Official Report 792KB pdf
Welcome back. Under agenda item 2, we will conclude the taking of evidence for our inquiry on the legal mechanism for any independence referendum. We are again joined by Angus Robertson, Cabinet Secretary for Constitution, External Affairs and Culture, and I welcome Luke McBratney, deputy director for elections and constitutional projects at the Scottish Government.
We have heard evidence that, in the wake of the Supreme Court ruling, the Scottish Parliament does not have the competence to legislate for another independence referendum. Is there any merit in seeking to formally establish the circumstances in which a referendum could take place?
There is, for any number of reasons. First, in a democratic society, when a party wins an election on a manifesto, consent from the losing side through the acknowledgment that the Government has a right to make progress on delivering its manifesto is important for the democratic health of a country. Unfortunately, on the constitutional question, things have moved on since 2014. A range of rhetorical devices have been used to stop a referendum on Scottish independence taking place, notwithstanding the repeated election of a majority of members of the Scottish Parliament on a mandate for there to be such a referendum.
We need to separate something out. My point is not about whether one is for independence or not. As democrats, we live in a country in which referenda have been used as a mechanism for agreeing constitutional change. We have the precedent of an independence referendum and the way in which that worked. In Northern Ireland, we now have a mechanism that can determine constitutional change through the ballot box—a de jure mechanism. We have a de facto mechanism for England; given 85 per cent of the population and an overwhelming majority in the UK Parliament, if there were a move for constitutional change in England, there would be a mechanism through Westminster for such a change. However, no formally acknowledged mechanism exists in Scotland or Wales.
Convener, as I am sure you have seen, there is a long list of statements from past British Prime Ministers and leaders from across the political spectrum at Westminster—and, indeed, in the Scottish Parliament—that it is for the people to decide on the question. That being the case, surely there must be a mechanism for it.
As a democrat, for me there is only one route, which is the ballot box and a process that is legal, constitutional and agreed, because that is a requirement for international recognition. The fact that we have already done this tells me that there is a way of doing it, but it requires those who oppose Scottish independence to acknowledge, as democrats, that people have a democratic right to determine constitutional change in Scotland.
I acknowledge that the history of Northern Ireland is not directly comparable with that of Scotland. However, it is not sustainable that, although a mechanism exists for determining Northern Ireland’s constitutional future, one does not exist here. That needs to change. The mechanism does not need to be complicated, but it needs our agreement, as democrats, that the people of Scotland should be able to determine their future in relation to becoming an independent state. That is for our Parliament to determine.
We will move to questions, and I will bring in Mr Brown first.
There is a difference between the UK and Spain, for example, in that Spain does not allow a legal mechanism for a referendum on the independence of its various constituent parts. Spain also does not acknowledge the right to self-determination for those areas.
In the UK, various Prime Ministers and the Smith commission have stated explicitly the idea that Scotland should have the right to decide on its own future. That is in the Smith commission report, which the UK Government signed up to. In a recent change to the constitution of Turks and Caicos Islands, the UK Government recognised and facilitated a legal mechanism and, as the cabinet secretary just mentioned, there is a mechanism in Northern Ireland.
It seems to be the case that the UK acknowledges and apparently supports the right of Scotland to exercise self-determination, but that can be done only at the whim of a Westminster Government. When it is decided by somebody else, self-determination is not self-determination. That cannot be. If the right to exercise self-determination has to be approved by somebody else, that is not self-determination. Is that the key point here?
In summary, the evidence that we have heard so far shows that the UK says that it recognises Scotland’s right to self-determination, but it is deliberately withholding Scotland’s ability to exercise that right. The UK keeps jealously to its own heart the idea that only the UK Government can decide on that and, in that way, it can prevent that right from being exercised. From what we have heard, the fact that the UK recognises the right but refuses to facilitate the exercise of it seems to be very odd in the international context.
I agree. That is contradictory, not just in terms but in publicly stated positions. As stated in June 2014, the position of the leaders of the Scottish Conservative and Unionist Party, the Scottish Labour Party and the Scottish Liberal Democrats was:
“Power lies with the Scottish people and we believe it is for the Scottish people to decide how we are governed.”
Also in 2014, the Smith commission stated:
“nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose.”
Another very strong quote states:
“Mandates come from the electorate in an election ... it should be the people of Scotland that decide when the next referendum is.”
That quote is from Anas Sarwar.
I could go on. It does not matter whether politicians—I could go back to Margaret Thatcher, John Major, Theresa May and so on—have all said similar things, there has been an acknowledgement, even among people who do not support Scottish independence, that self-determination, which was the key point in Mr Brown’s question, is an inalienable right of the people of Scotland. That being the case, being repeatedly unprepared to answer the simple question, “By which mechanism can Scotland secure a referendum on independence?” is withholding the right of self-determination.
It is a denial of democracy. A number of rhetorical flourishes are thrown into the debate, which are there to stymie, when people say that now is not the time and that things are required to be the settled will. There is a whole series of things that are absolutely and totally irrelevant to the simple question that you have asked, which is about what the mechanism is.
10:30I think that, as democrats, we all agree and would avow that the only route for significant constitutional change is through the ballot box. The question for all of us to answer, without cavilling at that, is about how that can be secured. The good news is that we have done it. When the Scottish Parliament election happened in 2011, the UK Government acknowledged that a majority in the Parliament had been elected on a manifesto commitment that a referendum should take place, and that is exactly what happened.
We have now had a number of elections since, including those for the current Scottish Parliament, in which a majority of members were elected on a manifesto commitment that there should be a referendum, yet a referendum is being blocked. We have the de facto blocking of a referendum, and we have the de jure challenge from others who oppose independence, although not from all of them—there are some observers out there who have made other points. I have read commentary from the likes of Kenny Farquharson, a Scottish columnist who did not support Scottish independence, that there should be a mechanism.
There must be a mechanism. The issue is not going to go away. I acknowledge that there are strongly held views for and against independence, and for and against the union. However, that is not the question before us. The question is, what is the democratic mechanism at the present time? At least half the Scottish electorate support Scottish independence, and a higher percentage believe that one should be able to make a decision about it.
There is a precedent, and there are different ways in which this happens. Mr Brown mentioned other parts of the world. The National Assembly of Québec has the right to decide whether there should be a referendum, but we do not. That is perfectly possible elsewhere, and it should be possible here. The longer the current situation goes on, the more unsustainable and corrosive it gets for our democratic culture, because it is a roadblock on democratic decision making and a denial of a democratic right of self-determination.
You are right to say that the various parties that oppose a referendum have not been able to state what the mechanism is for exercising a right that they acknowledge. That seems absurd, but that is where we are. In fact, none of the unionist members of this committee has offered any explanation of what the mechanism might be.
Do you have an idea of why, when it was agreed in 2012 that a referendum would be held in 2014, the UK Government felt that there was a compelling mandate? Why have we all had this “once in a generation” and “now is not the time” prevarication that we have talked about for the past 11 years or so? What do you think is in the minds of successive UK Governments that are trying to block this? Is it because they fear that, this time, people will vote for the independence of Scotland, or is there another reason?
That is the only rational explanation that I have. Let us cast our minds back to the 2011 Scottish Parliament election and the way in which the then UK Prime Minister was able to agree a process with the Scottish Government. That was done on the basis that a majority had been elected to the Scottish Parliament on a manifesto commitment, but support for independence was considered to be in the 20 per cents. I think that the calculation for the then UK Prime Minister was that this was a concession that would lead to a no vote and would then stop the debate and end the question.
The difference now is that not only do the majority of those in this Parliament support independence but a majority in this country support it, too. I see some shaking of heads, but the average of all the independent polling that one is able to point to shows that support for a yes vote is ahead of support for no.
Even if that were not the case, that would not negate the point that I am making, which is that the difference is that the starting point for a referendum in 2025, 2026 or 2027 would be support percentages that were not in the 20s but were, de minimis, in the 40s. Recent polls have also shown that, among those who have a view on how they would vote, support is at more than 50 per cent. That is the only rational explanation as to why someone would seek to block both a democratic choice and a mechanism for exercising that choice.
I am sorry to have to say it, but I think that colleagues who support that position should look themselves in the mirror and be honest about the fact that seeking to stop a vote simply because we do not like the potential outcome does not behove us as democrats. When we go into elections, we all know that we might or might not be elected or re-elected, and we are prepared to stand for election knowing that context.
Decisions have been taken about wider constitutional issues—such as devolution—on which we have had a number of referenda. We had a number of referenda on Europe. People’s views change, and I think that I am right in saying that we now have about 1 million people living in Scotland who were not able to vote in the 2014 referendum. We have also had a material change of circumstances since that vote. We were promised that, if we were to vote no, we would remain in the European Union, but we have since been taken out of the European Union, although a majority in Scotland voted to remain. That was a case of misselling.
Not only is there a strong rhetorical case for a referendum but we have the results of election after election after election. There are those who are not supportive of a yes outcome but who agree, as democrats, that the only acceptable mechanism for determining our future in governmental or constitutional terms is the ballot box. However, some are seeking rhetorical routes to put off answering an actually quite simple question.
I have another simple point. How on earth is it sustainable to have a mechanism in one part of the United Kingdom but not in another? That is just not sustainable.
I have a final question. You mentioned the distinction between de jure and de facto referenda. The English legal system has a principle called stare decisis, which essentially means to look at previous decisions as setting precedents. The system is very strongly based on that principle, which, incidentally, is not the same in Scotland. Do you think that that principle, and the fact that we had an agreed referendum back in 2014, adds to what seems to many people, although not to everyone, to be an overwhelming argument for the Scottish people having the right to decide?
We have done that once before—it was agreed in the past. It is now at least 11 years since that happened and none of the reasons for not doing it again stack up. Does that create another mandate for a Scottish Parliament in which the majority of people support independence? If the English principle of stare decisis is being followed, surely that should lead to the same sort of agreement.
I must be absolutely frank with Mr Brown: I am not a lawyer and nor am I a legal academic or an expert in any sense, so I do not feel that I am suitably qualified to answer his question about English law.
I would observe, however, the Supreme Court judgment—which has been well reported—in relation to the ability of us as parliamentarians in the Scottish Parliament to decide to hold a referendum. Everything that I have seen has advised me that it is unlikely that the Supreme Court would make any different decision from that which it made before. That gets us back to the same conundrum and challenge that we have been discussing since the beginning of this session, which is that it is a matter of political will, political decision making and consensus as democrats that the democratic process should be at the heart of determining our political and constitutional future.
We have a precedent. Given that we have a precedent that we know was agreeable to the UK Government and given that we know the result would have been recognised internationally had Scotland voted yes in 2014, I am of the view that we should secure agreement through the ballot box and that that is exactly what should happen again if a majority of parliamentarians who support independence are returned to this Parliament.
Otherwise, there is the next conversation, which is about the future of political culture in Scotland if we have a blocking minority. If the people who lose the election are telling those who are elected and represent the largest group of people who voted in that election that they cannot exercise the choice that they were voted in for, that is pretty serious and it is not sustainable. It cannot go on.
What is the solution? The solution is to do what David Cameron did, which is to make a vow. We know that there is a not just the rhetorical avowal of the right of self-determination that we have already narrated this morning. There is a route by which this can happen. I would wish it to be a standing right of the Scottish Parliament to be able to determine its future whenever a majority of people elected to this place, acting on behalf of the people who have elected them to come here, determine that that is what should happen. There is no substitute for that.
It is a pretty simple question. Are we democrats—yes or no? If we are, do we believe that the public should be able to exercise a right about the constitutional future of the country—yes or no? My answer is yes to both those things. That being the case, what is the mechanism? It is time for those who cast doubt on this to be absolutely clear about de minimis. It has to match that which exists for one of the other constituent nations of the United Kingdom, which is Northern Ireland.
Before the referendum, commitments were given, as you remember, that if Scotland voted no, this Parliament would be constitutionally protected and that it could not be abolished. The Sewel convention made law that Scotland’s place in the EU was guaranteed, which turned out to be lies. However, the Smith commission was established after the independence referendum, and the unionist parties supported Scotland’s right to self-determination. Were they acting in bad faith?
I think that, at the time, because it was thought that there would not be a clamour for another referendum, that was a simple thing to concede because, intellectually, if one is in favour of the right to self-determination and one is a democrat, how could one say anything other than that?
I have not spoken with any members of the Smith commission since, but I have no reason to believe that they acted in bad faith then. However, I think that, having said what they said then and given the situation in which we find ourselves now—a Parliament with a majority elected for there to be such a referendum—there is a significant inconsistency there.
The only explanation that I can alight on is not intellectual. It is a political consideration that the starting position for a referendum campaign is that, de minimis, 50 per cent of those who express an opinion on how they would vote—yes or no—would vote yes. Therefore, it is more of a consideration about the risk of losing a referendum than about the principle of either democratic values or democratic processes.
I cast no aspersions on the members of the Smith commission then, but I am interested in hearing what they would say now. It would be very inconsistent of them, or, indeed, of the political parties that signed up to the commission’s recommendations—including the Scottish Conservatives, Scottish Labour and the Scottish Liberal Democrats—if they now take a position that is diametrically opposed to that which they agreed to in 2014.
10:45
Thankfully, we have a member of the Smith commission here.
I return to the substance of the inquiry, which is fundamentally political. The evidence was very clear that the United Kingdom has quite a liberal and permissive constitutional arrangement—flexibility was mentioned frequently. Is it not the truth of the matter that this is about politics, and that if Angus Robertson, Keith Brown and the other nationalists on this committee and in this Parliament want to have another referendum, they have to persuade the majority of the people of Scotland? Is that not what politics is about—a battle of ideas?
Stephen Kerr is conflating two different things: first, the right to be able to decide, and, secondly, coming to a view on the principal question. Those are quite distinct.
I gently draw his attention to the percentage with which the UK Conservative and Unionist Party was elected under David Cameron and under which it delivered a Brexit referendum. That Government was elected on a percentage that was not more than 50 per cent; the percentage was, by my memory, in the mid-30s. That Government then legislated for the Brexit referendum that delivered the result that it did. I deploy that fact in my answer to Mr Kerr because he supported the Conservative Party when that Government was elected, he supported a Brexit referendum and I think that I am right in saying that he voted in favour of Brexit.
I certainly did.
Therefore, he was able to exercise a democratic right that was delivered by a parliamentary election with the result of a percentage in the mid-30s—not the 50s.
Conflating those two things is not the right way to go about this. The basic point here is about people having the right to self-determination. They vote for a parliament to be able to have the opportunity to say yes and well as no, and that is the best way of doing it. The reason we know that is that we have done it already, so there is precedent.
It is a political issue, and it will be resolved—as these matters are—by people voting. We have an election very shortly, and it is up to Angus Robertson, Keith Brown and the other nationalists on the committee and in the Parliament to make the case for that. I think you will find—and some of you are honest enough in your hearts to know this—that the vast majority of people in Scotland have more pressing considerations and priorities, and that will shape how people vote.
However, this is a question of politics. Constitutional arrangements are very clear. The law is very clear. The issue should be determined—as you have said and as we would say—as a matter of democratic process. That is how it has been done in the past in this country, and that is how it will be done in future.
Frankly, the whole inquiry has been a fractious waste of time, because what we have heard in evidence time and again is what we already knew, which is that the Supreme Court judgment makes it clear that the powers rest with the sovereign Parliament of the United Kingdom. The evidence that we have received from many of the experts is also stacked heavily in the corner of those who say that the country has a very liberal and flexible constitutional arrangement, and the evidence of the past proves that.
I did not discern a question from Mr Kerr.
No. I was taking a leaf out of Keith Brown’s book and making a statement.
However, it was a very good example of the view of those people who are unprepared, as democrats, to answer the question, “What is the mechanism?” We have a mechanism in Northern Ireland. Why should that mechanism not also exist here? We can agree—
Well, the experts—
I can agree with Mr Kerr—that might shock those who are watching these proceedings—that the UK, because it has an unwritten constitution, has flexibility, to use the word that he used, to make different arrangements. However—
It is benign, as well. That is the thing.
The point that I am making is that we have different treatment and different statuses for the different nations of this union, and that is unsustainable. It cannot go on.
Well—
How many elections need to return a majority to this place—there have been significantly more than the Conservative Party had secured when it legislated for a Brexit referendum—for there to be a referendum about Scotland’s constitutional future?
It is worth reading the evidence that the committee received, cabinet secretary—
We still have no answer.
—because the disparities that you describe and the unique circumstances of Northern Ireland were well explored by our legal experts and constitutional experts.
In the interest of time, which presses on, I will leave it there. I think that I have made my view clear and I heard the cabinet secretary’s answer to my question. It is a matter of politics and debate, and we are of course about to have an exciting first part of the new year, which will be all about this.
Mr Halcro Johnston is next.
I certainly agree with my friend and colleague Stephen Kerr. I know that Mr Brown will be shocked by that, but the inquiry has been a bit of a damp squib because we have essentially been told what we already know. There have certainly been some useful clarifying points from some of the experts, particularly on the fact that, as Mr Kerr pointed out, this is a political matter.
Cabinet secretary, before I ask my question, I want to pick you up on some of the things that you have said so far. First, on your points about independence parties, a majority for independence and a mandate, I note that, going into the previous election, both Lorna Slater, who is the co-leader of the Greens, and Nicola Sturgeon, for the SNP, suggested that those who voted for those parties could still be against independence but their vote would not be counted. That rather puts into question the idea that a majority of the public voting for those parties is a pure mandate for independence.
The argument that the better together campaign promised staying in the EU is a false one. It has been repeated, but how it has been perceived by SNP politicians has been proved to be false. What the better together campaign said was quite simple. It said that the only way to stay in the EU was to vote no, because voting yes would mean that we would leave a member state of the EU and, therefore, that we would leave the EU. That was clarified in a letter from the European Commission to a committee of this Parliament.
On the point about our being taken out of the EU against our will, I voted remain, but my will was that the result was honoured. Across the United Kingdom, the vote was to leave, so we left. In the same way, had Scotland voted in 2014 to leave the UK, I would have wanted to see that honoured, despite the fact that, as you will appreciate—I am sure that it will come as no shock to you—I voted to stay in the UK.
Independence is not a priority for the public. I think that it was shown to be the public’s seventh or eighth priority, and it may even be a lower priority than that. There is not a clamour for independence or another independence referendum at the moment.
I am sure that you will want to readdress some of those points, but I will ask my question. At the SNP conference earlier this year, John Swinney highlighted that there was a plan—it has been described as a secret plan—to deliver independence. It was the former First Minister Nicola Sturgeon who suggested that it was a “secret plan”. Can you give us details of that? Can you tell us whether such a plan exists?
Again, I reflect that a member who is not in favour of independence has the opportunity to suggest by which democratic mechanism the people might be able to determine the future of their country, but that suggestion is—again—totally absent.
Well, I am asking you, because you are giving evidence to us.
Convener, I am giving an answer to Mr Halcro Johnston’s observations.
Mr Halcro Johnston said an interesting thing when he talked about Lorna Slater and others saying that a vote for the Scottish Greens—and, by extension, the SNP—was not, of itself, a mandate for independence. I agree—what it is, though, is a mandate for a referendum. Both the Scottish National Party and the Scottish Green Party, which make up the majority in this Parliament, were elected on a manifesto commitment that there should be a referendum. I would never ever pray in aid somebody voting for me in Edinburgh Central to keep the Tories out—because it is a two-horse race there between the SNP and the Tories—and say that a vote of a Labour, Liberal Democrat or Green voter who wanted to keep the Tories out was necessarily a vote for independence per se. However, I am very clear that, when a party says in its manifesto that it is committed to, and that its MSPs will vote for, a referendum taking place, it is a mandate to have that choice.
We do not need to go round the houses again on this, but it would appear that the salient point here is being lost by some. There is a difference between having the right of self-determination—and having an agreed route as democrats to be able to do that—and the pros and cons of independence itself. Nobody on the no side of the constitutional argument has been prepared to address that gap.
Mr Robertson, this is an inquiry into a legal mechanism, and we are taking evidence on this matter. The whole point of these sorts of inquiries—and some might question whether there is, indeed, a point to this inquiry—is to take evidence from experts and yourself. I am not suggesting that you are not an expert, or that you do not have any insight into this—that was not my intention—but the point is that we are trying to get this information.
I go back, then, to the question that I asked: is there a plan? Let us not call it a secret plan—let us call it a plan that the SNP wants to keep secret for the moment—but is there a plan for delivering independence? The First Minister was quite clear at your conference—he said that there was a precedent. When the SNP wins a majority, there will be a referendum. How is that going to be delivered? Is it simply rhetoric, or is there a detailed plan? Is there a legal path to a referendum? Can you give us more details on that? After all, I think that that is the salient point in relation to this inquiry.
Mr Halcro Johnston will not, I am sure, be surprised to learn that I am a democrat and that the Scottish National Party is a democratic party that believes in the democratic process. Therefore, the plan is based on those principles. We are standing for election to this Parliament, and if we are elected, we will pursue an independence referendum.
In any other country, or in any other circumstance, it would not be considered a strange proposition that the party that wins with a manifesto commitment to do something actually does it. In fact, in most normal countries, Opposition parliamentarians would be jumping up and down, talking about delivering manifesto commitments—
So the secret plan is to do what you have already done but have not yet achieved.
I just want to say that we are straying into certain areas that are to do with the election. Can we stick to the substantive report that we have done and the cabinet secretary’s evidence on that?
This is a question to be asked of the Scottish Government. The party in the Scottish Government has said not that it will push for another referendum but that there will be another referendum. There has to be some legality to that in order to deliver it; indeed, as Mr Robertson has quite rightly pointed out, it has to be a legal and acceptable referendum.
From what you are saying, Mr Robertson, you seem to be suggesting that there is no legal plan. The secret plan—or the plan that is being kept secret, I should say—is simply to do what you have done before and hope that circumstances—
I would never presume to describe the democratic process in the way that Mr Halcro Johnston has just done. I would have thought that all of us, as democrats, would be clamouring to uphold both domestic and international democratic standards. In other words, when the people elect a Government to do something, it is empowered to get on and do it. We are in a very strange—
I admire your dancing around the issue, but I think that we should save that for Hogmanay.
I am very disappointed by Mr Halcro Johnston, but we should—
There is no plan, is there?
11:00
It might be helpful for the record to remind Mr Halcro Johnston that we have stood against each other in elections before and that Mr Halcro Johnston was gracious enough to recognise the victory of the SNP in that contest. In the same way, I appeal to him now: having done that in a parliamentary context, he should be doing so in a constitutional context as well.
The point that I am trying to extract from you—[Interruption.] Obviously, it is frustrating Mr Brown, and I apologise for that. Essentially, the First Minister of Scotland has said that there is a secret plan. Sorry—he said that there is a plan. It was described as “secret” by a former First Minster, and we have taken that into account.
It is clear that you are not offering anything different. There is no difference from what has been offered in the past.
There is no other route to Scottish independence than through the ballot box. I am committed to that and I would hope that Mr Halcro Johnston would be committed to that as well.
There is no secret plan?
You are putting words into my mouth, Mr Halcro Johnston.
Can we move on? I think—
Yes or no—is there a secret plan? Is there a plan for independence?
There is a plan to secure Scottish independence and it is through the ballot box.
So, nothing else. Okay.
I am very conscious of time. Two other members are waiting to come in and we have another agenda item, so I ask everybody to be concise in their questions and answers.
I will finish, then. That was all that I wanted to establish. It seems to have amused SNP colleagues around the table. However, I think that those who voted for them or those passionate nationalists who will be watching this committee—I do not understand why they are passionate nationalists but I understand their passion in their country—will be slightly concerned that, having been told by the SNP that there was some sort of great strategy or plan, there is not one. The minister has confirmed that, so I will leave it at that.
I am sorry—words are being put in my mouth by Jamie Halcro Johnston and that is not acceptable. What I have stated—
Well, detail it.
Convener, with your permission—am I in a position to answer the question?
No. Clearly, you are not, otherwise we would have had an answer at some point. [Interruption.]
I am sorry. This is a serious issue on a serious report that we have done a considerable amount of work on. Cabinet secretary, your views have been made clear on the record and I note your concern about being misrepresented, but we have to move on and let other members have a chance to come in.
I turn to Patrick Harvie.
Thank you, convener. I do not know whether anybody has started on the Christmas sherry a bit early or something, but the high spirits seem to be kicking in a wee bit. Let us be realistic. This inquiry is clearly going to elicit very different attitudes and views from those of us who want to see a referendum and those who do not, and from those of us who want to see independence and those who do not. There is no particular reason why we should pretend to be surprised about that dynamic in the committee.
From my point of view—and I suspect from yours, cabinet secretary—the position whereby Scotland has been told that the people of Scotland have the right to make a decision but that they may not exercise that right is a fundamental contradiction. It is as if the electoral authorities were telling people as individual citizens, “Of course you can register to vote, but we’re not going to print any ballot papers or open any polling stations.” People have the right to vote, but they may not exercise that right.
However, the contradictions go deeper than that. We have heard from Mr Kerr that all we have to do is persuade the majority of people in Scotland to vote for something—that is all that we are asking to have the opportunity to do—and he seems to think that that should happen through an election. Mr Halcro Johnston reminded us that an election is determined on a great many other issues and that positions on independence are not the only thing involved. An election is either a mandate for independence or a mandate for a referendum. We need to be clear that the latter is the case—that the mandate for a referendum is an election.
However, a contradiction is creeping into the Scottish Government’s position, which I want to give you an opportunity to clarify. You have talked about a party that wins an election having the right to implement its promises. At the beginning of the evidence session, you used a phrase about the situation where a party wins an election on a manifesto promise. That happened in 2007—your party won the 2007 election, but it did not, as a pro-independence party, have a majority in the Parliament, and there was no mandate for independence in the Parliament. More recently, there has been talk about whether a single-party majority is the necessary precondition for a referendum, simply because that happened to be the case in 2011.
Throughout this meeting, you have repeatedly used the phrase “a majority” in relation to parliamentarians who were elected on a commitment. You have also referred to the current parliamentary majority in favour of a referendum, which is not a single-party majority but a parliamentary majority. Will you be clear and explicit that the Scottish Government’s position is that it is a majority in the Parliament rather than a single-party majority that demonstrates a mandate to hold an independence referendum?
That is certainly the case. A majority of members in the Parliament have voted for there to be a referendum, and that counts for something. It should count for all democrats, and that should not be denied by any democrat. I do not think that votes for the Scottish Green Party, which is a party that has a manifesto commitment to hold a referendum, are worth any less than votes for the Scottish National Party or any other party when it comes to matters that are debated in the Scottish Parliament. That is why I believe that, if the Scottish Parliament votes for something, it should happen.
I agree with Mr Kerr and Mr Halcro Johnston that this question is deeply political. However, it is only political—with a capital P—because the parties that oppose independence have departed from the principled position on self-determination in Scotland that they used to have. Now, because they would rather not have a referendum at all, those parties are dancing around a number of rhetorical approaches to suggest that a referendum be held not now, but at some distant point in the future, with some imagined but not elucidated level of mandate that is different from now. The inference is that 50 per cent of the vote is not enough, and that is from a party that held the Brexit referendum after winning a percentage vote share in the 30s—and which, incidentally, has not won a national election in Scotland since the 1950s. To be lectured on democratic processes by that party is a bit rich.
I agree with the principle in Mr Harvie’s question that, if the majority of parliamentarians in this Parliament wish for there to be a referendum, that is what should happen. My point is simply that, given the politics of the issue, it may be a stronger case to exactly match the precedent and circumstances of 2011. That does not discount my views as a democrat, because this is a question of principles. My principle as a parliamentarian and a believer in parliamentary democracy is that, if a majority of members in the Parliament wish something to be so and were elected with a manifesto to do that, then that is what should happen.
I am grateful for that clarity. I was perhaps expecting a bit more pushback.
We will get into what political parties want out of the election process separately—that is not a matter for this committee. Every political party will want as many seats in the Parliament as it can win. However, I hope that, when the cabinet secretary speaks to another former member of the Smith commission—the First Minister, who I am sure he speaks to regularly—he will reinforce the danger of implying to the people of Scotland and the other political parties that, if a pro-independence majority but not a single-party majority is returned in May, the mandate that is being sought will not have been achieved. We have to avoid the situation where other political parties or the UK Government can claim that that is the case. I hope that the cabinet secretary will encourage the First Minister to be equally explicit that the mandate that is being sought is a pro-independence majority of MSPs in Parliament.
I understand the point that Mr Harvie is making, but it is also a question for other political parties. It is not a question only for the political parties that are in favour of having a referendum, which may or may not be in favour of independence.
Helpfully, the Welsh Government has very recently published a report on the constitutional future of Wales in the United Kingdom, and it says:
“it must be open to any of its parts democratically to choose to withdraw from the Union. If this were not so, a nation could conceivably be bound into the UK against its will, a situation both undemocratic and inconsistent with the idea of a Union based on shared values and interests.”
We may disagree on the substance and how we would vote, but I am simply appealing to colleagues, as democrats, to agree that, through the ballot box in a democratic election to this Parliament, we should be able to determine a vote on the country’s future. It is not that complicated. It is pretty basic in terms of democratic values, and it has the beauty of a precedent. It has happened before, so it can and it will happen again.
Through a majority in Parliament?
Through a vote by parliamentarians.
Thank you.
Good morning. I think that we are seeing the cold, hard fear and desperation of the unionists here today as they desperately try to grasp—[Interruption.] Well, they sound it.
If you look at the inquiry, you see that one man’s flexible constitution is another man’s closed shop. Is it not the case that the UK constitution is the problem? I was going to say that it is like something written on the back of a beer mat, but that would be written, whereas we do not have anything in writing. The whole idea is that it is made up as it goes along. To use football parlance, they do not know what they are doing. They continually make things up as they go along.
Is it not the case that the UK constitution is a dinosaur compared with those of countries such as Canada and Germany, which are full federal states and treat their devolved parliaments with actual respect? Is the key and the problem here not that there is a lack of respect and that there is no UK constitution? It is made up as they go along.
I agree with Mr Adam. He is absolutely right, in general. I would draw the committee’s attention to the fact—I would not be the first person to say this in giving evidence on this question to the committee—that, although it is not enshrined in a constitution, the right of self-determination for a constituent nation in this United Kingdom is written into legislation and international treaties. That is the route by which Northern Ireland is in a position to determine whether it should become part of a united Ireland or not—and it involves not just the mechanism of how that might take place, but that it might take place every seven years.
I have said before that Scotland’s position is not exactly analogous with Northern Ireland’s, but the right of self-determination is an inalienable right. It is not held only in one place and not in another. Either we believe in the right of self-determination and in a family of nations that are all valued, or we do not. We have an inconsistency in that that is the de jure situation only for Northern Ireland and for England, by dint of its size. England has a de facto right of self-determination within the context of the United Kingdom because it constitutes 85 per cent of it. It is just not sustainable for it to remain so.
Should there be a mechanism? Yes. Why? It is because it happens elsewhere in this state and it happens in other comparable multinational states. It is not a difficult thing to do. We know that, because it has happened already—ergo, there is precedent, so we know how it can happen. It is disappointing that colleagues on the other side of the constitutional argument are not prepared to step up and avow the democratic principles that they say they adhere to, when we all should do so.
Democracy is not a secret; it happens in public. It involves a ballot box, people voting and people being elected to this Parliament. I am sorry to say that those who stand in the path of it are denying the democratic process and, by extension, people’s democratic right to exercise the right of self-determination. That is not sustainable.
11:15
You have brought up an important point. There has been much talk about the elections next year. We could have a scenario with nationalist Governments in Belfast, in Scotland and in Wales, yet only one of them would have the opportunity to make a move forward. Surely that is the problem with the UK constitution—it is not flexible; it is a straitjacket.
Mr Adam is again correct. Especially after yesterday’s opinion poll in Wales that confirmed the leading position of Plaid Cymru and the appalling levels of support for the Welsh Labour Party and the Welsh Conservative Party, and given the polls in Northern Ireland, I have absolutely no doubt that the prognosis that Mr Adam draws to our attention regarding the likely outcomes of elections in Scotland, Wales and Northern Ireland will mean that, for the first time, there will be heads of government in three of the four nations of this United Kingdom who believe in fundamental constitutional change.
I would wish there to be a mechanism that was agreed by all. However, if there is not, I think that, as never before, we will have a debate—in England as well, given that potential and likely outcome of the elections next year—on the fact that the status quo is not sustainable, that it rests on an unwritten constitution, that it not being written in stone is not a strength but a weakness, and that it undermines democratic rights in Scotland. That is not sustainable.
I have to draw the meeting to a close. Cabinet secretary, I thank you and your officials for your attendance at committee this morning.
I ask people to clear the room really quickly, because we have another agenda item that I hope that we will get through before we have to leave for the chamber. I wish everyone a very good Christmas and new year.
11:17 Meeting continued in private until 11:24.