Chamber and committees

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?

Maybe I introduced the confusion here. I do not think that that is what is happening with the Turks and Caicos Islands; it has not made an appeal to the United Nations or other international bodies on the basis of its origins as a colonial state. It comes back to the point that, if the UK Government decides that it wants to allow for an expression of self-determination, it can do so itself, and, indeed, it has done so on that basis. It is not, to the best of my knowledge, part of a wider campaign.

I have a final question. We have had a lot of discussion in this debate about the once-in-a-generation idea. It was mentioned by a couple of very prominent people on at least a couple of occasions—with, I think, a misinterpretation of what was said—but it seems to have been elevated almost to the status of a constitutional convention and become a cast-iron law. I point out that, during the 2014 referendum, it was said that the only way of securing Scotland’s place in the European Union was to vote no, and that has not been continued as a constitutional convention. What is your view of the once-in-a-generation tenet?

I have a very quick question that it would be great to get a quick answer to, because I am genuinely confused about the matter, and then I want to ask another question after it. It seems to be the fashion to refer to secession rather than independence—fair enough. What is it that we are seceding from if we agree independence?

Thank you.

The referendum in 1979 was not a secessionist one—the one in 2014 was.

I have a question on the legal position, based on your submission and also what we heard earlier from our advisers. When this inquiry came about, I asked how consent can be exercised in relation to the Act of Union, if it is said to be democratic and voluntary. However, from what you said and from what we heard from the committee’s advisers—Aileen McHarg also mentioned this in her submission—I know that there seems to be a view that the treaty of union is not that relevant to the debate that we are currently having. Am I getting that wrong?

I am pretty sure that the UK Government would not have given as the reason for its granting that authority that the Turks and Caicos Islands were a former colonial possession. That is not the basis on which it would do that, and I do not think that the case being made in that respect is based on its status as a former colony. I do not know what its status is just now; it might have dominion status, but I am not sure. I am pretty sure, though, that the UK Government would not have justified its actions by saying that it was an ex-colony. That being said, I do take your point.

But what would we be seceding from?

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.

With regard to the legal route, we have heard evidence on Saint Kitts and Nevis. However—I could be wrong about this, and I am happy to be corrected—a more recent precedent seems to be the Turks and Caicos Islands. I think that, last year, the UK Government passed a law allowing the Turks and Caicos Islands to have a referendum and move on to independence, if it chose to do so. I am just stating that because I am sure that I heard it somewhere. It would interesting to know whether any of the panel can tell us anything that they know about that particular situation.