A Tale of Two Referendums

Aidan O’Neill QC

Reflecting on the French Revolution in the opening lines of A Tale of Two Cities, Charles Dickens wrote:

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way…”

This passage may serve equally well as a description of the competing claims that were made by the opposing sides in this year’s Scottish independence referendum.

The pro-independence campaign claimed that voting for an independent Scotland would open the way to the best of times, to the age of wisdom, to the epoch of (self)-belief, to the season of Light, to the spring of hope, in which Scots would have had everything before them and which would lead directly to an earthly (Caledonian) paradise.

The pro-union campaign, in response, struck a primarily negative note, seeming unable to find the words to sing the virtues of a British union continuing into the future.   Instead, they said that an independent Scotland would open the doors to the worst of times, that voting in favour of separation would be an act of foolishness and of self-delusion which the voters in Scotland would live to regret in a winter of despair, with nothing before them but a road paved with good intentions and broken dreams.

I fear that similarly competing and irreconcilable claims will be made by the opposing sides in the campaign around the anticipated referendum on the United Kingdom’s continuing membership of the European Union, following the coming general election.   Those wishing the UK to break from the EU will doubtless extol the mythic virtues and heroic vigour of Albion unbound. Those advocating the UK’s continued membership of the EU – like those who campaigned for Scotland’s to stay in the (British) Union – will find it difficult to articulate a positive vision of Europe which will resonate with (particularly English) voters and will, instead, fall back on emphasising the economic dangers and market uncertainties which will come with our “turning our back on Europe” and falling prey to those vices etymologically associated with island life: isolationism and insularity.

Opinion polls have suggested that there is already a split within the British Union about the European Union, with voters in Scotland being generally more favourable to continued EU membership than those south of the border.   But could this apparent divergence of opinion ever become reflected in a future political reality ?   Let me sketch out one scenario where this might become all too real, and the two distinct issues (membership of the British Union, membership of the European Union) which were the subject of the two aforementioned referendums become one.

The Scottish independence referendum shows us that the very holding of a referendum, regardless of its result, can fundamentally alter politics, with the losing side claiming to be victors and the winners apparently retreating in defeat.   It is now clear that the main political beneficiary of the Scottish independence referendum campaign has been the Scottish National Party, despite being on the losing side of the ballot by almost 400,000 votes. But in persuading some 45% of those voting (in a near 85% turnout) to vote for independence the SNP created a new political momentum in Scotland, vastly expanded their membership and energised their core supporters. The main loser in the Scottish independence was the Scottish Labour Party.   Despite being part of a campaign which persuaded just over 55% of those casting their ballot to keep a hold of the British Union nurse (for fear of getting something worse) the Labour Party failed to persuade enough of their traditional core constituency in the Central Belt to march with it.

It seems not unlikely that this switch on the issue of independence among heretofore traditional Labour voters in the Scottish lowlands will be reflected in voting patterns in the forthcoming UK General Election.   This would result in a drastically reduced number of Labour MPs being returned from Scotland, replaced instead by a large band of SNP MPs led in Westminster by their resurrected leader, Alex Salmond.

If the Labour vote in England also fails to hold up, one can then envisage a Westminster Parliament after the next General Election in which: the Liberal Democrats will be wiped out, punished for being junior partners in an unpopular coalition government; Labour, having lost so many previously safe Scottish seats to the SNP and perhaps some English seats to UKIP, will be the second largest party in Westminster; the Conservative Party will again be the largest party, but will not hold an absolute majority, losing some of its seats to UKIP. The result would be, on this scenario, that the balance of power in Westminster would be held by MPs from UKIP and from the SNP.

Should this occur, UKIP would doubtless make it a condition for any co-operation with a minority Conservative administration that a referendum be held as soon as possible on the UK’s continuing membership of the European Union.   Article 50 of the Treaty on the European Union (“TEU”) makes the following provision allowing for a member State to pull out of the EU:

Article 50

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  2. A Member State which decides to withdraw shall notify the European Council of its intention.   In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
  3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

  1. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

But what position might the SNP take on this ?   Given that the achievement of Scottish independence within the European Union is what the party’s central “Scotland in Europe” policy is all about, I suggest that the SNP might seek to make the following bargain with a minority Conservative/UKIP administration in relation to the proposed EU in/out referendum:

  • should a majority of voters in Scotland vote to remain in the European Union while a majority of voters in the rest of the UK vote to leave the European Union, the UK Government will formally commit to negotiate for Scotland to become an independent Member of the European Union in the negotiations which are required under Article 50 TEU for an agreement to set the terms for the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the EU.

There is some precedent for part only of the territory of an existing Member State leaving the EU in the case of Greenland which, in 1985, left the EU after negotiation and agreement among all the Member States, while Denmark continued as a member. One would not wish to push this analogy of England with Greenland too far, of course…..

But the advantages to the SNP seeking to extract such an agreement from the Conservative/UKIP administration (under threat of the Government being subject to a possible no confidence vote in the House of Commons ?) would be immense. It would transform many of the doubts about Scottish independence which swirled throughout the independence referendum campaign. Indeed, it would make independence a “safe option”, in that Scotland’s independence from the rest of the UK would come about only if Scotland’s continuing place within the European Union had been suitably secured and all the uncertainties (whether about keeping the pound or joining the Euro or joining the Schengen area or staying as part of the British and Irish common travel area) had been resolved.   On this scenario of Scotland’s independence from the British Union being simultaneous with Scotland’s accession to independent membership of the European Union (and the rest of the UK’s withdrawal from Europe) the holding of the new status of Scottish citizenship would bring with it the benefits of being an EU citizen.   The siting of corporate headquarters in Edinburgh rather than London would be presented as allowing companies full access to the single European market which might be denied to those who choose to remain based now outside the EU in the rest of the UK.

The economic advantage for the European Union is that it would retain access to Scotland’s fisheries and its energy/oil resources. The political advantage for the EU is that such a scenario involving (a significant part of a Member State leaving the EU) would not establish any precedent for regions seeking to secede from existing continuing Member States (for example Catalonia and Spain) to have any right or expectation of entitlement to their own independent EU membership.

It might be objected that a referendum on European Union membership is just that, and has nothing to do with Scottish independence.   Any tie-in of the EU referendum to possible Scottish independence would be an undemocratic bargain because it would deny the voice of, and a vote for, those whose would vote yes for the UK to stay in the UK, but no to Scotland staying in the EU without the rest of the UK.   But it has to be said that this denial of voice and vote already occurred in the context of the Scottish independence referendum when in the last days of the campaign the pro-union politicians announced that a “no” vote against independence would not now be regarded as a vote for the maintenance of the political status quo, but instead would be interpreted as a vote in favour of further significant devolution to Scotland although a question on this very issue had previously been vetoed by the UK Government.

Perhaps all these musings tell us is that referendums are no way to conduct politics in any mature multi-party Parliamentary democracy.   They do not, after all, give straight answers to straight questions.   Their very calling may be the result of political manipulation, and their results remain subject to radical political re-interpretation.   They necessarily misrepresent difficult and complex political issues by reducing matters down to but one question, which can only be answered yes or no.  They require certainty and finality in the face of the uncertain and the unknown.   They do not allow for a multiplicity of voices or viewpoints. They leave no space for compromise.   Information and properly informed discussion is lost in their barrage of unverifiable claims and unfalsifiable counter claims as to what the future holds from each opposing side in any referendum battle.

If we want to seek an effective revolution in our constitution – whether by ending the British Union or leaving the European Union – let it be done in the proper forum by the proper procedures; namely the messy and often unsatisfactory debate and votes of our Parliamentary representatives, rather than having them abdicate difficult constitutional decisions to a plebiscite.   It is only within the Parliamentary forum that we can begin to instantiate that necessary triad within a democracy, of government of the people, by the people, and for the people.

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