Scotland's independence referendum: response to UK Government consultation

Abstract

Ekklesia welcomes a referendum on Scottish self-governance and the positive debate this can help create on the constitution, reformation and governance of the constituent nations and jurisdictions of what is presently designated the United Kingdom of Great Britain and Northern Ireland. In this document we outline the responses we have given to questions posed in the UK Government's consultation, which ended on 9 March 2012, concerning the authorisation, conduct, monitoring, content and timing of the referendum on Scottish independence. Our underlying view - based on the moral principles of subsidiarity - is that these matters should be shaped and determined by the people of Scotland under the auspices of their elected Parliament, in consultation with Westminster. Parallel comments have been made by Ekklesia to the Scottish Government's consultation on the referendum, ending on 11 May 2012.

PREAMBLE

Ekklesia welcomes a referendum on Scottish self-governance and the positive debate this can help create on the constitution, reformation and governance of the constituent nations and jurisdictions of what is presently designated the United Kingdom of Great Britain and Northern Ireland. (See ‘Scotland's independence referendum consultation’, 29 January 2012, http://www.ekklesia.co.uk/node/16177).

As a think-tank concerned with the ethical and peaceful use of power, we recognise that issues concerning the timing, framing, legitimation and conduct of a referendum on Scottish independence are technically distinct from the different views participants and proponents may eventually have on its subject. Ekklesia staff and associates are likely to end up holding a variety of views on and around the question/s finally posed in the referendum.

However, just as we support the opportunity for a constructive conversation and broad public dialogue in the run-up to a vote on the issue of Scottish independence, so we affirm the desirability of the Scottish people themselves, through the duly elected Scottish Parliament in Holyrood, determining the final shape and conduct of a referendum on their own future. This is not something that can or should be imposed or constrained by the UK Government.

In this regard, we note the long commitment of many civil society, religious and secular bodies to the notion of subsidiarity – the moral and democratic organizing principle that matters of power governing people and planet ought to be handled by the smallest, lowest or least centralized competent, accountable and appropriate authority. This is reflected in the European Charter of Local Self-Government, in Catholic Social Teaching, and elsewhere.

In the light of those preliminary comments and that affirmation, we offer the following feedback in relation to questions posed by the UK Government.

1. What are your views on using the order making power provided in the Scotland Act 1998 to allow the Scottish Parliament to legislate for a legal referendum in an Act of the Scottish Parliament?

An order under section 30 of the Scotland Act 1998, subject to the agreement of both parliaments, is an appropriate mechanism to recognise the right of the Scottish Parliament to conduct a legal referendum through an Act of the Scottish Parliament. We note that referenda conducted in the UK (such as the 2011 AV referendum) are customarily advisory and consultative, with the expectation that the outcome will be a formal, legal recognition and implementation of the result. In principle the referendum on Scottish independence is no different to this. The Centre for Constitutional Law at the University of Edinburgh and other authoritative legal commentators have confirmed the position that a consultative referendum is within the current competence of the Scottish Parliament. The UK government should act in accordance with the political legitimacy and moral authority such a referendum would carry, and an agreement on mechanisms for order making powers would be the best way to ensure a congruence of legal, political and moral instrumentality in this matter without unnecessary delay.

2. What are your views on the UK Parliament legislating to deliver a referendum on independence?

The UK Parliament should recognise the outcome of a properly conducted referendum conducted by the Scottish Government, based on the principle that the people who live in Scotland are those who should make the key decisions about Scotland’s governance.

3. What are your views on whether the Scotland Bill should be used either to: (i) give the Scottish Parliament the power to legislate for a referendum; or (ii) directly deliver a referendum?

The preferable arrangement would be for the democratically elected Scottish Parliament’s power and responsibility to conduct a legally binding referendum to be properly affirmed and recognised by Westminster. We note that the Scottish Government has expressed an appropriate willingness to work with the UK Government to agree a clarification of the Scotland Act 1998 that would put the referendum on a secure legal footing. We would encourage both parties to do so as soon as possible, without the further attaching of conditions to such an order on the part of the UK Parliament or the Secretary of State for Scotland. It would not be appropriate or democratic for the UK parliament to seek to deliver a referendum on Scottish self-governance outwith the authority of the elected Scottish Parliament.

4. What are your views on the oversight arrangements for a referendum on Scottish independence?

We believe that this referendum should be run in exactly the same way as an election, with local returning officers having an operational responsibility for the poll and count, under the direction of a Chief Counting Officer. Independent oversight and monitoring of the process is important, under the auspices of the Scottish Parliament as the responsible body acting in a legal and appropriate manner at all times.

5. Do you think the Electoral Commission should have a role in overseeing a referendum on Scottish independence?

The Electoral Commission should be responsible for regulation of the campaign and for oversight and reporting the referendum process. In this role it should be accountable to the duly elected Scottish Parliament, within its democratic remit to ensure a free, fair and legal referendum vote. Restrictions on Government publicity should apply in the run-up to the polling day as they would for all other political elections. In addition we note the proposed spending limits in the Scottish Government’s Consultation of £750,000 for the lead campaign organisations designated by the Electoral Commission, £250,000 for each political party represented in the Scottish Parliament and £50,000 for others who wish to spend more than £5,000 on campaigning. This approach, which meets our broad approval, is based on current legislation applying to UK-wide referendums, with the limits tailored to reflect the fact that the referendum will be restricted to voters in Scotland.

6. What are your views on which people should be entitled to vote in a Scottish independence referendum?

We strongly support the enfranchisement for the purposes of this referendum of all Scottish residents of 16 years and over. With this modification, eligibility to vote in the referendum should be the same as for Scottish Parliament and local government elections, and as for the 1997 referendum on Scottish devolution. This reflects the internationally accepted principle that the franchise for national and regional constitutional referendums should be determined by residency within the nation or region.

7. What are your views on the timing of a referendum?

Given the time needed for proper public consultation, arrangement, provision, debate and campaigning in Scotland, and given the complexities and verifications involved in these processes, it seems desirable that the referendum should be held not less than 21 months hence [December 2013] and not later than November 2014. A date before or between June 2014 (the European Parliamentary elections) and May 2015 (the last date for a UK Parliament General Election) would seem advisable, allowing both for summer holidays and for the need to allow political adjustment prior to a UK poll.

We note that the Scottish Government has proposed a date of October 2014. This conforms to the timetable considerations we have set out above, but could be subject to confirmation in the light of outcomes from the Scottish Government’s consultation on the referendum, ending on 11 May 2012. However, we accept the principle that the duly elected Scottish Parliament should be responsible for establishing the final date of the vote, in a fair-minded and responsible manner.

8. What are your views on the question or questions to be asked in a referendum?

We recognise that the weighting and balance of a question or questions asked in the referendum is a delicate and important matter. We recognises potential NPOV [Neutral Point of View] challenges to the question ‘Do you agree that Scotland should be an independent country?’ – with the tick/cross options of ‘yes’ or ‘no’. The modified question ‘Should Scotland be an independent country?’ – with the tick/cross options ‘yes’ or ‘no’ may be preferable. The yes/no option is preferable to an agree/disagree option because of public and media contingencies.

We hope consideration may be given to the use of the term ‘[fully] self-governing’ in place of the word ‘independent’, in order to reflect more precisely the nature of the proposition with less regard to emotive factors concerning the terminology of ‘in/dependence’ and ‘union/disunion’.

We do not agree with the UK Government’s negative characterisation of a potential second question, as initially set out in the Scottish Government’s 2010 consultation on a draft Referendum Bill.

However, these are advisory comments. We believe that the Scottish Parliament, as the body duly, legally and democratically responsible for the free and fair conduct of the referendum, should have the final say on the question, and upon the matter of an additional question on so-called ‘devo-max’ or ‘devo-plus’, as part of the determination of the timing and terms of the referendum and the rules under which it will be conducted, subject to the scrutiny of the Electoral Commission.

We would wish that the question/s should be determined on the basis of wide and non-partisan consultation with the Scottish people and with the comparative research findings of expert academic, constitutional and election analysts.

9. What are your views on the draft section 30 Order?

As noted above, transfer of new powers from the UK Parliament to the Scottish Parliament for conducting the referendum should in our view come without further conditions of the kind contained in the UK Government Consultation document, Annex A (Modification of Schedule 5).

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THE RESPONDENT: Ekklesia (http://www.ekklesia.co.uk/about) is an independent think-tank seeking to examine the social, political and cultural role of religion, beliefs and values in a creatively critical way. It also aims to advance ideas in a range of policy areas from a forward-thinking, theologically resourced perspective. Ekklesia is deeply rooted in the Christian tradition, but not tied to any one denomination or major church body.

SUBMITTED BY: Simon Barrow, Co-Director, Ekklesia, Edinburgh, EH6.

* More on Scottish independence from Ekklesia: http://www.ekklesia.co.uk/scottishindependence

* Ekklesia's parallel response to the Scottish Government consultation on the referendum was submitted on 2012-05-10 at 23:10:42.