11/01/2012 Newsnight Scotland

On Newsnight Scotland tonight. We are back again to that referendum

story. Askam Ron and Miliband join forces to preserve the union. We

will investigate the argument over who can legally run an independence

referendum or whether it will all come down to the court of public

opinion. Also tonight, it's been a whirlwind week for Scottish

politics. It's still only Wednesday! Who is ahead in the

referendum stake Secretary of State far? Good evening. Over the past 24

hours we've seen a complex political ballet develop. At

Westminster the coalition and the opposition are dancing together.

North of the border the SNP seems to have choreographed a situation

in which it can stand by and wait for autumn 2014 to roll around. We

will debate the question of whether Holyrood-only referendum would be

subject to legal challenge. First, David Allison has been looking

between what London seems to be offering and what Edinburgh seems

to be wanting. The current battleground is on the detail.

Forget for one moment the issue of whether or not independence for

Scotland is a good idea. The issue at stake right now is the

referendum itself. How it happens? When it happens? Who overseas it?

The question or the questions it will ask. The SNP's surprised

announcement of autumn 2014 as their choice of death date for the

referendum as Michael Moore was on his feet in the Commons announcing

plans to grant to the Scottish Parliament what the UK government

argues are the necessary powers, tested the Respect Agenda to new

levels. To the Scottish Liberal Democrat leader who put into

question how much respect the SNP government was showing to the

Scottish Parliament itself. Given that the Scottish Government is

concerned about the Respect Agenda has the Scottish Government made a

request to make a statement to this Parliament right here today? Is

there any reason why you, Presiding Officer, would not be able to

respond postively to such a request it were to be made by Scottish

ministers? In response to the point of order, I've had no requests from

the government for time to make a statement to Parliament today.

UK government insist it is's motivated by desire to ensure a

legal and fair process, safe from potential challenge in the courts.

The SNP clearly believe it's nothing more than Westminster

interference in Scottish politics. By contrast the Conservative has

less members of Parliament than there are giant pandas in Edinburgh

Zoo. Why is the Prime Minister trying to emulate Margaret Thatcher

by dictating to Scotland? Quite the opposite. We want to give to

Scotland the power to hold a legal referendum. That is the power that

we are giving. Right across this House there is uniform belief that

that needs to happen. The UK government wants the Electoral

Commission, the body which oversaw the last Holyrood and Westminster

elections, to run the independence referendum. Last night the First

Minister's official spokesman told reports it wasn't suitable because

it had "political appoint tees on it" the body overseeing the

referendum had to be independence of process. Today, the Deputy First

Minister didn't want to discuss that. I'm not getting into

criticisms of any particular body. We will set it out in an orderly

process. We will publish the consultation paper before the end

of this month. That will set out our thinking on an entire range of

matters. Then, if you pardon the expression, there is the question

of the "question" or "questions" unionist parties have set

themselves against the idea of a second question on full fiscal awe

tomorrow mi, Dee vo max, wanting a straight yes or no on independence.

The SNP remains open to the option of a second question, so does the

Scottish TUC. We need the engagement of civic Scotland and

the Scottish public more general. It will be the biggest decision we

will take in all our life times in 300 years. It will have

considerable consequences for every Scot and for the whole of the

United Kingdom. Everybody needs to be engaged in that. People don't

have confidence that the process, certainly not up until when we have

seen the spats between the two governments, that the process will

be conducted fairly. The last main issue on the referendum process is

the SNP's aim of extending the vote to 16 and 17-year-olds. Opposition

parties claim it's an attempt at gerrymandering by staping into a

young romantic view of independence. Would it work? If by goer

mannedering, do you mean it's more likely the SNP would win the

referendum if 16 and 17-year-olds had the vote, the answer is

probably not very likely. It is true, if we look at the nearest

evidence we have, attitudes of 18- 24-year-olds, they seem to be

somewhat more in favour of independence than the population in

general. 42% of 18-24-year-olds are in favour of independence, 32%

amongst the general population. Another thing we know about young

people is that they are not keen going to the polls in the first

place. Will the autumn 2014 be traded for dropping young voters?

Will civic society get involved in the process and insert a second

question? Who will oversee the referendum? Clearly, plenty to sort

out in the coming weeks and months. One of those things to sort out is

the legality of the referendum. I'm now joined by two constitutional

experts from two of Scotland's most nepbt law schools. Professor Adam

Tomkins from Glasgow University, he believes Alex Salmond does not have

the legal power to order an independence referendum. And

Professor Stephen Tierney from Edinburgh University, who thinks he

can do so. Alex Salmond says the Scottish government has the right

to hold a referendum in Scotland yfplt do you think he is wrong?

Even though the Scottish National Party undoubtedly has a historic

and unprecedented mandate to govnern Scotland, they have a

mandate to govnern Scotland, subject to and in accordance with

the rule of law. The Scottish Parliament is not a sovereign

legislator. It can't do anything it wants to do. It can do lawfully

only that it has the legal power to do, the len slative competence.

This is inshrined in the Scotland Act 1998. That clearly provides

that the union between England and Scotland is a matter which is

reserved to Westminster. Only the Westminster Parliament can

legislate on matters which are reserved. For the Scottish

Parliament to legislate on a matter which is reserved to Westminster

would be incompetent. It would be unlawful. Alex Salmond was citing

you on Newsnight as one legal authority to back him up yfplt is

Adam Tomkins wrong, it seems pretty clear, isn't it? There is a

plausible case to be made that it's lawful to have an advisory

referendum. Adam is absolutely right that the union is a reserve

matter under Schedule 5 of the Scotland Act. It's unlawful for the

Scottish Parliament to legislate to end the union. But, my contention

is that there is a strong argument that the Scottish Parliament can

bring forward a Referendum Bill which is carefully crafted which

seeks to take the views of the Scottish people and would be the

basis upon which they would then go to London and say, we have a

mandate, at least a political manned mandate, to negotiate with

you, the independence of the country. So, it's certainly, there

are various different sections. could they frame a question though

on the issue of independence, which didn't, in some way, affect the

union of the kingdoms between Scotland and England? It has to?

The way they drafted it in the 2010 Bill this they put forward was on

the basis they would ask the people, "do you want us to negotiate with

London on the basis that the powers of the Scottish Parliament would be

extended to the extent that independence would be achieved?"

The issue was a recognition that the Scottish Parliament had no

unilateral power to end the union itself. What was the view of the

Scottish people? Based on that view, cot Scottish Government enter into

negotiations with London, but Westminster sovereignty was still

referenced in the 2010 white paper. We haven't seen the legal advice,

presumably that is is the authority that Alex Salmond's government are

relying on? I have no idea what legal authority Mr Salmond is

relying on. I have no idea if he is relying on any legal authority at

all. He won't tell us. Stephen Tierney is one of them. There is

good reason why he won't tell us. I want to nail this myth about there

being some kind of legally recognisable distinction between an

advisory referendum and a wind binding referendum. There has been

a lot of guff talked, frankly, about advisory referendums. As far

as the Scotland Act is concerned, there is no difference between an

advisory and a binding referendum. The test of legislative competence

in the Scotland Act is whether a matter relates to a reserved matter.

This is to be determined by a reference to the purpose of the

matter, having regard, among other things, to its affect. Those are

the key words. Relate, purpose and affect. No difference between

advisory and binding referendums. As the election manifesto, for the

2011 Scottish Parliamentary elections made clear, the SNP's

election manifesto, their manifesto clearly and unambiguously, rightly

stated, that the effect, the purpose, of having a positive vote

in an independence referendum would be that Scotland would become an

independent nation. Nothing to do with negotiations. There is no

doubt in your mind, what so ever, any Act passed the Scottish

Government in this regard would be clearly unlawful? The question of

competence does depend, at some level, on the question to be asked.

A referendum is not an opinion poll. A referendum is an authoritative,

decision making device where by the people are asked a direct, straight,

clear pre yes or no question over the heads of our representatives in

parliament's. It's not an opinion poll. There is nothing to say Mr

Salmond could not put out a poll in the field. A referendum is not an

opinion poll. It's a formal decision making device. There is no

legislative competence within the Holyrood Parliament for there to be

a referendum on Scottish independence because it's clearly a

reserved matter by virtue of the Scotland Act. What is your

interpretation, if it does end up in the courts, probably the UK

Supreme Court, how do you believe Lord Hope and his colleagues would

interpret what Adam Tomkins has said, this view particularly about

you interpret this looking at the purpose and the effect of any such

referendum? That is an important point. Adam did mention that the

referendum's legality with depend on the question. The refrplgs to

the affect, that section 293, if it's an advisory one, we will

negotiate with London and hopefully independence will be granted. Were

negotiations to be refused by London the referendum would have no

effect. There is an argument it would not relate to a reserve

matter because the referendum would have no effect on that basis.

clarify that. If there was a yes vote which said negotiate with

Westminster, then Westminster, or... What are you saying, if the voters

rejected what would happen or if Westminster rejected it... What

impact were you saying? The 2010 white paper made clear that the

negotiations... A yes vote would be treated as a mandate to open

negotiations. Of course, the UK government could refuse to

negotiate. On that basis, there is no question that the referendum

would bring about an end to the union. How the Supreme Court would

react to this is very unclear. We don't know. The only precedent we

have to work with is the Supreme Court of Canada in 1998, in that

case the Canadian government went to the Supreme Court said and qua

Beck want to succeed, do they have a constitutional right? They

expected a one word answer. Instead they got a decision from the

Supreme Court that said, if there is a yes vote, by referendum,

organised in Quabec by the National Assembly, which had the power to,

do the Canadian government would have a duty to negotiate. That is a

different jurisdiction, but we are talking about major constitutional

issues involving identities, self- determination and the Canadian

Supreme Court seemed to stand back and said, we can't get tide down in

the old detailed constitutional rules we used to work with when the

issue of self-determination is at How confident argue that the

Scottish Parliament could have an act that would enable a referendum?

Are unsure they could bring a bill for what, but I am sure that if

there is no consensus between the two governments there will be a

legal challenge. The Supreme Court may take the line that Adam is

taking. It is precisely because of these kinds of legal uncertainties,

which are very difficult, there is a fog of uncertainty, it is

extraordinarily generous to the Scottish Government, to clear all

of this up and to have clear and unambiguous legislative authority

to have an independence referendum, which David Cameron does not want

to have, but to have legal authorities so that all of these

issues can be resolved by the people of Scotland.

To enter men, thank you very much. -- gentleman, thank you very much.

The events of the past few days have amounted high-stakes poker or

a game of political chess. He is a quick look back at how the main

players in the referendum debate have played that hands.

-- played their hands. We should not let this go on year after year,

it is damaging for everyone concerned. Let us clear up the

legal situation and then have a debate. My for my view is so now,

rather than later. It is for the Scottish Government to determine

the way forward. We won an overwhelming mandate for that in

the election, and I think people do not want to see a Westminster

Government trying to interfere in one that is for the Scottish people.

To legislate for a referendum on independence, the Scottish

Parliament must have the legal power to do so. It is the

Government's clear view that the Scottish Parliament does not have

that legal power. The date for the referendum has to be the autumn of

2014, because this is the biggest decision but Scotland has made for

300 years. We must make the case for the Union, not simply against

separatism, but the positive case about the shed benefits to us all

of Scotland's part in the United Kingdom. Why on earth should the

Prime Minister be wanting to trample all over Scotland with the

his size ten boots? I sometimes feel when I listen to them, it is

not a referendum debate, it is a "neverendum". Let us have the

debate and keep our country together. A am joined by the

Westminster editor of the Daily Record, Torcuil Crichton.

How have the events of the last few days played out in London? Finally

Westminster has woken up to what will be the biggest constitutional

question of our age, and one of the biggest issues of David Cameron's

Premiership. You and I and every other Scottish journalist has gone

through this independence, evolution, debate for the last

decade, since the Scottish Parliament was set up, and now I

have to serve a double sentence Barber's Minster goes through the

same process again leading up to a referendum or leading up to the

club why we have just heard. I reckon this will end up in 18

months or more of legal exchange on this battlefield, not Battle of

Bannockburn, the Supreme Court in London. Who is winning? Today,

Arran -- Cameron had the upper hand, Salmond punched back by giving away

the date or the season. But the kingpin behind this has not shown

his hand yet, and that is George Osborne, the Chancellor, the man in

charge of the ministerial group on Scotland. George Osborne

masterminded this, he is the most Machiavellian politician of the age,

the man who made David Cameron the leader of the Tory party, and the

man who coined the Lib Dems into a condition. He has now looked around

and said, what is my next game? He has chosen salmon, and he is taking

Sam and on. You say you believe that Alex Salmond blinked, but I am

sure his interpretation would be that he has the UK Government on

the run. He does, because he holds a lot more cards than the UK

Government. It holds one nuclear card, we will hold the referendum

instead of you. Salmond has two dates in mind, one is 2015,

probably the next UK election, he wants to see a lot of Scottish

Labour elections -- Labour MPs. And he wants an unfettered Tory

Government in London. He will then turn round and say, my referendum

is bogged down in that Union Jack Court in London, the Supreme Court,

it is too late for a referendum now, I will have to go to the 2016

Scottish election with one question, who runs Scotland, Alex Salmond or

the Supreme Court? Alex Salmond hopes for a third term out of it.

We do the last few days tell us about but the dynamics in the

collision? We had David Cameron coming out on Sunday, and then

Michael Moore with a more measured response when he addressed the

Commons in the media. We have said that after the briefing there will

be an 18 month time limit on this referendum of far of handing the

powers to our Scottish Parliament. They would have to have one

question, and that the draft order, if you have seen it, leaves a blank

bit. The tourists' camp at 18 months, six months, 12 months, I am

told that they are comfortable 2014. Now that the date is set, the

camping can begin. We may be went - - waiting another 1000 days for the

Supreme Court to work out whether this referendum is legal or not. 28

days after that Bill is passed in the Scottish Parliament, the

Attorney-General will call the Supreme Court., let us take a quick