Chamber and committees

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.

Not the Act of Union?

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.

To ask the Scottish Government whether it will provide an update on any progress made to address concerns raised by local residents about levels of noise from HMP Cornton Vale. (S6O-05137)