Michael Kelly: SNP ready to play blame game over referendum

WHAT the First Minister claims to be Westminster interference with Scottish democracy, true democrats see as the operation of the rule of law.

The law on the powers to hold a referendum on any reserved matter is clear. It was clear in the Scotland Act whereby the UK parliament set up Holyrood in 1998. It was tested in the courts as early as 2000 in Whaley v Watson, a case which centred on whether the Court of Session had jurisdiction to grant an interdict against an MSP to prevent a bill being introduced at Holyrood. The conclusion was the courts had “the same powers over the parliament as it would have over any other statutory body”.

The Scottish Parliament is not sovereign and can only act within the powers devolved to it by the only sovereign parliament in the UK – that sitting in Westminster. The Scottish Parliament has no powers to conduct any kind of referendum on Scottish independence.

Despite the complaints about Westminster exercising its legitimate influence in Scotland and the rejection of this position now by the SNP, they in fact, through Roseanna Cunningham, welcomed the decision in Whaley v Watson. The view that Holyrood is not sovereign is consistent with the SNP’s view that sovereignty rests with the people, not any body of state. It wants a written constitution and would want, if it cannot break up the Union, decisions of the Westminster parliament to be subject to judicial review.

It is important that this message is widely distributed and understood, because even the BBC mistakenly portrayed the current dispute as one “between two sovereign parliaments”. It is not, and that is why the SNP’s claim that last year’s election victory gives it a mandate to conduct a referendum on separation is unfounded, no matter what it wrote in its manifesto. It could have promised a vote on whether Scotland declares war on China or unilaterally leaves the European Union. It would have been just as meaningless. Yet it continues to assert its right to hold an advisory referendum without quoting any legal authority.

That is why it is good that David Cameron decided to take control. At the very least, he has at last screwed a referendum season out of Alex Salmond. But more importantly, despite the risk he has taken of being portrayed as an interfering toff, he has developed a strategy which is going to cost Salmond his referendum. The offer that has been made is entirely reasonable. The conditions attached to the offer of a legal referendum are not strings. They are constitutional guarantees that the vote will be conducted fairly.

My main regret this week has been in the subsidiary role the Labour Party has played in this debate. The reason has been that senior figures in the party have been divided on whether or not “intervening” was the right tactic. Some felt that by attempting to move the process on they would be giving credibility to the SNP claim that separation was an effective cure for all Scotland’s ills. Others felt that passive resistance was no longer a viable option for the biggest unionist party in Scotland.

That has now been resolved in favour of the latter, but the party still seems to be divided over how now to conduct the debate. Margaret Curran’s approach of shrill sneering at the Tories, as she did in the House of Commons yesterday, is surely the wrong approach. Alistair Darling has it right when he urges all unionists of all parties and none to debunk the myth that separation will lead to a better Scotland.

That united front should be formed now. Recognising that this debate must rise above party politics, the coalition should acknowledge that none of its ministers can credibly lead it. And Ed Miliband, I fear, would be as ineffective as Cameron or Osborne, though not as toxic. Michael Moore, while he has performed strongly this week, lacks the gravitas. Darling should be invited to lead the initiative.

Unlike many commentators, I feel that this week’s events have put Alex Salmond on the back foot. Behind his bluster about the need to allow voters two years to digest this issue lies the real reason why he has rejected this offer of a legally binding referendum. The SNP does not believe that it can win the vote without fixing it. It wants to manipulate the electorate by involving 16 and 17-year-olds. It wants to muddy the waters with a second question. It opposes supervision by the Electoral Commission because it saw the way that body dealt with Nick Clegg’s attempt at a rigged question on proportional representation. The First Minister cannot be allowed to choose the members of whatever commission he sets up to oversee the vote.

Even his claim that postponing the vote as long as possible is delivering an election promise is misleading. That mention came in only the last few days of the May 2011 election when the SNP saw with some disquiet that it might win a majority and might not be able to rely on Labour blocking their non-plan for a referendum. Westminster must not alter one comma of their offer in any sham discussions that may take place between the two governments.

The current rejection by the SNP of the opportunity to hold a legal vote must be seen against its long-term strategy: to blame London for everything. Alex Salmond must know exactly where the policy he re-affirmed this week will lead. As soon as the Presiding Officer signs the referendum bill in 2013, someone will take her to court. The courts will, following the clear intent of the Scotland Act and the precedents established, strike the bill down. This decision will be taken by the Supreme Court in London, which the SNP has, with suspicious foresight, already condemned as incompetent and anti-Scottish.

So Salmond is prevented from holding a referendum which he would have lost and keeps his anti-English grudge alive, allowing him to win the next Scottish election. He’ll be happy with that. And unionists should be too. It limits the amount of harm he can do to Scotland.