Referendum and the 'clarity clause'

As so often in search of political insight, one turns to Marx: in this case, Chico as well as Groucho.

You remember, of course, the scene in A Night at the Opera where Groucho and Chico are discussing an artist's contract.

Chico is puzzled by the final section - which Groucho dismisses lightly as being merely the sanity clause, common to all legal documents.

Cue Chico: "You can't fool me. There ain't no sanity claus!"

OK, it's better - much better - on screen in what is my favourite movie. But now it seems we are to have a comparable dispute here in Scotland.

This time around the subject of contention is a clarity clause.

When Scottish ministers heard the word "clarity" being used several times by their unionist opponents in interviews, their ears pricked up (not that I am suggesting they are vulpine or even canine, just a figure of speech.)

Anyway, ears pricked, they consulted their archive. Supporters of the union file this issue under "R" - for responses, commonsense.

Alex Salmond places it under "T" - for tricks, sneaky.

The Clarity Act was a statute whereby the government of Canada laid down detailed provisions for the holding of a referendum by Quebec in order, it was argued, to ensure that the clear will of the people of that province had been expressed in the plebiscite, without contention.

The statute, in 2000, followed a Supreme Court ruling to the effect that Quebec could not secede unilaterally but that the Canadian government would be obliged to negotiate for secession, should a clear majority of the Quebec population so vote.

It is now being suggested that something comparable might be required in Scotland: firstly, to ensure that the plebiscite is legal (the constitution being reserved to Westminster) and, secondly, to avoid uncertainty in the minds of the voters.

It is being suggested further that such a clarity clause might be appended to the Scotland Bill, which is presently before Westminster: the one which seeks to enhance the powers of Holyrood.

That prompts an immediate issue. The UK government has said it will not enact the Scotland Bill without explicit further consent from Holyrood.

Scottish ministers are already talking about thwarting the bill on the grounds that, as they argue, the economic proposals do not go far enough and could be damaging.

The further inclusion of a clarity clause against their wishes and, depending upon wording, contrary to their intent might well incline them still further to seek to veto the Scotland Bill.

Passing interest

Still, if that veto succeeded, it would be open to the UK government to revive the clarity clause as a full-scale bill, potentially defying any further attempt by the Scottish government to challenge their mandate.

At this stage, Scottish ministers are rather inclined to say: "You can't fool me. There ain't no clarity clause."

They suspect, with some justice, that UK ministers are at least partly trying to draw responses from others: specifically, to bring Labour out to play on the side of the union, in compact with the UK government; and to oblige Mr Salmond to offer concessions on timing and content.

But, beyond that, the UK government notes that Scottish independence would not solely impact upon Scotland.

It would have consequences for the rest of the UK - and that, consequently, they argue that Her Majesty's UK ministers are entitled, indeed obliged, to take a passing interest in the topic.

Things remain rather fluid for now.

Each side is trying to blame the other. It's like Groucho passing over the restaurant bill to Margaret Dumont: "Nine dollars and forty cents! That's an outrage! If I were you, I wouldn't pay it!"

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