UK-wide General election. If devo-max wins overwhelmingly in the autumn 2014 referendum, expect to see in the manifestos for GE 2015, Westminster parties proposing their solutions to this issue raised by the Scottish vote.

Doug again:

Simple really. At the very minimum, devo-max means we don’t get the oil.

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