Expert says you can have referendum on Scotland's future without opposition approval

Unless there is a cabinet revolt, which seems unlikely, Alex Salmond plans to postpone the referendum bill until after the 2011 election because the unionist parties will vote it down. But the world's foremost expert on referenda says it is still possible to consult the people. In a piece for The Herald which was overlooked during the summer holidays, Dr Matt Qvortrup,  explained it was not necessary for the SNP to get parliamentary approval for a plebiscite

Dr Qvortrup, author of A Comparative Study of Referendums: Government by the People said:  

"The referendum can be held after a so-called Order in Council, or by a Scottish Statutory Instrument (SSI). That is to say, the First Minister can decide to simply use his executive powers to have a consultation.

He went on: 

"The result would be only advisory. But that would be unimportant from a constitutional point of view. For, as constitutionalists know, all referendums in Britain have been advisory only. The fundamental legal fact in the British constitution is that parliament is sovereign and cannot legally be bound by a decision of the people. Politically, however, the situation is different. It would be exceptionally hard for a majority in parliament to reject the will of the people, as expressed in such a referendum."

Politically, such a move could put the Holyrood unionist opposition and the coalition Westminster government in a very tricky situation. If this consultative exercise included a devo max option alongside full independence, the outcome would certainly be a majority of Scots opting for radical change. That would put the SNP in a powerful position going into the 2011 election and, afterwards, if they formed a government. Whatever happened, the flawed Calman proposals would be holed below the water.

I am aware that this a sharp-intake-of-breath suggestion.  The opposition could sink it with a no confidence vote. Would they dare? If they did, the issues at stake would be made very clear indeed. It should at least be examined.

Comments

[gold guild wars 2]

Actually, come to think of it, that might be AS's assumption-to an extent he's painted himself into a corner with his "once in a generation" statement a few years ago. Perhaps his calculation now is that a combination of a Tory government on one hand, and, on the other, a Labour party that-irrespective of who wins the leadership contest-is likely to be racked by internecine strife between unreformed Blairites and hard-left throwbacks will alienate the Scottish electorate so much that devo max/independence looks more & more attractive. Apologies Dougie, you could be right!

[Gerry Fisher]

For over 70 years the Party has wanted to make the case for Independence. Those pioneers were not stopped by the thought that they might not get sufficent votes - if they had been then we wouldnt be in the strong position we have today.
We have a strong case to make for Independence NOW. There is an even stronger case to make for a referendum - which would get all the votes of those who want I, and a few who believe that it is right for the people to decide. The problem seems to be that, as Gordon Wilson feared, we may have got ouselves into the position of wanting power in Holyrood rather than Independence without necessarily that Power. Unless any one believes that the electoral system , of which we approve in principle, will ever deliver a majority based on a constitutional argument - great thought but hardly brilliant judgment!

[Mogreb-Al-Acksa]

Aye the SNP are making a mistake in "taking it to the people2 next year .....That is if they want to win the election.....perhaps they have decided it's better to loose the election and let Labour implement their own Cuts for the next 4 years.....

The Gray Man will be shaking in his boots, he's in a Catch 22 situation If he wins the election he's stuffed and if he loses he's still stuffed.

[Lox]

Dougie, I don't get your logic. Are there significant number of unionists who'll be disappointed because they won't get to vote no? Actually, come to think of it, that might be AS's assumption-to an extent he's painted himself into a corner with his "once in a generation" statement a few years ago. Perhaps his calculation now is that a combination of a Tory government on one hand, and, on the other, a Labour party that-irrespective of who wins the leadership contest-is likely to be racked by internecine strife between unreformed Blairites and hard-left throwbacks will alienate the Scottish electorate so much that devo max/independence looks more & more attractive. Apologies Dougie, you could be right!

[Loveandgarbage.wordpress.com]

This is a red herring I'm afraid. Dr Qvortrup's argument is flawed in two respects: (a) delegated legislation still needs authority for the act to take place (there isn't any for a referendum that I can see and Dr Qvortrup does not enlighten us as to where such authority may be found); and (b) even if there is authority an SSI or Order in Council can be annulled be negative resolution of the Parliament (under the Standing Orders of the Parliament and general principles that legislatures can act as a check on executive power). So he is wrong to suggest that there is a power (although there may be one lurking that the writers on constitutional law haven't mentioned but which Dr Qvortrup knows about), but even if he was right on that he is wrong to suggest that the power could be exercised without parliamentary intervention. I discuss this in detail at my blog post http://loveandgarbage.wordpress.com/2010/09/06/conjuring-tricks-legislative-competence-and-referenda/ and note that this analysis is supported by Lallands Peat Worrier http://lallandspeatworrier.blogspot.com/2010/09/is-independence-referendum-legal.html#comment-2853097952147535883

[Wardog]

Excellent, let's do it.

[Hamish Scott]

If this can be vetoed by the unionists then there is no effective difference between that and putting the existing bill forward for that to be vetoed. The fact of making the unionists vote a referendum down is more important than the means.

[Gavin Hill]

Excellent digging Joan...

Go Lassie Go! :o)

How has this managed to slip under the radar for so long?

It certainly gives us a hand to play, but we may only have a limited time left to play it....

[David MacVicar]

I also find this a very dubious strategy and Snp strategy has been lacking recently imo.

For anyone interested, I describe my position on BBC Brians latest blog 'tactical switch' - comment #10.

In any case Joans remarks are right in line with my own thinking though I was not aware of the SSI option. And imo the SNP has nothing to fear from a Unionist cabal 'no confidence' vote in the SP. They do have everything to fear of public no confidence in the Street.

Therefore, for me this is a fortune favours the brave situation. The SNP are overcautious they need to seize the initiative while in power and set the agenda, set the key policy issue of the next election - the constitution, or risk that it all slips away for several years.

This risk is major:
British media will provide air time on other issues because ther SNP will not be driving.
On what debate there is the angle will be set from a unionist perespective.

I think this is an area that Joan knows very well. So Joan, now that you have a free-ish hand it would be interesting if you would blog more on the MSM (Scottish media) role and tactics in delivering Scottish news content. And how we should read between the lines?

[Alibi]

They should have pushed it through by this means about 2 years ago, and dared the opposition to try a vote of no confidence. Why is the SNP government playing such a defensive game all the time? It should be all out attack. The unionist media are again herding the mindless sheep towards the corrupt Labour party for next May and no-one seems to be doing anything worthwhile to counter that.

Ian Gray as FM - that should be enough to raise the hackles. Doesn't bear thinking about. "Nightmare on Elmer Street", as some one described that scenario.

[Dougie Kinnear]

That's very interesting, it would be safe to assume that the SNP are aware of this so why not use it? Scared of a no confidence threat perhaps, who knows.

One thing I'm still sure about is the SNP are making a big mistake using the 'take it to the people' strategy next year. There are pro-referendum supporters out there who won't vote SNP just to make that point.