Cameron and Miliband would find it hard to hammer out a deal with Salmond
This article appeared the day before the referendum on Scottish independence. Much of it could as easily have been written about Brexit.
‘Of course, once you calm down, if you ever calm down, the real torture begins: dividing the assets, selling the house, pleading your case to some overworked thirty-year-old guardian ad litem who decides who gets your kids and on what terms, fighting over the pets (no joke: a custody fight over a Great Dane named Rajah lasted months), negotiating child support payments, making alimony payments, dragging yourself to a therapist and your kids to child psychiatrists, and allowing some black-robed judge to have the last word on your future. I always make sure that I have a Kleenex box handy in my office.’
Divorce, as the celebrated lawyer Gerald Nissenbaum makes clear in his memoirs, is hell. And that’s the reason I think that if Scotland votes ‘yes’, it may not be the last referendum we have on the topic. If you can spare me a moment, I will take you through the logic.
If Scotland files for divorce, the rest of us are going to need a lawyer. The whole thing will be very messy indeed. And they will hire Alex Salmond, who, you have to grant, is likely to be very good. Who will we get? Issues that we have hardly discussed will suddenly become central political questions, and highly controversial. Let me give you a few examples.
What do we do about all the government offices we have based in Scotland? Not just the staff, and their employment rights and the continuity of public services, but the physical assets? What about the armed forces based there and their equipment?
What, of course, about the North Sea oil revenues and maritime rights? What about the BBC? What about galleries and museums? Where will the borders go and who will be allowed across them? What will the immigration rules be? What attitude will the rest of the UK take to a Scottish application to the EU? There are also the tricky questions about British defences, particularly the siting of Trident.
Then there are pension rights accrued in the public sector and the payment of state pensions. And there will be any number of complications about tax revenues and who they belong to.
And this is all before you get to the big-ticket items. What portion of our national debt, and the interest payments on it, belongs to Scotland? And what happens about the currency and Scottish financial institutions?
All of this and more will become instantly a major part of the coming election campaign. A ‘yes’ vote will not change the date of the general election but it will change the question. We will be hiring someone to handle the negotiations. Which will leave both of the main party leaders with serious problems to resolve.
While the best advice of divorce lawyers might be to take a deep breath and try to construct a settlement that is fair to all, their clients often find this advice hard to follow. And certainly in the early days after Scotland chooses independence, political opinion in England, particularly, is likely to favour a pretty robust approach to what is ‘ours’ and what is ‘theirs’.
Where does this leave David Cameron? If Scotland votes to end the Union, the Prime Minister will face serious calls to resign. The Union would be gone after hundreds of years and on his watch.
His response, doubtless, will be to argue that this is not a time for useless gestures. A prime minister has work to do, and he needs to get on. He will immediately start explaining the negotiations that need to take place. And will immediately run into the argument that will be made against him all the way to election day.
It is this: why trust David Cameron to negotiate with Alex Salmond when the last time he did so, it did not go well? Mr Salmond got, broadly, the timing he wanted, the referendum phrasing he wanted, the electorate he wanted and, above all, the answer he wanted. It is not necessary to accept these criticisms yourself (I don’t) in order to appreciate that they constitute an argument that will have political force.
Then there is Ed Miliband. He would not wish to fight any election in which his perceived leadership qualities became a central issue, since these qualities do not poll well. Yet this is a secondary problem when put alongside the agonising dilemma that he will have about his Scottish MPs.
If Mr Miliband promises not to govern in 2015 using his Scottish MPs – in other words only to govern if he can do so with just English and Welsh members – he is quite possibly sacrificing the chance to govern at all. Yet if he does not make this promise, he would be telling English voters that he intends to negotiate with Scotland using Scottish MPs as the casting vote over the deal he strikes. I believe that this offer would be impossible to sell.
So Mr Cameron has a terrible problem, and Mr Miliband one at least as bad, possibly worse. I think both of them might plump for a similar solution. They might offer English, Welsh and Northern Irish voters a referendum on the outcome of the negotiations.
Nobody could, or should, deny Scotland the constitutional status it votes for on Thursday. That would be unthinkable. The rest of the UK will not stop the Scots divorcing us if that is what they want to do. Yet a vote on the terms would seem reasonable. And would solve big political problems for both party leaders.
Mr Cameron would be able to say that whatever doubts might be had about the deal he would do, the people would have the final say. He wouldn’t, for instance, agree to a currency union with Scotland without a vote any more than he would agree to a currency union with France without one. Made swiftly, a referendum promise might repel the calls for resignation and outflank UKIP, both of which will be immediate problems.
For Mr Miliband, it might be possible to offset his little Scottish MPs difficulty. He could argue that these MPs, far from being a problem, would be useful because they understand Scotland. They know where the co-respondent to the proceedings has hidden the assets. Yet they wouldn’t have the power to approve the deal; that would lie with the people of the rest of the United Kingdom.
Just a thought. In case.