ANDY Burnham has been panned as “foolish” and “poorly briefed” on the constitution by experts over his comments about Scottish independence.
The Prime Minister sent shockwaves through Scottish politics last Wednesday after admitting that Scotland had the right to an independence referendum if there was “clear consensus” on the issue.
And he said that the process by which Holyrood could hold another vote on the issue was “exactly” the same as applies for Northern Ireland, for which he has come in for criticism by leading thinkers on the constitution.
Professor Aileen McHarg, one of the most prominent public law experts in Britain, told the Sunday National Burnham’s comments were “significant” but that he was wrong to draw parallels with the situation in Northern Ireland.
She pointed out that the Good Friday Agreement, which ended decades of bloody civil war in Ireland, mandates a reunification referendum if the UK Government judges “that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland”.
McHarg pointed out that this was at odds with Burnham’s statement in Parliament that there should be a “clear consensus” for Scottish independence before another poll – as the Northern Irish example only requires a “bare majority”.
“It’s clear he was a bit foolish to draw an analogy with Northern Ireland,” she said.
“There the test isn’t 60% support; it is bare majority support.”
But she also argued that Burnham’s comments, while “significant” for shifting the “mood music” in Westminster, were a “statement of the obvious”.
McHarg added: “They need to be persuaded that this is something that has to be taken seriously.”
The academic said that, with the most recent polling showing only slim leads for Yes, the UK Government could continue to ignore demands from the SNP for another referendum.
Of the 10 most recent surveys on the question put in the 2014 referendum, Yes was ahead seven times but attained more than 50% only once in a poll for The Sunday Times published in April.
Professor Colin Harvey, a leading constitutional law expert at Queen’s University Belfast, claimed that the Prime Minister seemed ignorant of key constitutional debates in the UK.
He said: “The Prime Minister seems to be poorly briefed on entirely predictable and basic questions about the constitution.
“After his recent visit to Belfast, he had to underline his commitment to the Good Friday Agreement following dismissive comments about a border poll.
“His remarks about Scottish independence initially appeared to be a departure from an earlier position and were widely welcomed. However, these too have been subsequently clarified.”
The academic pointed out that there were “highly distinctive” legal and political contexts in Scotland and Ireland, adding: “That needs to be recognised. But the idea that the people of Scotland can be constrained within constitutional arrangements they no longer want is unsustainable.
“Even more concerning if claims about a voluntary union are taken seriously. My view is: Let the people of Scotland decide.
“The Westminster Government would be better advised to commence proper preparations for new constitutional configurations across these islands.”
McHarg also pointed out the distinctive situations in both places, pointing out that the Good Friday Agreement provides for a reunification referendum to be held on both sides of the border. There was no equivalent requirement in the 2014 independence referendum.
She also highlighted how the UK Government is bound to act “honestly” and with “rigorous impartiality” in the event of an Irish border poll, adding: “Because there is no legal framework in relation to Scotland, there would be no equivalent peg to hang these kinds of duties on.”
And while the terms of any future independence referendum would be up for negotiation, the Good Friday Agreement stipulates that a plebiscite on Irish reunification would be “legally binding, not merely advisory”.
“In the event of a majority vote for unification, the UK Government would have to enter into negotiations with the Irish Government and, if agreement is reached, lay legislation before Parliament to give effect to it,” McHarg added.
This could be different in Scotland where indyref2 could be framed as an “advisory referendum”, such as some anti-Brexit campaigners tried to argue in the wake of the Leave vote in 2016, meaning Parliament would not have been bound to realise the result.
Author Ben Collins, who has written about his switch from a Unionist to Irish republican standpoint, told the Sunday National that while he believed Scotland should have the right to decide its future, he believed that “the circumstances which led to the Good Friday Agreement were unique to the island of Ireland”.
He added: “Scotland must be able to vote to leave the UK without requiring the consent of England, Wales or Northern Ireland.”
Collins, whose books include The Irish Unity Dividend and Irish Unity: Time To Prepare, said: “It is welcome that Andy Burnham recognises that Scotland, like Northern Ireland, should have a democratic route to leaving the UK.
“We need transparent criteria and process from the British Government to show that the UK is a voluntary union. The British Government must rigorously adhere to the terms of the Good Friday Agreement.”
A Downing Street spokesperson did not provide comment when approached by the Sunday National but pointed to Burnham’s response to Swinney’s request for a legal mechanism to trigger indyref2, in which the Prime Minister said: “In my remarks, I was simply highlighting that there is no consensus for an independence referendum in Scotland and nor is there a clear basis to suggest that a majority of people in Northern Ireland presently wish to separate from the United Kingdom.”
