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In 1979, I tried to be a proxy for my mother’s vote in the referendum that year, but, at 17, I was too young to do that. I am just thinking about all the different conditions that have been applied. Can any of the witnesses say what is so different about Scotland?

In 1979, we had the 40 per cent rule, which was unheard of, whereby the votes of the dead counted for the status quo. We have talked about confirmatory referenda and, although I see some merit in the final shape of an independent Scotland being subject to a vote, the idea of having to say again that we want the same thing is not something that I could see happening anywhere but Scotland.

The idea has been raised that different parts of Scotland—I know that this has not been advanced by the witnesses, but it certainly was by Jamie Halcro Johnston—could vote differently at the same time. It is funny, because I did not recall such voices during the Brexit referendum, when every part of Scotland voted to stay in the EU and we were utterly disregarded. That idea did not count at that point.

Also, if this is merely a distraction, and the SNP is not serious about it, call its bluff—go for it; have the referendum. That is the best way you can kill it off.

Why is it always that we come up with these strange mechanisms or different conditions? Compare that to the Brexit referendum, when there was no white paper, no background, no conditions attached—and, on the point about a 50.1 per cent result, in the case of the Brexit referendum, the result was 52 per cent to 48 per cent but nobody is questioning its legitimacy; it was a simple majority. Why is it that such conditions seem to be talked about or brought into the equation only when we talk about Scotland? Is it simply because the Brexit referendum was one that, for his own reasons, the Prime Minister of the UK wanted and the independence referendum is a referendum that the UK does not want, or is there something specific about Scotland, which we cannot quite discern, that makes it subject to all these conditions?

This is my last question. We have an off-the-shelf agreed solution as to how this should be conducted, but it will not be agreed to by the UK Government. You made the point earlier that it is at times of relative calm that you can perhaps have more chance of an agreement. Also, I think that you very helpfully mentioned the extent to which, if you want to see a referendum, broadening it out and having a more discursive approach to it could be beneficial. Patrick Harvie and I are involved in the early stages of setting up a convention to that effect.

However, if the UK Government continues to say no up until the election, and if the election returns the majority that I certainly would hope for, there is very little chance at of getting any agreement at that stage. I can see the UK Government coming straight back and saying, “Let’s discuss the ground rules again.” The chance will have gone. It will be very similar to 2014, when it promised all sorts of things, such as enshrining the Sewel convention in law, putting the Scottish Parliament on a firm footing and making it a stronger Parliament. The exact reverse happened afterwards. Would you agree that there is very little prospect after the election of getting the kind of calm that you say is necessary to ensure agreement and it would be straight into a binary approach again?

I am sorry for referring to Professor Blick as Professor Rodger earlier—that was a name that came up on the screen. I am interested in your view on those two questions.

If I understood you correctly, the first part of your answer was about a high bar—I think that you were talking about transferring, possibly to the Scottish Parliament, the power to decide or having an agreed mechanism. Given the possibility of increasingly emphatic wins for pro-independence or pro-referendum parties in Scotland, given what may well happen in Wales shortly and given what is due to happen at some point in Northern Ireland, do you see the UK Government continuing to present such a bar in the future? Will it continue to refuse to countenance granting that high bar? If you do not see that, what would change the position?

Following on from the points that have been made about the so-called reset, I will make a number of points on which it would be useful to hear your comments. My points add up to my belief that the reset has not really worked or happened. In fact, from speaking to a number of ministers, I am aware that it seems to have gone backwards in recent weeks after a more promising start.

You will be aware that in around 2005-06, the then First Minister, Jack McConnell, commissioned a report that showed that there was appalling ignorance and something of a contempt for the devolved Administrations at the centre. When we were down in London, the committee considered a report from the Bennett school of public policy, which talked about centralist chauvinism. I would link that to Professor Wincott’s point about the perceived powerful position of Westminster and how that governs things.

From my point of view, the representations of both the Welsh and Scottish Governments made no impact on the repeal of the United Kingdom Internal Market Act 2020; indeed, they were not even considered. We have not yet seen any outcome from the review of the Sewel convention. The UK Government’s position at the time of the independence referendum in Scotland was that the convention would be strengthened and put into law. However, its position now is that, as it said before the Supreme Court, the convention is merely a self-denying ordinance.

The most telling instance, though, is the pride in place initiative, which involves spending in devolved areas at the discretion of the UK Government without any real basis for that spending. For example, the constituency that I represent gets no money from the initiative, despite being one of the most deprived in the country. A central role in disbursing those funds is given to MPs, and the moneys will be disbursed during an election process in Scotland. I also learned yesterday that the Welsh Government was told about the initiative, whereas the Scottish Government was not.

I wonder whether there is a mix in there, with the Westminster system not adapting to devolution. I am conscious that we have been here now for 26 years, yet on Monday we heard from somebody who said that we are still in the early foothills of people learning about devolution, and that it took Canada 160 years. Surely it cannot take that long to learn that there are some devolved Administrations that people might have to take account of.

I know that I made a series of points there, but I would be interested in the witnesses’ views on them. I will go to Professor Wincott first.

Thank you.

Just before Dr Minto comes in, I want to raise another point about something that we heard in London during the committee’s visit. It relates to the ad hoc nature of some of the changes, with the council of nations and regions being overlaid on top of the top-tier meetings and the British Irish Council.

In relation to the JMC on Europe, there is now no consultation whatsoever with the devolved Administrations—for example, there was none in relation to the EU trade deal and Scotland’s fisheries. It just seems to be going a bit backward.

Sorry, Dr Minto—please come in.

On that point—

I am grateful for that clarity, but it raises in my mind the question whether it would be possible to have in Scotland a legal referendum on having no confidence in the Supreme Court, but that is just my own view.

I could be wrong on this, so please feel free to correct me, but a kind of narrative seems to have built up with regard to the two referenda that were held on devolution. In the second referendum, a lower bar was set rather than a higher bar, and instead of its coming about because of a change of mind, it came about because of an increase in support. In the 1979 referendum, there was the perverse and very unusual—indeed, unprecedented—rule that allowed the votes of the dead to count towards a no vote, and there was also the 40 per cent rule. However, support still grew over time.

I think that Professor McHarg made this point—I am paraphrasing here, because I do not want to put words in her mouth—but that kind of obstruction to a democratically expressed view will tend to lead to an increase in support for the view. I think that I have got that right. People in Scotland voted in 1979 on having an assembly—I am just old enough to remember it—and it was refused. Did that refusal in itself lead to an increase in support over a period of time?

I should also point out that the settled will was never a precondition of the 1997 referendum. People might say that, but it was never a precondition. When it comes to the idea that we can set that kind of precondition and that there must be some settled will that meets a certain bar—and I know that you have all argued against that, because the term is so vague—I point out again that that was never part of the 1997 referendum. I am happy to hear any comments on that point, but we should be clear about the history of the two devolved assembly referendums.

I have read your submissions and we, as a committee, have also had a chat with some advisers, all of whom are as esteemed and as knowledgeable as the members of this panel.

The submission that stands out to me is that of Adam Tomkins. I do not want to overstate it—and Adam Tomkins can correct me if I am doing so—but that is because of the extent to which it talks about the people as being central to this, which is often forgotten when we talk about legal and constitutional architecture and so on. However, as Professor Tomkins says at various points, the simple fact is that

“the decision-maker is the people of Scotland”.

That is very true, whether it is about trying to force the issue of having a mechanism to achieve independence or stay in the union, or whether it is about actually taking that decision. I think that it is also true of the European Union, where I have worked for a number of years in the European Committee of the Regions, and now the Council of Europe, which is often said to be bound by its constitutional and legal architecture. Very often, it will follow the people; the people are supreme in relation to that.

However, apart from in Adam’s submission, that point seems to be relatively absent. Aileen and Stephen, is that because of the way in which you were asked to contribute to this session, which is about finding a legal mechanism? Adam has made his position clear, but does either of you want to say something about the extent to which the people are pretty important in all this?