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Showing posts with label the Law and politics. Show all posts
Showing posts with label the Law and politics. Show all posts

Saturday, 28 January 2012

Popping the question: the space between words - the Referendum question - or questions?

I have had this little 48 second clip up since the 15th of January, but kept it private on YouTube because I still don’t know what to make of it. 


Let’s examine the exchange verbatim - questions put, questions answered. Or are they?

Isabel Fraser: So. Are the politicians letting us down this week? Is party politics taking too much of a role when they should be looking at the wider interests of Scotland, do you think?

Question type and the formulation of questions - meat and drink to a negotiator like me - are all the rage this week, so let’s analyse this one, or rather these ones, since Isabel Fraser poses three questions in her statement, albeit within a single theme -

Are politicians letting us down this week?

Is party politics taking to much of a role?


they should be looking at the wider interests of Scotland?

The first is a closed question demanding a YES/NO answer, as is the second, and the third is technically a statement of fact that assumes a YES to the first two and offer an value judgment of what politicians should be doing, or invites a NO to the first two which implies a YES to the third proposition, which is in fact also a question.

Before I analyse further, here’s how I would have answered Isabel’s deceptively simple, but in fact complex bundle of questions. Bear with me in a lengthy digression - I have never been know to use a short word when a long one will do, or choose brevity over a prolix mode, except under duress on Twitter …

PC:No, they are not letting us down, because it is impossible to separate party politics from the wider interests of Scotland. We live in a democracy, the interests of the people in that democracy are served by elected politicians who operate mainly within a frame of party, and it is the primary role of politicians in that democracy, whether in government or in opposition, to attempt to serve the interests of all of the people within the context of their party policies and beliefs.

There is no objective body that stands apart from party politics that has a greater right to speak or decide. Churches, civic leaders, business and commercial leaders are not apolitical - they act within a frame of belief and self-interest, and are also in the main, politically aligned as well.

Bodies such as Civic Scotland are political groupings - they have a viewpoint, they are comprised of people who in the main have party political views and who voted according to them in democratic elections. Their voice can therefore only be advisory - it cannot be democratic, and they have no right to compel political decision.

There is of course, the Law, which in theory stands outside of, and above party politics. A brief look at the composition of either the Westminster Parliament or Holyrood immediately demonstrates that, while the concept of the rule of law and the processes of the law should be free of influence, the lawyers themselves are not - they are in fact highly politicised.

The Advocate General of Scotland, Lord Wallace demonstrated this in the BBC debate this week. He is a former politician, now an unelected Lord: he is a political appointee representing the Crown: he therefore technically represented the Queen, but in reality the Tory/LibDem Coalition, and was in practice in the debate aligned with the Labour/Tory/LibDem coalition formed to fight against the independence of Scotland and to secure a NO vote in the referendum.”

(If you doubt that the law is politicised, consider this - Tommy Sheridan is being released from prison this week after serving a year of his sentence. Sheridan, one of the most charismatic campaigning politicians Scotland has ever seen, will not be allowed to speak in public after his release. He is, of course, a committed advocate of Scotland’s independence, and an opponent of the nuclear deterrent. Many, including me, saw his prosecution for perjury as a political prosecution, and many will see the ban on him engaging in political activity at this crucial point in his country’s history as a gagging stratagem. A legal justification for the gag has of course been presented and can be defended under the law.)

Isabel may be forgiven for breathing a sigh of relief that she didn’t have me on the programme instead of the admirable Joyce McMillan. But here we have the essence of the problem - television, limited by format and by timescale, can rarely do justice to such questions and concepts, even assuming their panellists understand them in the first place. Brevity, concise exchanges and ten minute exchange slots are what television is about, except in rare instances.

Of course, in reality, I would have given a briefer answer -

No they’re not letting us down. This is about party politics and the electorate want the politicians to fight the corners they elected them to fight. Other individuals and bodies can advise, but that’s all - if they want to do more than advise, let them stand for election and run for office.”


Joyce McMillan: Well, I think - just to put it bluntly - I think no one who really cares about the future of Scotland could want to keep the devolution max or the devolution plus option off the ballot paper.

Oh, really, Joyce. So anybody who doesn’t agree with you doesn’t care about Scotland? There are many who do care deeply about Scotland who seem to want to do just that. I’m not one of them - I want a single question because I think the devolution max question is a trap for nationalists, but as a democrat, I agree with you, with great reluctance, and I have offered a ballot paper which covers all reasonable bases, an analysis to support it, to which no one has paid a blind bit of notice. Anyway

Joyce McMillan: It’s quite clear that that’s the kind of option that most Scottish voters would feel, or the largest minority of Scottish voters, would feel most comfortable with - at the moment.

Isabel Fraser: Should it be a direct independence versus devo max question?

Joyce McMillan: No - absolutely not.

Now that answer is crystal clear - it should not be a direct independence versus devo max question. Or is it?

Joyce McMillan: It should be a question which allows people who want to opt for independence to opt for independence - and then, for those who have not opted for independence to say - well, what short of independence, would you like to open negotiations for devo max.

Joyce McMillan has just confirmed a YES to Isabel Fraser’s question, in spite saying absolutely not to it initially. Since a YES answer to any referendum question is a mandate to the Scottish Government to open negotiations for that choice, what Joyce has just said is that there should be two question, and if you say NO to independence, you also - or is it then - get a devo max choice, in which case it is “a direct independence versus devo max question”.

The confusion arise because not enough consideration is being given to the sequence and structure of the ballot paper and whether there should be conditionality between questions. I have addressed this at length, and doubtless tediously for those who don’t want to come to grips with the complexity that lies beneath apparent simplicity of any ballot paper. I have offered a ballot paper recently that I think covers all the reasonable bases, except the atavistic Tam Dalyell/Michael Forsyth option of reverting to a pre-devolution Scotland.

I am rather giving up hope than anyone will read or listen until the merde hits the fan, which it is already beginning to . If a 48 second exchange requires this kind of analysis, God Save Scotland - or Somebody Save Scotland …

MY BALLOT PAPER as posted earlier in the week


Answer only one question - tick only one box.

If you answer more than one question, your ballot paper will be null and void. CHOOSE ONLY ONE OPTION - GIVE ONLY ONE ANSWER

I want a fully independent, sovereign Scotland.

I want Scotland to remain in the UK with no increased in current devolved powers to Scotland.

I want Scotland to remain in the UK with some additional powers devolved to Scotland.

I want Scotland to remain in the UK with all powers devolved to Scotland except defence and foreign policy.

N.B. If you have answered more than one question, i.e. ticked more than one box, your ballot paper will be null and void.



A minority, presumably led by Lord Forsyth, may call for a fifth question - a reversion to pre-devolution status. I believe there is no evidence for other than a tiny Tory minority asking for such an option, and that it therefore should not be offered. (A caller on Call Kaye this morning asked for just that!)

Some nationalists - how many  I do not know - might want devo max as a fifth fall-back question if independence fails. I do not believe such an option should be offered, because it would require a transferable vote option.

Is it too complex? I do not believe it is. There are no gradations of independence - independence delivers devo max and negates the other options. The last three questions are all the reasonable options for those who do not want independence.

Some might argue for a YES/NO on independence, but that again would require a conditionality clause, and answering more than one question, e.g

If you say YES to independence, do not answer any other questions. If you say NO to independence, choose one, and only one of the following two options

I want Scotland to remain in the UK with some additional powers devolved to Scotland.

I want Scotland to remain in the UK with all powers devolved to Scotland except defence and foreign policy.

This is too complex and confusing, in my view, especially since the first question, the independence question would be a YES/NO, but the other two would be box tick answers.

Doubtless, some will argue over the sequencing of questions, i.e. the order they are set out on the ballot paper. Since it is a referendum with the overarching theme of independence, I believe the order I have set out is reasonable.