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Chapter 3 Continued- A legal referendum

Consultation

A legal process was followed for the referendum. Legislation by the UK Parliament was necessary as the devolution legislation specifically denied the Scottish Parliament the power to decide on independence, amongst other things. These were the “reserved matters” (section 29 of the Scotland Act 1998).

There was consultation. A consultation was launched on 10 January 2012 and closed on 9 March 2012. The Government received 2,857 written responses. The author was not alone in being unaware of this consultation. Bizarrely, the consultation pre-dated the Edinburgh Agreement by six months. It was only with the Edinburgh Agreement that there was widespread awareness that an independence referendum was likely to take place. In other words, the cart was placed firmly before the horse. The consultation was limited to responses to the technical route to legalise the referendum and particularly the proposed Order 30 route (under The Scotland Act 1998) which was ultimately implemented.

There was minimal publicity. Only the constitutional geeks and lobbyists had any idea that they had eight weeks and three days to make their submissions on one of the most important constitutional question in our history. Even then, it was on the preferred technicalities to legalise a referendum; not on whether consent should be sought on it being held in the first place. Consent for a referendum was assumed.

Order 30

Order 30 was approved by the House of Commons, the House of Lords and the Scottish Parliament. The legislation was enacted under an Order in Council on 12 February 2013.

The referendum was legal. Parliament can, in the words of the author’s MP on the subject, “do as it pleases”. No judicial review would have succeeded – the Order 30 legislation impeccably implemented Parliament’s intention to address the legal quirks of the reserved matters. No breach of international law, no criminal act to bring before The Hague, but aren’t democratic rights protected under Human Rights legislation? Indeed they are, but this basic human right to vote for your government was not infringed; our representatives were free to vote in our Parliament to enact their legislation.

Unfortunately, unlike devolution, there had never been a national debate on whether any part of the UK should consider independence. Tragically for Britain, the elections for the Scottish Parliament are out of sync with general elections. As we saw, in the 2010 general election, the Scottish Nationalists won six seats at Westminster. They had a mandate to legislate on Scottish independence. The other 644 MPs could claim no such mandate. The UK Government could claim no such mandate.

There was consultation, but there was no consent.

Of course, under our jealously-guarded unwritten constitution, there is no requirement to seek a mandate – to secure consent – to change this constitution. Hitherto it hasn’t been necessary. The British people and their representatives in Parliament have had the judgement and profound common sense to know that, outside of emergencies and crises, big changes take time for the country to get used to. Parliamentarians of earlier generations wouldn’t have dared contemplate unforced profound changes without first seeking approval at the ballot box. Britain used to pride itself in not letting its leaders get too big for their boots – ask Mr Churchill in 1945 or Thatcher after 1990.

Parliament had the power, but did it have the right?

A valid referendum?

Parliament’s step was unprecedented in modern times. Hitherto, major constitutional change required consent.

Constitutional change before 2012

When Herbert Asquith wanted to limit the powers of the House of Lords in 1910, George V tasked him with winning two general elections. Only then would he create the additional peers required to pass the Parliament Bill. Asquith did indeed win both general elections of 1910. The Lords sensibly passed the Parliament Act without the monarch needing to create the new peers.

Even Harold Macmillan’s 1959 election manifesto declared the intention to join the fledgling trading association of seven west European countries that we now know as the EU.

No matter how unjust Thatcher’s Poll Tax seems to us now; it was presented to the people clear as day in the 1987 general election manifesto. The Poll Tax had a mandate.

Edward Heath didn’t take us into Europe without consent. The 1970 Conservative Manifesto pledged:

“If we can negotiate the right terms, we believe that it would be in the long-term interest of the British people for Britain to join the European Economic Community, and that it would make a major contribution to both the prosperity and the security of our country.”

And for staying in Europe? Britain was given the opportunity to leave Europe with a referendum on Europe In/Out in 1975. The decision to hold this referendum was itself affirmed by voters in the October 1974 general election. The Labour Party manifesto was clear:

“The Labour Party pledges that within twelve months of this election we will give the British people the final say, which will be binding on the Government – through the ballot box – on whether we accept the terms and stay in or reject the terms and come out.”

Interesting to note that it is the people binding the Government rather than the other way around. The 5 June 1975 vote was 67.2% to stay in Europe, 32.8% said No.

The commitment to devolution in the same manifesto has already been noted.

What about fundamental changes to the electoral system? For many years the Liberals/Social Democrats/Liberal Democrats have been committed to converting the Parliamentary electoral system from First-Past-the-Post (the candidate with the most votes wins, all other votes count for nothing) to a system of Proportional Representation or “PR” where Parliamentary seats are allocated to parties depending on the proportion of votes cast for each party.

In 2010, the Labour Party manifesto included a commitment to a referendum on PR and the Liberal Democrat manifesto to implement PR. Part of the deal in forming the Coalition was holding a referendum on PR. This was held in 2011. It was decisively rejected by the voters (67.9% No to 32.1% Yes).

Reform of the House of Lords? A clear commitment in the 1997 Labour manifesto.

And, of course, devolution:

“As soon as possible after the election, we will enact legislation to allow the people of Scotland and Wales to vote in separate referendums on our proposals, which will be set out in white papers.” (Labour Party Manifesto 1997).

You get the picture.

At every turn, the direction of the country was decided by the people at general elections.

Referenda and Parliamentary sovereignty

In modern politics, you cannot raise income tax by a penny without winning a general election. Yet the very existence of the current nation state can be decided by a minority party Prime Minister, MPs, Lords and without a hint of criticism by the media.

To be clear, referenda are to be avoided. Attlee was right to remind us that they were the device of dictators. Yet, the unwritten rule is that major constitutional change requires consent. If this hasn’t been presented as part of general election manifesto then a referendum should take place.

Governments are expected to make decisions. The vast majority of their decisions are not listed in manifesto documents and should not be subject to innumerable referenda. There are issues that cannot be foreseen at general elections; national and international emergencies that require decisions without a popular mandate. The build-up of our armed forces in the Gulf in the wake of Saddam Hussein’s invasion of Kuwait in August 1990 was authorised by the Orders in Council and flown to the Queen for assent on the royal yacht, Britannia. Parliament was recalled later to validate the policy.

The author is the strongest advocate of Parliamentary sovereignty and executive authority to do what must be done when it needs to be done. Deciding to break up the country with several years’ notice without consent was a very different kettle of fish!

At every main stage of our constitutional development, the people have been asked to provide a mandate through a general election manifesto pledge.

What else could have been done?

David Cameron, in the days before the vote, asked rhetorically, “What was I supposed to do?” The answer was simply this, “Ask”.

The wheel didn’t need to be re-invented for Scottish independence. There was no reason why the consent of the whole country could not have been sought to confirm that Scotland should have a referendum on independence. There was no urgency of time; no pressing emergency to circumvent the normal democratic process of consent. The referendum could have taken place shortly after the 2015 general election – a delay of eight months. Frustrating indeed, but when there was over two years’ notice for the September 2014 vote, such a postponement would not have been outrageous. At least the rest of the country could have validated the UK Parliament’s decision that Scotland should have a referendum. This would have been the least antagonistic option.

This raises an important question of what constitutes democracy. It is not simply exercising a free vote; it is having the freedom to choose. They have the vote in North Korea and China but no choice. This is speculation, but it is entirely conceivable that all the main UK parties would have included 2015 election manifesto commitments to proceed with the postponed independence referendum. The  only alternative may have been UKIP but even UKIP might have flinched at the unwanted perception of denying the Scottish people their voice.

The political reality may have been that there was such an overwhelming consensus that, unlike devolution, independence for Scotland would have been seen as purely a matter for Scotland and the rest of the UK would either have been too apathetic or disinterested in the future of Great Britain to even want to be asked if this course was ok.

Such have politics and society moved. Whilst in 1992, the UK Prime Minister could make repeated appeals to vote Conservative so that Scotland would be denied a referendum on devolution; in 2012 a UK Prime Minister commits Scotland to having a referendum (on independence) without even considering appealing to the voters on the matter. In 1992 Scotland did not have the right to decide its future for itself, but by 2012 so emphatically did Scotland have this right that Parliament could make this decision on its own and with no attempt at seeking consent from the electorate.

It is the essence of politics to note the changing tides of opinion on the big issues; to anticipate the direction the country in its heart of hearts would like to move but may perhaps not yet be willing to openly admit. Thus a policy ignored at one election can sweep all before it at the next.

So in 1992, the Conservatives can openly deny Scotland the right to determine whether it wanted devolution and it gained an extra Scottish MP when the votes were cast!

By 1997 the appeal of the New Labour Party under Tony Blair and a package of modest policies, including devolution, produced a tidal wave that removed every single Scottish Conservative MP from their seats, including the Foreign Secretary, Malcolm Rifkind. Devolution was less of an issue in 1997 than in 1992 – everyone knew Labour would win and the country was comfortable for Scotland and Wales to be given this choice.

Such tides of opinion swirled again in the 2000’s. A Labour Party discredited by lacklustre leadership in Scotland, the disastrous decision to invade Iraq in 2003 and ultimately the financial collapse from 2008 that brought the country and two multi-national banks – the pride of Scotland – Halifax Bank of Scotland (HBOS) and the Royal Bank of Scotland (RBS) to their knees, contributed to the relentless rise of the SNP. And their call was for independence!

Mr Cameron discerned the mood of the Scottish people, read the tea leaves and made the decision to offer an independence referendum. As good politicians should, he sought to take the lead knowing the country may not have been fully ready for this step. Only this time, he was not proposing this fundamental change as a matter for debate or to form part of future policy if returned at the next general election. He was going to implement it with the result known eight months before the next general election.

About John Hartigan

Profile photo of John Hartigan
John Hartigan is author of Betrayal of Britain: How politics failed Great Britain in the early 21st Century now available on Amazon. Founder of the AskBritain movement to restore voters' rights to consent to constitutional change. He is a member of the Labour Party and candidate in local elections. His postgraduate research on the World War One volunteers was published in Midland History. Chartered accountant, former bank manager

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