I’ve just ventured over to Peter A Bell’s blog for the first time in several months, and as ever, it may take me a little time to recover. It’s fair to say that most of us have already psychologically moved on from the Supreme Court hearings that will shortly take place. The UK Supreme Court has mirrored its American counterpart by swinging decisively in a conservative/reactionary direction of late, so although there’s still an outside chance it will uphold international law by ruling in favour of democratic self-determination, the likelihood is that the option of an independence referendum will be closed off and we’ll have to move on instead to use an election as a de facto referendum. That’s what the bulk of the independence movement is now looking ahead to – but not Peter A Bell. No, Peter inhabits a world in which the Supreme Court may well allow a referendum, but in which that referendum will turn out to be yet another cunning trap, because it’ll just be a “glorified opinion poll” and even if the Yes camp win, the Scottish Government will then just revert to demanding a Section 30 order so that a “proper” referendum can be held.
Hmmm. In the light of Mhairi Hunter’s notorious tweet, there are arguably legitimate suspicions that the SNP are not fully sincere about the plebiscite election concept and are just viewing it as a crafty wheeze by which yet another mandate – albeit a supposedly more ’emphatic’ and ‘irresistible’ one – for a Section 30 order can be achieved. (For clarity, I’m not saying those suspicions are justified, but it would be hard to argue that there are no grounds for concern at all.) But it’s stretching credibility to breaking point to suggest that a consultative referendum upheld by the UK Supreme Court would be used in the same way. I suppose there might be a scenario in which the unionist side boycotts the referendum, and there are not enough pro-independence votes for it to realistically be the case that Yes would have won a contested vote on a normal turnout. In that circumstance, the Scottish Government might concede that nothing has been settled and that a more satisfactory referendum would be required. But if Yes manage a genuine victory, the Scottish Government won’t be arguing for another referendum – it’ll simply expect the freely expressed will of the people to be upheld and implemented.
What Peter dismisses as a “glorified opinion poll” is any referendum that is consultative rather than binding. But that ignores the fact that most of the major referendums that have been held in the UK fall into exactly the same category. The 1975 referendum on confirming membership of the Common Market was consultative, not binding. So was the 2016 referendum on leaving the EU. That didn’t stop both results being upheld. The same was true of the 1997 referendums on devolution for Scotland and Wales, and the 2014 independence referendum. Probably the closest thing to legally binding referendums of any major significance were the 1979 devolution referendums, because those were not held until after the devolution legislation had already been passed, and so if there had been Yes majority votes that cleared the notorious 40% hurdle, the legislation would have automatically taken effect. But what’s less well remembered is that there was much less automaticity in the event of a different result. The Scotland Act 1978 merely stated that if it “seemed to” the Scottish Secretary – who at the time was the pro-devolution Bruce Millan of the Labour Party – that 40% of eligible voters had not voted Yes, he was obliged to table a draft Order of repeal. So there was some discretion for Millan to interpret the 40% rule in a maximally favourable way for the Yes side (for example by making allowances for the people who were on the register even though they had died or moved away), and even if he felt he had no option but to table the Order of repeal, it was still entirely open to the Labour government to say “a Yes majority is a Yes majority” and whip Labour MPs to vote the repeal down. If those MPs had followed instructions, a Scottish Assembly would have gone ahead in spite of the 40% rule.
The problem was that Callaghan knew there were enough Labour rebels to defeat the government if it went down that road. He apparently decided that he was sick to death of having his “time wasted” by Scottish constitutional matters and thus opted to kick the issue into the long grass. This is the context that is generally overlooked when people wonder why the SNP voted to bring Callaghan’s government down in March 1979. He was being contemptuous towards any suggestion that respecting the democratic decision of the Scottish people was a matter of some importance, and yet he still expected the SNP to prop up his government in return for literally nothing. In all conscience it’s hard to see how they could have done that, although with the benefit of hindsight it perhaps seems clear that abstention would have been the strategically sensible option. That way the Labour government would have limped on until either the end of its term or until Callaghan called an election himself (rumour has it that he was only a month away from doing so), but without the SNP endorsing or legitimising the betrayal of Scottish voters.
But I digress. That was a long-winded way of saying that no important referendum in British history has been truly binding in the strictest sense, and yet the result of every referendum apart from the 1979 Scottish devolution vote (ironically enough) has been upheld. So Peter A Bell is either raising a non-problem or exaggerating the problem considerably. But as ever, he doesn’t actually offer any solutions anyway. He doesn’t want a consultative referendum, which means he wants a binding one. But the only possible way to get a binding referendum is with a Section 30 order, which he doesn’t want Nicola Sturgeon to request. So it appears he wants the Scottish Government to declare a referendum binding without the legal powers to do so, which may or may not be possible but would certainly be utterly pointless.
I sometimes feel that all we need to do is completely restructure the laws of physics and then maybe – just maybe – some of Peter’s strategic advice might just about prove workable. But until then…
