Defenders of the Union should argue their case on the merits, rather than hide behind technical legalistic points

10th May 2021

Those who are opposed to a further independence referendum for Scotland are making the same mistakes as Remainers in the Brexit debates.

On Twitter and social media generally – and in mainstream media – those opposed to a referendum (and thereby to independence) are taking the following techincal points:

– that the last referendum was supposed to be ‘once in a generation or lifetime’

– that there is no majority for the Scottish National Party in the Scottish parliament

– that enabling legislation is outside the legislative competence of the Scottish parliament

and so on.

As a veteran of similar debates over Brexit, these technical – almost pedantic – contentions seem familiar.

There were those who argued that the Brexit referendum had no political purchase because it was ‘advisory’.

There were others who – until quite late in the Brexit process – denied that Article 50 had actually been triggered and sought to make legal challenges on this basis.

The feature of these positions is that they said nothing about the merits – or otherwise – of Brexit.

And similarly the pedantic legalistic objections to a further independence referendum for Scotland also say nothing about the merits of either a referendum or independence.

Indeed, each time one of these pedantic legalistic contentions is made, an opportunity is lost to make a case on the merits of the Union.

As I can aver as a pedantic legal commentator, few if any voters are influenced in their vote by pedantic legalistic points.

The impression given by reliance on such contentions is that they are substitutes for arguments on the merits.

A confident supporter of the Union should say about a referendum ‘bring it on – and let me show you the merits of the Union’ – rather than trying to evade or avoid a referendum on technicalities.

That is if there is a case for the Union on the merits.


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21 thoughts on “Defenders of the Union should argue their case on the merits, rather than hide behind technical legalistic points”

  1. I don’t think it’s a technicality to assert that referenda should only be held rarely, and that a referendum decision on any particular topic should settle the matter for the foreseeable future. Otherwise, the uncertainty generated by asking the same question over and over again is just as disruptive.

    Also, I don’t think it’s justifiable to call for a second referendum when the previous one went the “wrong” way and oppose it when it went the “right” way. Any argument for a second Scottish independence referendum this soon after the previous one is exactly the same argument as that for a second Brexit referendum, and the argument against either is exactly the same as the argument against the other.

    Now, of course, there are plenty of people who would like to see the Brexit referendum overturned by a second vote, too. But if it is, how can a third be denied, and then a fourth, and so on? Sentiment in the UK as a whole may change with respect to the EU just as sentiment in Scotland may change with respect to the UK. But repeated referenda on the same topic risks creating a political hokey-cokey if the result is close. And it’s only if the result is close that there is any call for a second referendum – if it’s overwhelming, the losers just go away and lick their wounds.

    So the argument against repeated referenda on a short timescale is constitutional rather than technical. Some would argue that any referendum is unconstitutional – that we have, historically, elected our representatives to make those decisions. For better or worse, that principle was overturned in 1973, but we are still a long way from the Swiss model where every important decision is put to the people.

    It may be, of course, that we do want to go down the route of more frequent referenda. But, rather than make that decision by default, as a result of accepting a repeat referendum in Scotland (or on brexit) a short time after the previous one, we need to have that debate on a higher level.

    What should be the normal minimum timespan between putting the same question (or variants of it) to the electorate? We need to ask, and answer, that question, first. And only then, if the answer is a short enough timescale to countenance a repeat Scexit or Brexit poll in the current parliament, do we then go on to consider the more narrow merits of such a poll itself.

    1. I strongly share your view that representative democracy is better than governing through referenda.

      Brexit is definitely something that would have been decided through representative democracy, I think it’s likely that a Conservative government would have been elected in due course on a manifesto commitment for Brexit which would have been a smoother way to execute it.

      The issue of Scottish independence is that there is majority for it in the Scottish Parliament and an even bigger majority in favour among Scottish MP’s.

      Indeed, Margaret Thatcher’s position when asked about Scottish independence is that there should never be a referendum, simply that the SNP should gain a majority of Scottish seats.

      If we are going to overrule elected representatives with a referendum then we need to look at what was put to the people.

      HM Government wrote to every household in Scotland pointing out that independence would put Scotland’s EU membership at risk. It featured on posters and was a key part of the campaign.

      So there is a strong argument that the question put now needs to be asked again as the basis for it has changed. On a personal basis, I voted No last time but I would have voted Yes had I known that a hard Brexit was on the way.

    2. A second independence is necessary now (but in practice it may be 2023 or 2024 before it can happen) because the constitutional context of the UK has changed so fundamentally since 2014. In 2016, UK citizens – but not the Scots nor the Northern Irish – voted to dismantle the framework that sheltered and secured the Good Friday agreement and the Scottish devolution. It was the benign, unifying umbrella of the EU that allowed the Irish settlement and the devolution of powers to Scotland. So now a new settlement has to be made in both Ireland and Scotland.

  2. All very valid except that the pushing of the argument that the 2016 referendum was advisory came about because the result was too close to be conclusive but the government under Cameron had dug itself into a hole.

    1. Au contraire. People were saying well before the European Union Referendum Bill was enacted that, in legal terms at least, it was only advisory and not binding.

      For example, page 25 of the briefing paper published by the House of Commons Library on 3 June 2015, just before second reading of the bill, stated in clear terms: “This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions.”

      The bill did not set out any mechanism to implement the referendum decision, unlike for example the Parliamentary Voting System and Constituency Act 2011. (Poor Lib Dems, done up like a kipper: just imagine how different things might have been since 2015 under an AV voting system. But it reminds me that the sixth boundary review was abandoned twice: a new one started this year and is due to report in July 2023, which may be before the next general election.)

      Despite there being no legal mechanism to implement its result, the government chose to interpret the result of the Brexit referendum as giving them a binding instruction at a political level.

      As you will no doubt recall, there was even a court case to determine how the necessary Article 50 notification should be authorised – the government’s contention that it was a matter for the royal prerogative was rejected – leading to the passing of the European Union (Notification of Withdrawal) Act in March 2017, with the notification itself delivered on 29 March 2017.

      It all feels like ancient history now, but better to recall what actually happened without layers of retrospective gloss.

  3. There are striking similarities between the failed Remain campaign and the Unionist campaign underway in Scotland.

    Both campaigns are deeply depressing, focus on spreadsheets and legal small print and have succeeded in moving large numbers of voters in the opposite direction to that intended.

    Scottish Unionists should be talking about how Britain benefits from Scotland’s strength, not insulting Scots and claiming their country is an economic disaster that’s only viable with an English bailout.

    Incidentally, imagine if the Remain had campaign had used the slogan “Europe Needs Britain’s Strength” rather than the other way round?

  4. Frankly, as a democrat, I do not think that the Scots can be denied a further plebicite. The supporting text to the last one was that “only a vote for the status quo could ensure EU membership”- plainly that was a croc. The situation is radically different and deserves to be revisited because of the duplicity of the Tory Party.

    I think I could come up with some compelling reasons to preserve the Union, but none of them stand if we have continuing, populist Tory rule – many Englishmen would vote for independence if it meant getting shot of Johnson and his cabal of self-serving chancers.

  5. “if it’s overwhelming, the losers just go away and lick their wounds.

    I don’t think you can argue that. Harold Wilson’s referendum had a strong vote for staying in although whether it could be called overwhelming is because the status of ‘overwhelming’ is ill-defined. This did not stop Farage and the ERG wanting out from at least as early as 1993. Those who claim that the European issue destroyed Mrs Thatcher must put that date to sometime in 1990 at the latest.

    On the issue of making a case for the Union – it ought to be made to show the benefits to the whole of the UK. I would say that all of the arguments I have seen are based around how Scotland, Wales and NI could not manage without England. Or in NI’s case how if Ireland re-united it would be a drain on the Republic. I have yet to see the benefits that Scotland, Wales and NI bring to England extolled.

    1. “I have yet to see the benefits that Scotland, Wales and NI bring to England extolled.”

      One is tempted to say a beautiful landscape for leisure pursuits away from other English, but also preferably away from Scots, Welsh and Irish.

      More seriously, your challenge is particularly interesting in NI’s case. What benefits does NI bring to England by dint of being in the UK that the RoI cannot bring as an independent country the same distance away?

      Union versus independence already manifest!

  6. Good approach David. If you are feart of it, you lose.

    But Johnson et al are fair dampening enthusiasm for our once splendid Blighty.

  7. quite right. Each delay builds the sense of grievance and increases the Scexit vote. Spain has made the same mistake with Cataluñia.

    The real issue is whether there is a strong positive case for Union. Brexit showed how hard it is to beat emotion with a “yes but” pro-case and dire warnings. Union lacks a strong positive case: it is much more “better together because leaving will damage Scottish GDP”.

  8. A referendum, any referendum. is fundamentally undemocratic. Our democratic system is based upon consensus not winner take all. It has evolved in process and structure based on the notion that the nation is a single settled homogeneous society having for the most part common values, interests and social relationships i.e. one community. In this context a first-by-the post system with the community divided-up into single member constituencies makes perfect sense. If we all think more or less the same about life then our differences must be fairly trivial and the differences between political candidates must be similarly trivial or at least acceptable to the loser. Achieving a plurality of the vote making the winner is a feature not a flaw in the system.
    It has become increasingly evident that this nation, this society, this community is not homogeneous but rather contains many different and irreconcilable factions, traditions, values and socio-economic beliefs that cannot be reconciled within the parliamentary system and structure which now exists.
    The very meaning of democratic governance along with the structures, processes and procedures needed to support it need to be re-thought and redesigned. But by whom? For better or ill the present system has evolved over centuries on the basis of experience without any grand plan or blueprint and without unmanageable stress on the system. I think that period is over. How and where do we go from here?
    Clearly a referendum result on any serious national project could not be considered democratically legitimate with a simple 50+1 vote majority and by so doing trampling on the democratic rights of the 49 vote losers.

  9. Bring back Alastair Darling! A grown up in a room of pouting, grandstanding, incompetent toddlers – very much as last time round. But would he work with the lying shyster? Very likely not.
    It’s not a case of either/or but of all the underlying arguments (a few below) and then the technical arguments.
    1) Scottish independence is a really bad idea. The United Kingdom for all its many and manifold faults has served its constituent countries extraordinarily well, and, given half a chance, will serve those countries extraordinarily well in future. This argument is made much more difficult by the fact that the parallel ugly sister. Brexit is another really bad idea, saddled on us by the lying shyster and his coterie of stooges in Parliament and fellow mephistophelians in the press, but just maybe enough time will elapse before another Scottish referendum that even the most hardened Express/Sun/Daily Mail/Telegraph readers will have to admit that perhaps Brexit (and by extension Scottish Independence) wasn’t such a bright thing to do. Had a longish chat with a friend today who imports wine. A nightmare. I hope the lying shyster, when he reaches the first circle of hell that he so richly deserves, will suffer an eternity of punishment completing unnecessary customs forms. Anger doesn’t come close to expressing how I feel about good people having to waste precious hours and hours of the too few hours we have in life on completely otiose and irrelevant paperwork foisted on them by the lying shyster and his crew of toadies.
    2) The SNP’s track record as a governing party is terrible. On key issues – life expectancy and education the SNP has completely failed. The rate of drug deaths in Scotland is shameful. This is wholly within the reponsibility of the Scottish Government. Education, formerly a wonderful differentiator of Scottish excellence, has been squandered. The SNP, as all nationalist groups, will always find it easier to blame the other, than look in the mirror and extract the plank from their own eye.
    3) The numbers don’t work. Again like Brexit, the Scottish voters are asked to believe and believe more earnestly and heartfeltly and voilà! the deficit will, like magic, disappear. It won’t.
    4) Only after all these and the many other reasons why Scottish Independence is a terrible idea, should the argument turn to the technical flaws.

    1. ” Scottish independence is a really bad idea. The United Kingdom for all its many and manifold faults has served its constituent countries extraordinarily well, and, given half a chance, will serve those countries extraordinarily well in future”

      With respect, that’s an assertion, but not actually an argument. Your comment is the equivalent of a remark about a marriage, which was going strong for a number of years. Given half a chance it might still go strong for a further number of years, but if one of the spouses no longer wants to be married, then this will not be persuasive.

    2. “The SNP’s track record as a governing party is terrible”

      Again, this is an assertion, which you do not substantiate.

      With – at least – equal justification I can claim that the SNP-led government has done an ok job. Certainly as a ‘customer’ of both UK and Scottish government services, I am far less content with the Westminster/Whitehall outfit than with Holyrood.

      Also, do you realise that your post follows the pattern mentioned in the post itself, that it actually does not contain a single positive argument FOR the union – do you think that a campaign built on ‘the past was good and the future might be good again’ and ‘the Scottish government is useless’ and ‘you’ll be really poor’ will be persuasive?

  10. Whether referendums can be held and subject to what conditions, and at what frequency they can be held, are not questions that go to the merits of independence versus the Union. They include technical and constitutional questions on which lawyers are well placed to assist. To that extent they raise issues on which your views as a pedantic legal commentator might be of interest.

  11. Nationalism is out of the box. There is nothing that little English Nationalism can do to close the lid on that box.

    Through many different routes the Celtic people will gain Independence, reaffirm their European identity, and secure their long term economic well being within the EU.

    English Cities: young, vibrant, diverse, confident, strong, will flex their economic muscle in the face of rancid illiterate Little English Nationalism. The long term economic well being of the people of England is in its brains, and it’s research and development. And this lives in its cities. Please note they are voting Green, LD and Labour.

    Since the time of Good Queen Bess the ebb and the flow, and the warp and the woof, of British Foreign Policy has rested on one key core principle: never never never allow Europe to be dominated by one political power block that we are not a part of. This policy has kept the country safe and, for good or ill, kept the Union together.

    No Head of a British Government has been so stupid as to abandon this Foreign Policy since Queen Elizabeth the First. Until Brexit. Johnson has no Statecraft and does not know what he is doing. The country no longer has a coherent Foreign Policy, nor is it safe, nor is there any more a basis on which to hold together the Union.

    Good Queen Bess is furious with Johnson and one day, in The Tower, she will wreak justice on his soul. We shall sell tickets for seats in the public stalls, and raise enough money to fund every charity in the country for a hundred years.

  12. The word ‘should’ is carrying a lot of weight here. Primarily this is a political matter with legalistic complications. Nothing to do with fairness, expect some dirty dealings.

    Plainly Scottish independence would not suit Boris at all. If he can prevent Wee Nicola getting any traction he will. No doubt the Attorney General will be instructed to come up with some excuse why Scotland must stay shackled to the dead hand of Westminster.

    But Nicola has time on her side. The only way is down for the English economy, Scotland’s GDP/head is well below other northern nations – Denmark, Finland, Sweden, Norway. Scotland probably could do better away. Scottish industrialists and the fisheries would probably be better off in the EU. How the German taxpayer would feel is less clear but schadenfreude is a wonderful feeling. Then if Scotland, why not Wales.

    Boris will have to send a lot of cash over the border to keep the Scots on board. To lose Scotland would be very very embarrassing, possibly fatal. Nicola has got Boris where she want’s him. A slow burn comedy I think.

  13. The English-Scottish relationship has been good for a long time. It would be great shame if a purely temporary issue were to be the cause of its destruction. Is Westminster’s current disdain for the desires of Scots temporary? Is the damage long lasting or is it a short-term problem? I don’t think we can say yet. It will take time for things to settle down. And maybe when Boris is gone, as one day he will be, things will be very different.

    So I think there is a good argument for wait a bit and see in the present situation, to see whether the current problems are temporary, or long term.

    In general, votes go up and down with temporary factors. The risk of having frequent repeated votes is that it only takes one vote to precipitate change that is hard to undo. It would be wrong if it was temporary sentiment that precipitated change. The Comoros voted for independence from France, and later realised it had been a extremely terrible idea. But it couldn’t be undone. The Comoros are now one of the nastiest and poorest places on the planet.

    Dissolving unions is usually bad for economies, at least in the short run. And unless independence presents new opportunities, the damage can be present in the long run too. Ireland’s independence was terrible for its economy, and the damage persisted for many decades. But few people ever even mention it. Other issues were more important to Ireland’s choice, and they were long term, not short term.

  14. The Unionists obviously expect to lose, otherwise they would be all for it. I doubt there’ll be another one in my lifetime.

    Having Scotland in it must be good for the UK given how hard some are trying to keep us against our will.

    I’M sure with a bit of effort the Unionists could win – increase the settlement (it can always be shrunk again later), a bit more freedom, etc

  15. Your point about the referendum is well made.

    However, I believe that the government is playing for time, hoping that the SNP’s coalition of supporters fragments. If the Conservatives can successfully position themselves as the main opposition to the SNP in Scotland, they would benefit from a resurgence in Unionist sentiment.

    Exogenous factors could include the replacement of Johnson by a less polarising figure to Scottish eyes (and ears), and/or divergent economic fortunes for the UK and eurozone.

    But such tactical triangulations fail to take into account the slow process of cultural drift that is pulling England away from the Celtic countries.

    UKIP and its antecedents were largely English in origin. The rejection of communitarian politics by formerly Labour-voting workers in England since the 1990s has not occurred in Wales or Scotland. The SNP has a similar communitarian basis to Labour.

    This is particularly relevant as upcoming reforms in England will only deepen the cultural divide. Yet the Conservatives will need to stoke cultural tensions to keep their historically bizarre corporatist (rentier/billionaire/CD1) electoral coalition together.

    Perhaps given the likelihood of defeat and the breakup of the UK if a referendum were held before 2024, plausible legalistic excuses might be the best route for the government. Unless something turns up.

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