The Section 30 Order
The Scotland Act 1988 re-established the Scottish parliament, which (in the words of Winnie Ewing when she reconvened the parliament in 1999) was adjourned on 25th March 1707, following the Union of Scotland and England.
There are many parts to the Scotland Act, but the one we’re interested in is in an appendix called Schedule 5. There, in part 1, paragraph 1, it lists ‘reserved matters’, one of which is ‘the Union of the Kingdoms of Scotland and England’. In other words Scottish Parliament, don’t even think of trying to end the Union.
Unless, that is, we, the UK government say you can. Because we’re in charge. But in 2012, it actually said to Scotland, ok, go ahead, have your independence referendum. And it facilitated it by changing the paragraph in Schedule 5 to say: “Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom”. Wow!
But where does the Section 30 stuff fit? Well, the Scotland Act is divided into sections. The first section, Section 1, states, “There shall be a Scottish Parliament.”; as nice a turn of phrase as you’ll see in any UK government document that talks about Scotland. Section 30 on the other hand, is a little less endearing. It says that we’re in charge and we’ll alter anything in Schedule 5 that we damn well want.
See, Section 30 says: “Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient.” Read that again and note well the word ‘any’. We’ll come back to that.
In 2012 the UK government used the powers granted by Section 30 to ‘give’ us our referendum. So far so good. But there are at least two things we should consider when we’re shouting for a Section 30 order to give us another referendum.
The first is obvious and you’ve probably spotted it already. Enacting a Section 30 order at all means that we have to ask the Union government if we can have a referendum to end the Union. And why on earth would they do that again? They almost lost the first time!
When David Cameron graciously granted permission in 2012, the Yes vote was polling around 28%. Yes had no chance of winning, so why not placate the Scots and give them their referendum? No harm done, right?
But by the time September 2014 came around, Yes was leading in the polls and the UK establishment was in an almighty panic. The lies that comprised the ‘Vow’ were cobbled together and published in the Unionist Daily Record two days before the referendum vote. In the end there was a slim No win, but 55-45 was way too close. Only 383,937 votes kept the Union intact.
Since then and given (or despite) the lack of any real push for independence from the SNP, the polls have settled to an even 50-50 split. But considering the polls were around 72-28 in favour of No in 2012 and they still almost lost, if you were in charge of the Union now, would you take the chance of another referendum when the polls were evenly split? Especially when you didn’t have to. There’s no imperative on the UK government to grant another referendum. They don’t have to do anything. They’re in charge.
The SNP’s position on refusal is clear: they would take the issue to the courts, where we might or might not win. Chances are that we’d lose and, after years of wrangling, we’d be back to where we were, only this time with the courts on the Union’s side.
But what if we did win? Victory, right? But whether a Section 30 order is achieved via the courts or is simply granted at some point by the UK government, it brings us back to that word ‘any’ in Section 30 of the Scotland Act. Remember, Section 30 states that “Her Majesty (ie the UK government) may by Order in Council make any modifications of Schedule 4 or 5…”. And why would a conniving, sleekit Union government not make the maximum use of what Section 30 provides? Remember, they’re in charge.
The danger of a second Section 30 order is that it is granted at all, since the UK government can add any old provision into it that it wants. What if it added conditions to the Order that 16 & 17 year olds couldn’t vote? What if it analysed who was likely to vote Yes and who would vote No and dictated the franchise to tilt votes in the Union’s favour? And what if it placed a condition on a Yes victory? It’s got previous on that one.
In the 1979 assembly referendum, the government stipulated that more than 40% of the electorate had to vote in favour in order for the vote to carry. That’s 40% of the total electorate – not 40% of those who voted. Which meant that if you didn’t vote because you were washing your hair that day, or were on holiday or had died, you effectively voted No. The vote for the Assembly was lost. Even although 51.6% voted in favour, the turnout of 64% represented only 32% of the electorate. Tough luck, Scotland. Try again – only if we let you, of course.
So the danger of a new Section 30 order isn’t that it’s not granted but that it is granted and is so full of conditions that Yes cannot hope to win. And what we do then? Fight the referendum against insurmountable odds? Or complain that’s it’s too hard? Maybe take it to the courts again.
A Section 30 enabled referendum is a giant elephant trap with big sharp spikes just waiting to impale us. Asking for another Section 30 order is next to useless. Useless because it places our destiny in the hands of the very Union that we seek to end. Asking for our independence isn’t going to work again.
We need to end the Union ourselves to take back our independence.