Seòmar agus comataidhean

Does anyone have the secret plan?

Good morning to our witnesses.

First, I will just briefly reassure Mr Halcro Johnston that, if there is a genuine and sincere secessionist movement arising in Orkney or in Shetland or in both, if the goal is to establish how it would assert itself today, while that sovereignty lies at Westminster, I fully support that—that is exactly what we are trying to achieve for the whole of Scotland. If the goal is to assess how it would assert itself in the context of an independent Scottish constitution, I would support a constitution that gives the right of a serious and genuine movement such as that to test public opinion. I think that the answers that we are looking for in this inquiry are exactly the answers that you were seeking.

I wonder whether I could come back to the phrase “settled will”. It seems to me that we should be dismissing this just as a piece of political rhetoric, in the same way that some of our witnesses suggested we should in relation to the phrase “once in a generation”. These are political phrases used in debate rather than points of principle. That is partly because, as some have argued, settled will is hard to define; it is partly because it is not the precedent.

Even in the 1997 devolution referendum, I do not think that anyone was really rock-solid sure whether the tax-varying power would be supported by the overwhelming majority of the people of Scotland. The AV referendum, certainly, was not about establishing the settled will; it was a wheeze to offer people a voting system that nobody really wanted in order to protect the existing one. The EU referendum in no way represented an attempt to define the settled will. It was a very open question and since then it has given rise to a majority for rejoining in many opinion polls. Therefore, should we not dismiss this idea of settled will and the associated argument that Adam Tomkins gave us in an earlier session that we should only ever use referendums to establish what we all already know?

The final aspect of this is that, in the question of Scottish independence—where we all accept that a referendum would have to be agreed by two different Governments, presumably wanting two different outcomes—saying that it is about establishing the settled will is almost a recipe for paralysis, because you will never have a position where both Governments are 100 per cent confident that they represent the settled will. Should we not forget this phrase altogether?

The question is for whoever would like to jump in. I am looking at the people in the room, and I am looking at the screen.

Do the online witnesses want to jump in at this point?

Forgive me for jumping in, but I framed the question as I did in order to stress that it is not so much about deciding whether a referendum should be triggered, as forcing an answer—which is absent from the UK Government at the moment—to the question of how the right to choose, the right to decide, might be exercised.

I think that it should be as well, but it has not been so far.

That answer comes on to the second point that I want to explore, which is the principle that the people of Scotland have the right to decide and that Scotland can become independent if the people of Scotland so decide. That is not ancient history. It has been agreed by all political parties elected to the Scottish Parliament, by both Governments and it has been made explicit in the Smith commission report. The people of Scotland have been given that right but are being told that, although they have it, they may not exercise it and they will not be given any means by which to exercise it. If an individual is told that they have the right to vote but that no polling places will be opened and no ballot papers printed, then the right is meaningless.

I have previously explored whether the political dysfunction around creating a means for people to exercise that right could be broken by some kind of element of direct democracy or participative or deliberative process. I appreciate Professor Renwick’s evidence that there might be more value to formal processes such as citizens assemblies in informing a referendum debate than in triggering a referendum. I appreciate that. I know that I am asking this slightly out of desperation, but is there any way that the witnesses can think of to enable the people of Scotland to break the deadlock? That need not necessarily be a formal process that triggers a referendum, but could you define how to answer the question of how, if the people of Scotland have that right, they may exercise it?

Thank you.

Should the Scottish Government be making you a bit less happy, Ewan?

Good morning. I want to move on to enforcement. Obviously, the ideal would be that enforcement is not necessary and there is just compliance, not only with the letter, but with the spirit of the regulations. However, as we have heard, that is not happening down south.

Assuming that enforcement is necessary, I am curious about your attitude to the penalties that are included in the regulations and whether they will be adequate—that is, whether local authorities will find that the fines that roll in are enough to pay for regulation, or whether it will take additional resource for local authorities to be able to enforce the regulations.

I will start with you, Professor Johnstone, because you talked about your work on studying the impact of the regulations down south. Are the big retailers simply rolling the policy out at a company-wide level? Is the regulation in England already having an effect on their behaviour in Scotland, or are they just doing whatever is allowed within the law in the different jurisdictions?

How much of the responsibility for enforcement lies with the industry?