I listened with interest to Professor Tony Carty (Public Law and International Law) the other day as he was interviewed by Derek Bateman (listen here about 35 minutes in, after the also interesting Steven Purcell: http://batemanbroadcasting.com/episode-25-stark-choices-facing-labour-scotland/ ). Tony works in both Aberdeen University and Hong Kong University, and in lieu of my argument with the would-be ‘No’ voters the other night, his interpretation of the real nature of the states of China and the UK was very interesting. We are used to thinking of China as a totalitarian state and Britain as a democracy, but Tony’s assessment, based on the actual political structures and the degrees to which freedom of expression is allowed, is very, very different:
“China is not a totalitarian state – I think the political scientists call it an authoritarian state, where there is a very large if not complete freedom of expression and opinion in China, and that is terribly important in terms of intellectual creativity and dynamism, and it is a part of the world which is on the way up financially and economically. And Britain is in a very serious structural bind….it is virtually a kind of museum, a kind of antiquated structure which is entertaining to observe and to find amusing, but I have very dark views about where Britain is going to go…its economic and social situation can only get worse…. While its called a democracy…in practice it’s a very successful authoritarian paternalistic system where the government is for the interests of a very tiny minority. …Britain [having lost its Empire] is still fundamentally suffering from massively reduced abilities to earn and to compete at the global level and all the social and economic problems are really within that frame. And Britain, as a whole, is not coming up with a solution.”
All very fascinating – if not chilling – and his distinction between ‘Britain as a whole’ and Scotland was quite deliberate. But Professor Carty’s assessment of ‘The Vow’ and its consequences for the Referendum were even more interesting.
First of all, let’s have a bit of a recap of the little that we know of how ‘The Vow’ came about, based on various investigations so far. Trying to track back the evolution of ‘The Vow’ has been an oddly empty journey, with no paper or E-trail apparently there (according to Freedom of Information requests) to show the development and refining of the wording between the different parties. This is kind of odd. Did the party leaders really just give it to a marketing or PR firm (perhaps one of the many based in London that sponsored the hoax astroturf ‘No’campaigns?) to come up with, and say ‘do something sexy-looking – but ultimately vacuous so we cannot be pinned down on it – for a tabloid front page’? In the absence of any sign of dialogue between the supposed signatories (although according to other FoI requests there is actually no signed piece of paper by the party leaders either – so referring to them as signatories of something that they did not actually sign is probably inappropriate), perhaps that is not such an outlandish suggestion.
Be that as it may, when ‘The Vow’ emerged (perhaps via immaculate conception between the three?), many people cried ‘Purdah violation’ – that one month period immediately prior to the vote, within which no new proposals were supposed to be made. Unfortunately, ‘purdah’ appears to be little more than just a ‘gentlemen’s agreement’, without any legal binding nature, even though mentioned in the Edinburgh Agreement.
But what Professor Carty, as a specialist in international and public law says, is that ‘The Vow’ actually invalidates the Referendum.
“A No against independence would have meant the status quo – and what ‘The Vow’ amounted to was very substantially increased powers as an alternative option. And so that makes it very difficult to know what people were voting for – I think the Ashcroft poll analysis shows that at least I think 27% of the Nos – something like that – were influenced by this ‘Vow’, and they would have voted the other way if it hadn’t been for ‘The Vow’. I think it does really muddy the waters. If the government had kept its nerve and the unionist parties had kept their nerve, and done nothing, kept their mouths shut, and there had still been a ‘No’ vote, no matter how small, they would have had much more authority.”
He distinguishes very clearly between ‘The Vow’ and the proposals that each of the political parties had brought forward in the early spring for more powers for Holyrood, stating that ‘The Vow’ was altogether different: “The small number of polls that were coming out with a majority for ‘Yes’ produced a panic and this was a pretty formal solemn undertaking and not merely a speculative discussion.”
“These promises made at the last moment on the Tuesday of the week of the Referendum, two days beforehand are a changing of the goalposts and invalidate the Referendum, because they change the question, or try to change the question, just before the people voted, and consequently its virtually impossible to say what it is people actually voted for.”
This is a far more succinct explanation than I have been able to employ with regard to the term ‘Conditional No’, although that group is certainly immersed within the electorate that day, in terms of people who thought they were getting a significantly enhanced set of powers by voting ‘No’ – maybe even DevoMax – purely because ‘Yes’ looked like winning and had forced Westminster to finally offer it. It’s hard to measure, of course (although one can certainly use the Ashcroft analysis), and that is where the uncertainty comes in, and David Cameron’s use of the phrase the ‘settled will of the Scottish people’ becomes utterly laughable. His sleight of hand gave the illusion of an offer, but when the ‘No’ voters turned over the cup, they found not even a bean.
But Professor Carty does not finish there. He sums up the Referendum process, disrupted at the eleventh hour by ‘The Vow’, as inconclusive, not just because of the muddying of the waters of what people were actually voting for, but also, as he puts it, “the political uncertainty in England that makes it unlikely that there will be anybody there, a negotiating partner on the English side, who will honour this vow.”
In a sense, that ‘get out of jail free’ card that the Westminster parties have, with no legislation being now required before May, makes it all the more important that a cadre of MPs are sent to London then with a very clear agenda to ensure that they DON’T get out of jail…perhaps even spend a bit longer in the Tower of London, getting their tootsies burned as they are held to the fire for as long as possible. Because otherwise, the ‘No’ voters, blinded with promises of magic beans, really will have thrown away our one moment of strength and sovereignty entirely.
“These promises made at the last moment on the Tuesday of the week of the Referendum, two days beforehand, are a changing of the goalposts and invalidate the Referendum, because they change the question, or try to change the question, just before the people voted” (Professor Tony Carty, Professor of Public Law & International Law, Aberdeen University)