The Scottish Government’s independence minister Jamie Hepburn has suggested that the SNP should consider the possibility of a multi-option referendum on Scotland’s constitutional future. The following options seem to be logically possible 1) independence, 2) Devo Max, 3) Crown dependency status, 4) the Status Quo, 5) a return to direct rule with the abolition of the Scottish Parliament and the return to the situation prior to devolution.
Everyone understands what options 1, independence, 4, the current situation, and 5, a return to direct rule, entail, but before continuing it is worth exploring what options 2 and 3 involve before going on to discuss the advantages and disadvantages of a multi option referefendum versus a binary referendum in the style of the 2014 referendum where Scotland was simply asked to answer the Yes-No question: “Should Scotland be an independent country?”
Option 3, Crown dependency status can be dealt with briefly as it is not proposed by any major party and is highly unlikely to feature as an option in a future multi-option referendum. Crown dependency status would give Scotland similar status to the Isle of Man or the Channel Islands. These territories are outwith the UK and do not return MPs to Westminster. They retain constitutional links to the UK which is responsible for their defence and foreign affairs, but internally they are independent to all intents and purposes.
Option 2, some form of devo max, would be highly likely to feature as an option in a future multi option referendum. Devo max has been much discussed but little defined. It is generally understood to mean that the Scottish Parliament should have full tax raising and fiscal powers and would control everything except defence, currency, and foreign affairs. Most versions of devo max envisage that Scotland would continue to return MPs to the Westminster Parliament, and most entail substantially greater powers for the Scottish Parliament. However there are many potential flavours of Devo Max. The term can also be understood to mean a self governing Scotland within a federal or quasi-federal UK. The vagueness of the term is such that Gordon Brown’s infamous Vow made in the days prior to 2014’s independence referendum was sold to the Scottish public as ‘devo max.’
Of course it turned out to be no such thing and the key provision of the Vow, writing the Sewel Convention into law was later ruled by the UK Supreme Court as being devoid of legal effect as it ran contrary to the principle of the absolute sovereignty of the Westminster Parliament. The Sewel Convention is the understanding that no Westminster Government would alter the powers of the devolved Scottish Parliament without the express consent of Holyrood, Brown’s Vow promised to enshrine this convention in law, but the Supreme Court ruled that this would bind the hands of future British governments and as such flew in the face of the British constitutional fetish of the the absolute sovereignty of Westminster.
This is major hurdle to any meaningful devo max, however it is defined, there is nothing to prevent a future British government which is hostile to devolution from unilaterally attacking or by passing the Scottish Parliament, as we have seen repeatedly with this Conservative Government. If any package of greater powers for the Scottish Parliament is to be included as a ‘devo max’ option in a future referendum, it is incumbent upon its supporters to give a solution to what we can call the Sewel Conundrum. Given the British constitutional doctrine of the absolute sovereignty of the Westminster Parliament, how can it be guaranteed that a future hostile Westminster government will not abolish, alter, undermine, neuter, or by pass the powers of the Scottish Parliament.
Any proposal for devo max would have to do several things in order to be credible. Firstly it would have to offer a solution to the ‘Sewel conundrum’ described above. How can we know that it would not be undone at some future date. This is all the more important given that both the Conservative and Labour parties have of late espoused full throated English nationalism.
Secondly the proposal would have to offer a precise and detailed package of extra powers for Holyrood. All Brown’s vow offered was a commission to examine extra powers for Holyrood but once the no vote was in the bag there was nothing to prevent the British parties from watering down their previous commitments, and that is of course exactly what they did in the Smith Commission, where we witnessed a race to the bottom from Labour and the Tories, each of whom tried to minimise any extra powers for Holyrood as much as they could without crashing the entire process.
The British parties cannot be allowed to cheat Scotland again, so thirdly they would have to offer not only a precise and explicitly specified set of extra powers for the Scottish Parliament, but crucially they would also have to detail a binding mechanism for implementing those extra powers so that voters could trust that they would not try to go back on their word after the votes had been counted and that Scotland would actually get what it had voted for. That binding mechanism will rely upon the willingness of English MPs to respect what Scotland has voted for, and as we have seen in recent years neither Labour nor the Conservatives have a good record in that regard.
The advantage of a multi option referendum is that a future Labour government is possibly more likely to agree to one, and providing the conditions set out above can be met – which is a very big if – it’s the strategy which is most likely to deliver a significantly strengthened Scottish Parliament. The other advantage is that, assuming the option of abolishing Holyrood is included, a multi option referendum would reveal just how little support there is in Scotland for putting devolution into reverse and would thus delegitimise Conservative attempts to undermine the Scottish Parliament. But realistically that’s unlikely to stop them.
However it’s also a strategy which is less likely to produce a vote for independence. It’s less likely to get Scotland back into the EU, or even back into the single market and customs union, all of which will only be possible with independence. A multi-option referendum divides the vote of those in Scotland who seek far reaching constitutional change, many of whom would support the ‘devo max’ option (however it’s defined) rather than opt for full independence.
However a defeat for independence in a multi option referendum might not be as definitive as a defeat in a binary referendum. The possibility of independence would remain alive as Scotland remaining in the UK would be contingent upon the delivery in full of the ‘devo max’ option assuming that was what won. Unlike 2014, this option will have been specified and set out in detail prior to the vote, along with an explicit mechanism for its delivery. Unlike in 2014, the anti-independence parties would not have been given carte blanche to do as they pleased or to interpret the result in the manner that served them best. Failure to deliver in full explicitly puts independence back on the table, and that too should be made a precondition of any such multi option referendum.
The advantage of a binary referendum as in 2014 is that it maximises the potential vote for independence. This makes it the option most likely to produce a clear vote for independence. But it comes with a big risk, a second defeat for independence would kill off hopes for independence for decades to come. However the other big downside is that it hands a strategic advantage to opponents of independence. It means that the consequences of a yes vote, of independence, have to be set out in detail, but the consequences of a no vote can be left vague and unspecified. Better Together used that to its advantage in 2014. There was intense scrutiny of what independence would mean for Scotland, but there was relatively little attention paid to what a no vote would mean for Scotland. It was that vagueness that allowed Brown to pull his cynical trick with the Vow. The opponents of independence cannot be allowed to do that again. A binary referendum must entail that opponents of independence are forced to put forward detailed and specific proposals, and it must be made clear that if they deceive Scotland again then all bets are off. The bottom line here is that Westminster cannot be trusted, and its deceit must come with consequences.
There is much to consider. Personally I want independence, not devo max, however that is defined. But equally I want what is most likely to produce a beneficial outcome for Scotland. I hope that this piece setting out the pros and cons helps to further productive debate and assists in the articulation of a stratregy for independence.
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