Did the Vow break purdah?

Loss is difficult. It’s even greater when you have spent 2 years in a bubble composed of a self selecting audience of like minded souls. You mistake the enthusiasm of your audience for general popularity.

So when the loss did come for the Yes movement it was almost impossible for many of the most enthusiastic supporters to take. Conspiracy theories filled the failed Yes movement with 42% of Yes voters believing that fraud played a part in the  referendum result. Some centered around the Dundee count  and others over Ruth Davidson on BBC discussing postal vote sampling (something that Humza Yousaf also stated on the same programme).

However the most mainstream conspiracy theory centered around “the Vow” which was, according to the advocates, an illegal intervention late in the campaign in breach of the purdah rules.

Despite the overwhelming evidence that the Vow had no impact on the result of the referendum this became the principle excuse for most bitter Yes conspiracy theorists as they thrashed around for someone else to blame for their loss rather than confront the contradictions of their own campaign.

The Vow emerged from the cooperation between the three parties in the Better Together campaign, each of which had published a different set of proposals for devolution after a No vote in the independence referendum.

On the 16th of June 2014 the three party leaders in Scotland issued a joint statement covering the common aspects of their proposals:

“Power lies with the Scottish people and we believe it is for the Scottish people to decide how we are governed.
We believe that the pooling and sharing of resources across the United Kingdom is to Scotland's benefit in a partnership of four nations in which distinct national identities can flourish and be celebrated. We believe that Scotland and the United Kingdom have been strengthened since the advent of devolution. We support a strong Scottish Parliament in a strong United Kingdom and we support the further strengthening of the Parliament's powers. The three parties delivered more powers for Holyrood through the Calman Commission which resulted in the Scotland Act 2012.

We now pledge to further strengthen the powers of the Scottish Parliament, in particular in the areas of fiscal responsibility and social security.

We believe that Scotland should have a stronger Scottish Parliament while retaining full representation for Scotland at Westminster.
Our common agenda can bring people together from all of Scotland, from civic society and every community.

The Scottish Labour Party, the Scottish Conservative and Unionist Party and the Scottish Liberal Democrats have each produced our own visions of the new powers which the Scottish Parliament needs. We shall put those visions before the Scottish people at the next general election and all three parties guarantee to start delivering more powers for the Scottish Parliament as swiftly as possible in 2015.

Our common endeavour will deliver a stronger Scottish Parliament in a stronger United Kingdom.”

Note the key aspects of this statement.

More powers for the Scottish Parliament in tax and welfare, a commitment to pooling and sharing and a commitment to start work “as swiftly as possible” after the General Election.

 

Following on from this joint press statement by the Scottish Party leaders a second statement was prepared by the UK Party leaders, issued on the 7th of September and published in the Daily Record, who with a creative flurry dubbed the statement the Vow and published it on the front page with a clever creative treatment.

This Vow followed on from the Scottish Party leaders statement reiterating the commitments to more powers in tax and welfare and the retention of pooling and sharing under Barnett as well as a specific commitment to a new timetable for the implementation of the new powers which replaced the vague “swiftly as possible”

This statement by the three party leaders has since been held up by Yes conspiracy theorists as a breach of the rules of purdah, thereby making the result illegal.

Purdah is a specific period in the run up to general or local elections or referenda where the machinery of government cannot be used in such a way that it can influence the result.  So for example during a general election campaign imagine the concerns expressed if the UK government (which their media reach and the machinery of the civil service) was used to announce a series of huge public works. This would clearly be to the benefit of the day and is rightly outruled by purdah.

More than anything else the rules are designed to protect civil servants from being involved in conflicts of interest during an election or referendum period. The rules for the UK civil service under purdah during the independence referendum were set out in August 2015.

The key part of the guidance for civil servants was set out here, again designed to protect the impartiality of the Civil Service.  

Clearly purdah does not and cannot apply to party announcements otherwise the government of the day could not issue a party manifesto during the election purdah period.

This point has been specifically clarified in Parliament where ministers are legally allowed to speak and campaign in an unofficial (non Governmental) capacity.

Therefore the Yes movement contention hangs on the Vow being a new statement of government policy using the machinery of government.

One can argue about the Vow being something new, the case is very weak given that it reiterated the statement already made on 16 June 2014 however leaving that aside the case hangs on whether this was a government statement in breach of purdah.

Ed Miliband was not in government at the time of the Vow, the statement was issued by the “Three Leaders” as the Daily Record explicitly noted.

This was not or could have been a government statement, it did not employ the machinery of government but was a three party media release which was published in a privately owned newspaper.

All this is often ignored by the Yes conspiracy theorists but the central issue which they cannot escape was that if the Vow did indeed breach purdah as they claimed then the Yes movement would have had the right to subject the result to a judicial review. Why didn’t they? If this was indeed a flagrant breach of the rules then there would have been a challenge. There wasn’t.

The Vow did not breach purdah, it did not affect the result.

The Yes movement lost because they didn't have a coherent case for independence, rather than face up to this they prefer to obsess over “we was robbed” conspiracy theories that don’t stack up. That may help them feel a little better inside but it does nothing for the independence movement they profess to care so much about.