:00:13. > :00:17.On Newsnight Scotland tonight. We are back again to that referendum
:00:17. > :00:21.story. Askam Ron and Miliband join forces to preserve the union. We
:00:21. > :00:24.will investigate the argument over who can legally run an independence
:00:24. > :00:28.referendum or whether it will all come down to the court of public
:00:28. > :00:31.opinion. Also tonight, it's been a whirlwind week for Scottish
:00:31. > :00:38.politics. It's still only Wednesday! Who is ahead in the
:00:38. > :00:41.referendum stake Secretary of State far? Good evening. Over the past 24
:00:41. > :00:44.hours we've seen a complex political ballet develop. At
:00:44. > :00:48.Westminster the coalition and the opposition are dancing together.
:00:48. > :00:52.North of the border the SNP seems to have choreographed a situation
:00:52. > :00:55.in which it can stand by and wait for autumn 2014 to roll around. We
:00:55. > :00:59.will debate the question of whether Holyrood-only referendum would be
:00:59. > :01:02.subject to legal challenge. First, David Allison has been looking
:01:02. > :01:12.between what London seems to be offering and what Edinburgh seems
:01:12. > :01:15.to be wanting. The current battleground is on the detail.
:01:15. > :01:20.Forget for one moment the issue of whether or not independence for
:01:20. > :01:25.Scotland is a good idea. The issue at stake right now is the
:01:26. > :01:32.referendum itself. How it happens? When it happens? Who overseas it?
:01:32. > :01:36.The question or the questions it will ask. The SNP's surprised
:01:36. > :01:40.announcement of autumn 2014 as their choice of death date for the
:01:40. > :01:42.referendum as Michael Moore was on his feet in the Commons announcing
:01:42. > :01:48.plans to grant to the Scottish Parliament what the UK government
:01:48. > :01:51.argues are the necessary powers, tested the Respect Agenda to new
:01:51. > :01:54.levels. To the Scottish Liberal Democrat leader who put into
:01:54. > :01:58.question how much respect the SNP government was showing to the
:01:58. > :02:02.Scottish Parliament itself. Given that the Scottish Government is
:02:02. > :02:06.concerned about the Respect Agenda has the Scottish Government made a
:02:06. > :02:10.request to make a statement to this Parliament right here today? Is
:02:10. > :02:14.there any reason why you, Presiding Officer, would not be able to
:02:14. > :02:22.respond postively to such a request it were to be made by Scottish
:02:22. > :02:27.ministers? In response to the point of order, I've had no requests from
:02:27. > :02:31.the government for time to make a statement to Parliament today.
:02:31. > :02:35.UK government insist it is's motivated by desire to ensure a
:02:35. > :02:39.legal and fair process, safe from potential challenge in the courts.
:02:39. > :02:43.The SNP clearly believe it's nothing more than Westminster
:02:43. > :02:47.interference in Scottish politics. By contrast the Conservative has
:02:47. > :02:54.less members of Parliament than there are giant pandas in Edinburgh
:02:54. > :02:58.Zoo. Why is the Prime Minister trying to emulate Margaret Thatcher
:02:58. > :03:03.by dictating to Scotland? Quite the opposite. We want to give to
:03:03. > :03:08.Scotland the power to hold a legal referendum. That is the power that
:03:08. > :03:12.we are giving. Right across this House there is uniform belief that
:03:12. > :03:15.that needs to happen. The UK government wants the Electoral
:03:16. > :03:20.Commission, the body which oversaw the last Holyrood and Westminster
:03:20. > :03:24.elections, to run the independence referendum. Last night the First
:03:24. > :03:29.Minister's official spokesman told reports it wasn't suitable because
:03:29. > :03:33.it had "political appoint tees on it" the body overseeing the
:03:33. > :03:37.referendum had to be independence of process. Today, the Deputy First
:03:37. > :03:41.Minister didn't want to discuss that. I'm not getting into
:03:41. > :03:44.criticisms of any particular body. We will set it out in an orderly
:03:44. > :03:49.process. We will publish the consultation paper before the end
:03:49. > :03:53.of this month. That will set out our thinking on an entire range of
:03:53. > :03:58.matters. Then, if you pardon the expression, there is the question
:03:58. > :04:03.of the "question" or "questions" unionist parties have set
:04:03. > :04:09.themselves against the idea of a second question on full fiscal awe
:04:09. > :04:14.tomorrow mi, Dee vo max, wanting a straight yes or no on independence.
:04:14. > :04:18.The SNP remains open to the option of a second question, so does the
:04:18. > :04:21.Scottish TUC. We need the engagement of civic Scotland and
:04:21. > :04:26.the Scottish public more general. It will be the biggest decision we
:04:26. > :04:31.will take in all our life times in 300 years. It will have
:04:31. > :04:34.considerable consequences for every Scot and for the whole of the
:04:35. > :04:39.United Kingdom. Everybody needs to be engaged in that. People don't
:04:39. > :04:43.have confidence that the process, certainly not up until when we have
:04:43. > :04:48.seen the spats between the two governments, that the process will
:04:48. > :04:53.be conducted fairly. The last main issue on the referendum process is
:04:53. > :04:58.the SNP's aim of extending the vote to 16 and 17-year-olds. Opposition
:04:58. > :05:03.parties claim it's an attempt at gerrymandering by staping into a
:05:03. > :05:07.young romantic view of independence. Would it work? If by goer
:05:07. > :05:10.mannedering, do you mean it's more likely the SNP would win the
:05:10. > :05:15.referendum if 16 and 17-year-olds had the vote, the answer is
:05:15. > :05:18.probably not very likely. It is true, if we look at the nearest
:05:18. > :05:22.evidence we have, attitudes of 18- 24-year-olds, they seem to be
:05:22. > :05:30.somewhat more in favour of independence than the population in
:05:30. > :05:33.general. 42% of 18-24-year-olds are in favour of independence, 32%
:05:33. > :05:37.amongst the general population. Another thing we know about young
:05:37. > :05:45.people is that they are not keen going to the polls in the first
:05:45. > :05:49.place. Will the autumn 2014 be traded for dropping young voters?
:05:49. > :05:53.Will civic society get involved in the process and insert a second
:05:53. > :05:59.question? Who will oversee the referendum? Clearly, plenty to sort
:05:59. > :06:04.out in the coming weeks and months. One of those things to sort out is
:06:04. > :06:13.the legality of the referendum. I'm now joined by two constitutional
:06:13. > :06:15.experts from two of Scotland's most nepbt law schools. Professor Adam
:06:15. > :06:23.Tomkins from Glasgow University, he believes Alex Salmond does not have
:06:23. > :06:25.the legal power to order an independence referendum. And
:06:25. > :06:32.Professor Stephen Tierney from Edinburgh University, who thinks he
:06:32. > :06:36.can do so. Alex Salmond says the Scottish government has the right
:06:36. > :06:41.to hold a referendum in Scotland yfplt do you think he is wrong?
:06:41. > :06:44.Even though the Scottish National Party undoubtedly has a historic
:06:45. > :06:47.and unprecedented mandate to govnern Scotland, they have a
:06:47. > :06:52.mandate to govnern Scotland, subject to and in accordance with
:06:52. > :06:58.the rule of law. The Scottish Parliament is not a sovereign
:06:58. > :07:03.legislator. It can't do anything it wants to do. It can do lawfully
:07:03. > :07:09.only that it has the legal power to do, the len slative competence.
:07:10. > :07:13.This is inshrined in the Scotland Act 1998. That clearly provides
:07:13. > :07:17.that the union between England and Scotland is a matter which is
:07:17. > :07:19.reserved to Westminster. Only the Westminster Parliament can
:07:20. > :07:24.legislate on matters which are reserved. For the Scottish
:07:24. > :07:31.Parliament to legislate on a matter which is reserved to Westminster
:07:31. > :07:35.would be incompetent. It would be unlawful. Alex Salmond was citing
:07:35. > :07:40.you on Newsnight as one legal authority to back him up yfplt is
:07:40. > :07:43.Adam Tomkins wrong, it seems pretty clear, isn't it? There is a
:07:44. > :07:48.plausible case to be made that it's lawful to have an advisory
:07:48. > :07:52.referendum. Adam is absolutely right that the union is a reserve
:07:52. > :07:56.matter under Schedule 5 of the Scotland Act. It's unlawful for the
:07:56. > :08:01.Scottish Parliament to legislate to end the union. But, my contention
:08:01. > :08:03.is that there is a strong argument that the Scottish Parliament can
:08:04. > :08:07.bring forward a Referendum Bill which is carefully crafted which
:08:07. > :08:11.seeks to take the views of the Scottish people and would be the
:08:11. > :08:14.basis upon which they would then go to London and say, we have a
:08:14. > :08:19.mandate, at least a political manned mandate, to negotiate with
:08:19. > :08:24.you, the independence of the country. So, it's certainly, there
:08:24. > :08:29.are various different sections. could they frame a question though
:08:29. > :08:33.on the issue of independence, which didn't, in some way, affect the
:08:33. > :08:39.union of the kingdoms between Scotland and England? It has to?
:08:39. > :08:43.The way they drafted it in the 2010 Bill this they put forward was on
:08:43. > :08:48.the basis they would ask the people, "do you want us to negotiate with
:08:48. > :08:52.London on the basis that the powers of the Scottish Parliament would be
:08:52. > :08:55.extended to the extent that independence would be achieved?"
:08:55. > :08:59.The issue was a recognition that the Scottish Parliament had no
:08:59. > :09:03.unilateral power to end the union itself. What was the view of the
:09:03. > :09:07.Scottish people? Based on that view, cot Scottish Government enter into
:09:07. > :09:14.negotiations with London, but Westminster sovereignty was still
:09:14. > :09:17.referenced in the 2010 white paper. We haven't seen the legal advice,
:09:17. > :09:20.presumably that is is the authority that Alex Salmond's government are
:09:20. > :09:24.relying on? I have no idea what legal authority Mr Salmond is
:09:24. > :09:29.relying on. I have no idea if he is relying on any legal authority at
:09:29. > :09:34.all. He won't tell us. Stephen Tierney is one of them. There is
:09:34. > :09:38.good reason why he won't tell us. I want to nail this myth about there
:09:38. > :09:41.being some kind of legally recognisable distinction between an
:09:41. > :09:46.advisory referendum and a wind binding referendum. There has been
:09:46. > :09:49.a lot of guff talked, frankly, about advisory referendums. As far
:09:49. > :09:54.as the Scotland Act is concerned, there is no difference between an
:09:54. > :10:00.advisory and a binding referendum. The test of legislative competence
:10:00. > :10:03.in the Scotland Act is whether a matter relates to a reserved matter.
:10:03. > :10:08.This is to be determined by a reference to the purpose of the
:10:08. > :10:13.matter, having regard, among other things, to its affect. Those are
:10:13. > :10:18.the key words. Relate, purpose and affect. No difference between
:10:18. > :10:21.advisory and binding referendums. As the election manifesto, for the
:10:21. > :10:26.2011 Scottish Parliamentary elections made clear, the SNP's
:10:26. > :10:31.election manifesto, their manifesto clearly and unambiguously, rightly
:10:31. > :10:34.stated, that the effect, the purpose, of having a positive vote
:10:34. > :10:37.in an independence referendum would be that Scotland would become an
:10:37. > :10:42.independent nation. Nothing to do with negotiations. There is no
:10:42. > :10:46.doubt in your mind, what so ever, any Act passed the Scottish
:10:46. > :10:50.Government in this regard would be clearly unlawful? The question of
:10:50. > :10:57.competence does depend, at some level, on the question to be asked.
:10:57. > :11:04.A referendum is not an opinion poll. A referendum is an authoritative,
:11:04. > :11:11.decision making device where by the people are asked a direct, straight,
:11:11. > :11:15.clear pre yes or no question over the heads of our representatives in
:11:15. > :11:19.parliament's. It's not an opinion poll. There is nothing to say Mr
:11:19. > :11:24.Salmond could not put out a poll in the field. A referendum is not an
:11:24. > :11:28.opinion poll. It's a formal decision making device. There is no
:11:29. > :11:35.legislative competence within the Holyrood Parliament for there to be
:11:35. > :11:38.a referendum on Scottish independence because it's clearly a
:11:38. > :11:43.reserved matter by virtue of the Scotland Act. What is your
:11:44. > :11:47.interpretation, if it does end up in the courts, probably the UK
:11:47. > :11:51.Supreme Court, how do you believe Lord Hope and his colleagues would
:11:51. > :11:55.interpret what Adam Tomkins has said, this view particularly about
:11:55. > :12:01.you interpret this looking at the purpose and the effect of any such
:12:01. > :12:05.referendum? That is an important point. Adam did mention that the
:12:06. > :12:10.referendum's legality with depend on the question. The refrplgs to
:12:10. > :12:14.the affect, that section 293, if it's an advisory one, we will
:12:14. > :12:18.negotiate with London and hopefully independence will be granted. Were
:12:18. > :12:21.negotiations to be refused by London the referendum would have no
:12:21. > :12:26.effect. There is an argument it would not relate to a reserve
:12:26. > :12:31.matter because the referendum would have no effect on that basis.
:12:31. > :12:37.clarify that. If there was a yes vote which said negotiate with
:12:37. > :12:41.Westminster, then Westminster, or... What are you saying, if the voters
:12:41. > :12:47.rejected what would happen or if Westminster rejected it... What
:12:47. > :12:51.impact were you saying? The 2010 white paper made clear that the
:12:51. > :12:54.negotiations... A yes vote would be treated as a mandate to open
:12:54. > :12:57.negotiations. Of course, the UK government could refuse to
:12:57. > :13:01.negotiate. On that basis, there is no question that the referendum
:13:01. > :13:05.would bring about an end to the union. How the Supreme Court would
:13:05. > :13:12.react to this is very unclear. We don't know. The only precedent we
:13:12. > :13:18.have to work with is the Supreme Court of Canada in 1998, in that
:13:18. > :13:24.case the Canadian government went to the Supreme Court said and qua
:13:24. > :13:28.Beck want to succeed, do they have a constitutional right? They
:13:28. > :13:32.expected a one word answer. Instead they got a decision from the
:13:32. > :13:40.Supreme Court that said, if there is a yes vote, by referendum,
:13:40. > :13:46.organised in Quabec by the National Assembly, which had the power to,
:13:46. > :13:51.do the Canadian government would have a duty to negotiate. That is a
:13:51. > :13:55.different jurisdiction, but we are talking about major constitutional
:13:55. > :13:59.issues involving identities, self- determination and the Canadian
:13:59. > :14:03.Supreme Court seemed to stand back and said, we can't get tide down in
:14:03. > :14:13.the old detailed constitutional rules we used to work with when the
:14:13. > :14:14.
:14:14. > :14:18.issue of self-determination is at How confident argue that the
:14:18. > :14:23.Scottish Parliament could have an act that would enable a referendum?
:14:23. > :14:25.Are unsure they could bring a bill for what, but I am sure that if
:14:25. > :14:30.there is no consensus between the two governments there will be a
:14:30. > :14:36.legal challenge. The Supreme Court may take the line that Adam is
:14:36. > :14:43.taking. It is precisely because of these kinds of legal uncertainties,
:14:43. > :14:46.which are very difficult, there is a fog of uncertainty, it is
:14:46. > :14:51.extraordinarily generous to the Scottish Government, to clear all
:14:51. > :14:55.of this up and to have clear and unambiguous legislative authority
:14:55. > :14:59.to have an independence referendum, which David Cameron does not want
:14:59. > :15:03.to have, but to have legal authorities so that all of these
:15:03. > :15:09.issues can be resolved by the people of Scotland.
:15:09. > :15:13.To enter men, thank you very much. -- gentleman, thank you very much.
:15:13. > :15:17.The events of the past few days have amounted high-stakes poker or
:15:17. > :15:23.a game of political chess. He is a quick look back at how the main
:15:23. > :15:29.players in the referendum debate have played that hands.
:15:29. > :15:33.-- played their hands. We should not let this go on year after year,
:15:33. > :15:38.it is damaging for everyone concerned. Let us clear up the
:15:38. > :15:45.legal situation and then have a debate. My for my view is so now,
:15:45. > :15:49.rather than later. It is for the Scottish Government to determine
:15:49. > :15:53.the way forward. We won an overwhelming mandate for that in
:15:53. > :16:00.the election, and I think people do not want to see a Westminster
:16:00. > :16:03.Government trying to interfere in one that is for the Scottish people.
:16:03. > :16:08.To legislate for a referendum on independence, the Scottish
:16:08. > :16:11.Parliament must have the legal power to do so. It is the
:16:11. > :16:17.Government's clear view that the Scottish Parliament does not have
:16:17. > :16:22.that legal power. The date for the referendum has to be the autumn of
:16:22. > :16:30.2014, because this is the biggest decision but Scotland has made for
:16:30. > :16:35.300 years. We must make the case for the Union, not simply against
:16:35. > :16:42.separatism, but the positive case about the shed benefits to us all
:16:42. > :16:46.of Scotland's part in the United Kingdom. Why on earth should the
:16:46. > :16:53.Prime Minister be wanting to trample all over Scotland with the
:16:53. > :16:58.his size ten boots? I sometimes feel when I listen to them, it is
:16:58. > :17:02.not a referendum debate, it is a "neverendum". Let us have the
:17:02. > :17:06.debate and keep our country together. A am joined by the
:17:06. > :17:13.Westminster editor of the Daily Record, Torcuil Crichton.
:17:13. > :17:16.How have the events of the last few days played out in London? Finally
:17:16. > :17:21.Westminster has woken up to what will be the biggest constitutional
:17:21. > :17:27.question of our age, and one of the biggest issues of David Cameron's
:17:28. > :17:31.Premiership. You and I and every other Scottish journalist has gone
:17:31. > :17:36.through this independence, evolution, debate for the last
:17:37. > :17:40.decade, since the Scottish Parliament was set up, and now I
:17:40. > :17:45.have to serve a double sentence Barber's Minster goes through the
:17:45. > :17:52.same process again leading up to a referendum or leading up to the
:17:52. > :17:56.club why we have just heard. I reckon this will end up in 18
:17:56. > :18:03.months or more of legal exchange on this battlefield, not Battle of
:18:03. > :18:09.Bannockburn, the Supreme Court in London. Who is winning? Today,
:18:09. > :18:15.Arran -- Cameron had the upper hand, Salmond punched back by giving away
:18:15. > :18:20.the date or the season. But the kingpin behind this has not shown
:18:20. > :18:28.his hand yet, and that is George Osborne, the Chancellor, the man in
:18:28. > :18:32.charge of the ministerial group on Scotland. George Osborne
:18:32. > :18:37.masterminded this, he is the most Machiavellian politician of the age,
:18:37. > :18:42.the man who made David Cameron the leader of the Tory party, and the
:18:42. > :18:51.man who coined the Lib Dems into a condition. He has now looked around
:18:51. > :18:57.and said, what is my next game? He has chosen salmon, and he is taking
:18:57. > :19:01.Sam and on. You say you believe that Alex Salmond blinked, but I am
:19:01. > :19:07.sure his interpretation would be that he has the UK Government on
:19:07. > :19:12.the run. He does, because he holds a lot more cards than the UK
:19:12. > :19:18.Government. It holds one nuclear card, we will hold the referendum
:19:18. > :19:21.instead of you. Salmond has two dates in mind, one is 2015,
:19:21. > :19:28.probably the next UK election, he wants to see a lot of Scottish
:19:28. > :19:34.Labour elections -- Labour MPs. And he wants an unfettered Tory
:19:34. > :19:39.Government in London. He will then turn round and say, my referendum
:19:39. > :19:44.is bogged down in that Union Jack Court in London, the Supreme Court,
:19:44. > :19:49.it is too late for a referendum now, I will have to go to the 2016
:19:49. > :19:53.Scottish election with one question, who runs Scotland, Alex Salmond or
:19:53. > :19:57.the Supreme Court? Alex Salmond hopes for a third term out of it.
:19:57. > :20:03.We do the last few days tell us about but the dynamics in the
:20:03. > :20:07.collision? We had David Cameron coming out on Sunday, and then
:20:07. > :20:12.Michael Moore with a more measured response when he addressed the
:20:12. > :20:17.Commons in the media. We have said that after the briefing there will
:20:17. > :20:20.be an 18 month time limit on this referendum of far of handing the
:20:20. > :20:30.powers to our Scottish Parliament. They would have to have one
:20:30. > :20:30.
:20:30. > :20:36.question, and that the draft order, if you have seen it, leaves a blank
:20:36. > :20:43.bit. The tourists' camp at 18 months, six months, 12 months, I am
:20:43. > :20:48.told that they are comfortable 2014. Now that the date is set, the
:20:48. > :20:52.camping can begin. We may be went - - waiting another 1000 days for the
:20:52. > :20:56.Supreme Court to work out whether this referendum is legal or not. 28
:20:56. > :21:01.days after that Bill is passed in the Scottish Parliament, the
:21:01. > :21:11.Attorney-General will call the Supreme Court., let us take a quick