Let the people speak - and soon!

The debate about the referendum process has provoked comment from constitutional lawyers and political scientists. However, less marked has been a dialogue on the timing of the referendum. The SNP Government has proposed the autumn of 2014, but of course the timing of the referendum is not its decision alone; other parties, interest groups, individuals and commentators should have a fair shout too in when exactly the referendum does happen.

The Holyrood Government led by Mr Salmond and Ms Sturgeon was gleg to assert that in commencing the debate with proposals for the referendum process, it was faithfully doing the bidding of its democratic “mandate” from the 2011 Holyrood election vote. Yet, constitutional writers from A V Dicey and Walter Bagehot up to the present era of Bradley and Ewing, have questioned whether any binding concept of “mandate” even exists.

It has long been accepted that incoming governments on these shores will implement policies and programmes, whether or not agreed to by the nation in the preceding election, or may not implement them at all, as often as not, depending on how political contingency and parliamentary or legislative hours permit. There is nothing holy or even constitutional about the so-called “doctrine of mandate”, whether as part of constitutional law or, for that matter, as an accepted constitutional convention.

Back in the day, in his Constitutional Law of 1968, the late Professor John D B Mitchell (writing before any modern constitutional referendum on a major issue had taken place within Great Britain), doubted the very existence of a doctrine of electoral mandate granting any particular government a right or obligation to implement or bin any chosen part of its programme. More recently, Keith Ewing and Anthony Bradley, in the latest edition of their work on Constitutional and Administrative Law, mention no such idea as “mandate” being part of our constitutional law and conventions.

There is no sign in the academic books nor support in constitutional law theory for an Athenian concept of a voters’ mandate of direct democracy being handed to mandated governments. And thus surely the absence of a real electoral or political mandate leaves rather a lacuna when it comes to any Scottish or Westminster Government claiming that they enjoy a voter-given right to hold a particular referendum, far less fix a date for it which seems to have been pitched as distant as it can.

At least one political commentator, Martin Kettle of The Guardian, recently argued that a Scottish referendum should be held earlier than 2014 because if not held sooner, the referendum and its aftermath would coincide with the approach to the UK election (likely to take place in 2015 at the latest). Given that a political journalist has uttered more on the timing of the referendum than any constitutional lawyer has, we can deduce perhaps that the choice of date for our next constitutional referendum here in Scotland is a decision that will be governed by political considerations and is not a matter for one Holyrood Government and party to fix to suit its own perceived advantage. Scottish civil society and electors have to be considered, their convenience and their best democratic opportunity, and that appears unlikely to allow the referendum being pitched at a date still some 30 months away.

The First Minister and his deputy have said that Scots deserve a full and far ranging debate before making a major decision on Scotland’s future. Nevertheless, does anyone seriously believe that such a thorough debate cannot more than adequately be conducted if the referendum were to be fixed for, say, the spring or autumn of 2013? One hopes that the recent consultations of UK and Scottish Governments with interested citizens will see the matter of the referendum date properly focused.

What constitutional lawyers from J D B Mitchell through to Bradley and Ewing indicate to us is that matters such as “mandates” and “referenda” are exploited primarily as vehicles of political expediency and take place or not according to considerations of political gain – thus Harold Wilson's 1975 referendum on the UK’s renegotiated membership of the Common Market helped Wilson with his own party’s ideological split on Europe, and thus too was the James Callaghan minority Government’s grudging 1979 referendum on a Scottish Assembly, in an effort to soldier on in power with Liberal support.

Moreover, even the “landslide” Blair Government which took over in May 1997 had a clear political interest in implementing its putative “mandate” to deliver a Scottish legislature with Labour’s need to assuage the growing SNP electoral support which was looming by then.

Certainly there are powerful arguments for an earlier referendum which can be solidly based on the imperative for a stable economic and political way ahead for Scotland. However, in so far as we can determine anything from the constitutional and governmental precedents, it is clear that Prime Minister Harold Wilson gave the UK electorate a referendum on Europe in June 1975 scarcely a year after the two General Elections of 1974. In addition, the minority Callaghan Government held its 1 March 1979 referendum on a Scottish Assembly within six months of the Scotland Bill having emerged from its long and tortuous passage through Westminster and its labyrinth of committees. Tony Blair's Government held its 1997 referendum on a Scottish Parliament only four months after assuming office in London. All these referenda were about serious constitutional matters and only took place after adequate debate and discussion in corridors of power, in civil society, in boardroom and pub.

Following these yardsticks, our referendum ought to take place soon rather than on a later day. It approaches the unconstitutional for a Scottish Government elected in early summer 2011 with a strong majority and, on its own argument, a powerful “mandate”, to hold a referendum on independence all of three (indeed, three and a half) years after it has been elected.

On the precedents, the referendum should take place in summer of 2013, at the latest, surely. Let the people speak.