Scotland knot

The Scottish Referendum Argument

Published: 10 February 2020

The Scottish First Minister has requested the Prime Minister bring forward an order allowing the Scottish Parliament to approve a second referendum on Scottish independence. The Scottish Parliament has voted in favour of this, while the Prime Minister has refused. Here we present three blogs looking at the constitutional and political arguments about a second independence referendum. All views expressed are those of the authors and not of the Centre on Constitutional Change. 
 

Constitutional Pathways to a Second Scottish Independence Referendum - Chris McCorkindale & Aileen McHarg (This blog was previously posted by the UK Constitutional Law Association and is reposted by permission of the authors

A Second Scottish Independence Referendum? - Michael Keating 

When and if to Choose a Second Time - Jim Gallagher 

 

Constitutional Pathways to a Second Scottish Independence Referendum

On 19 December 2019 – a week after the Westminster General Election at which the SNP, again, won an overwhelming majority of Scottish seats – the Scottish Government published its long-awaited case for a second independence referendum: Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands

The document does three main things, aimed at four distinct audiences. First, the bulk of the discussion is devoted to setting out the democratic case for holding a second referendum by the end of 2020. This is based on three claims: that the people of Scotland, as members of a multi-national Union based on consent, have the sovereign right to determine their own constitutional future; that there has been a material change in circumstances since the 2014 referendum; and that the Scottish Government has a mandate to hold a referendum. The material change in circumstances is said to be the fact that Scotland has left the European Union despite the desire of the majority of Scottish voters to remain, combined with what the Brexit process has revealed about Scotland’s place within the UK. The Scottish Government’s mandate derives from its victories at the 2016 Holyrood election, and the 2017 and 2019 Westminster elections, combined with a majority vote in the Scottish Parliament on 28 March 2017. The main audience for this part of the document is soft Unionist supporters in Scotland and beyond. It seeks to persuade them that it would be undemocratic for the UK to continue to refuse to facilitate a second referendum, thereby drawing attention to the SNP’s central constitutional argument for independence: the continuing democratic deficit in the governance of Scotland.

The second aim of the document is to make the case for a second referendum to be held on a consensual basis, and for co-operation by the UK Government in putting its legality beyond doubt. The document refers to the precedent of the October 2012 Edinburgh Agreement, in which the UK and Scottish Government agreed on the conditions for a legal, fair and decisive referendum, and which led to a temporary amendment of the Scotland Act 1998 via an Order under section 30 of that Act to enable Holyrood to enact authorising legislation. The main audience here is two-fold. First, the Scottish Government’s own supporters, some of whom are impatient with what they see as its excessively cautious approach to securing independence. Second, the EU institutions, for whom the legality (as well as the consensual nature) of the process might condition any future relationship with an independent Scotland.     

Finally, in Annex B, the document sets out draft amendments to the Scotland Act – to be made either by another section 30 Order or by primary legislation – to secure the necessary transfer of competence. These go significantly beyond what was agreed in 2012. First, they include an explicit statutory recognition of Scotland’s right to self-determination. Second, they would permanently amend the Scotland Act to make it clear that Holyrood has competence to authorise an independence referendum. Third, they make provision for implementing a vote for independence by placing a statutory duty on the UK and Scottish Governments to co-operate in securing the transition to independence, and by extending the legal competence of the Scottish Parliament, Scottish Ministers and other public authorities to prepare for independence. Clearly aimed at the UK Government, these proposed amendments may more accurately be seen as an invitation to treat rather than a realistic expectation of what might be agreed. Indeed, unionist parties in Scotland are likely to want to place more conditions on a second referendum than on the first – for instance, control over the referendum question, or requiring a special majority to trigger a vote.

Assuming that the UK Government continues to refuse to cooperate, where does that leave the prospects for a second referendum? In the remainder of this post, we consider, first, why the legality of a referendum – and, by extension, the process of becoming independent – matters; secondly, we consider the options that may be open to the Scottish Government to secure a lawful referendum.

Why Does Legality Matter?

A state may become independent in one of two ways: either with the consent or at least acquiescence of the parent state, in accordance with its domestic constitutional requirements, or via a unilateral declaration of independence (UDI). Although the International Court of Justice recognised in its 2010 Kosovo Reference that UDI is not contrary to international law, it is a less certain and less satisfactory route to independence. This is because achieving effective independence is a matter of securing recognition by other sovereign states, including the parent state, and this, as the ICJ pointed out, is essentially a political rather than a legal matter. In effect, international recognition is much more likely to be forthcoming if the independence process is perceived to have been legitimate. As Scotland’s Right to Choose clearly acknowledges (p 20),

When they make a decision about their future, the people of Scotland must do so in the knowledge that their decision will be heard and respected and given effect to: not just by the government in Scotland, but also by the UK Government, by the European Union and by the international community.

For a referendum to have this legitimacy, it must have the confidence of all of those that it would effect (sic). This means not just the UK Government acknowledging and respecting the Scottish Government’s mandate, but the Scottish Government and UK Government seeking to agree the proper lawful basis for the referendum to take place.

As a matter of UK constitutional law, Scotland can only become independent with the agreement of the UK Parliament – whether that agreement is explicit and direct, via specific legislation granting independence; indirect, via a general transfer of competence to secure independence to Holyrood; or implicit, if the authority to seek independence can already be found within the terms of the Scotland Act 1998. As a matter of law, a referendum is not a required part of the process of becoming independent. However, it is at least arguable that, in a conventional sense, it is a constitutional requirement, given the precedent of the 2014 independence referendum, the provisions for a border poll on Irish reunification in the Northern Ireland Act 1998, and the statutory referendum ‘lock’ against unilateral abolition of the Scottish Government and Scottish Parliament by the UK Parliament in the Scotland Act 2016. The House of Lords Constitution Committee in its 2010 report on Referendums in the United Kingdom (para 94) also took the view that it was at least appropriate for a referendum to be held on questions of secession by any of the nations of the UK from the Union.

If a second independence referendum is to take place and be effective as a means of achieving independence it is therefore crucial that it be conducted on a proper legal footing – that is, that the rules it sets out providing for the organisation of a poll and regulating the conduct of the referendum campaign are legally valid and hence binding on those to whom they apply. This is a separate – and a more important – issue to the legal effect of the referendum result. The 2014 referendum was advisory only – it did not legally bind the UK or Scottish Government to give effect to a vote for independence – but it was legally valid because it was conducted on the basis of legislation enacted by Holyrood after its competence to enact such legislation had been confirmed by the section 30 Order (the Scottish Independence Referendum Act 2013 and the Scottish Independence Referendum (Franchise) Act 2013 – both of which are now spent). Attempting to proceed with a referendum without such a legislative underpinning would be a non-starter, given that it would depend upon the co-operation of Scotland’s 32 local authorities in organising the vote (none of which is under majority SNP control), and would almost certainly be boycotted by unionists. 

Referendums (Scotland) Bill completed its passage through the Scottish Parliament on the same day as Scotland’s Right to Choose was published. This provides a general legal framework for referendums within devolved competence, similar to, but in some respects going beyond, the Political Parties, Elections and Referendums Act 2000 (which only applies to referendums authorised by Westminster). However, in order to be applied to any particular referendum, further specific authorising legislation is required.

Although it is frequently asserted that a referendum on independence falls outwith devolved competence (as part of the reservation to Westminster of “the Union of the Kingdoms of Scotland and England”, Scotland Act 1998, Schedule 5, Part 1, para 1(b)), that issue has never been conclusively settled. Nevertheless, any attempt to legislate for a referendum without a further explicit transfer of power is certain to be challenged in the courts; could cause significant difficulties within the Scottish Government, possibly including resignation of the Scottish Law Officers; and might also provoke retaliatory legislation from Westminster to make clear that such legislation is not within Holyrood’s competence, similar to the fate of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. Moreover, even if such a Bill were to survive, a unilateral approach to authorising a second referendum might again lead to a unionist boycott and could not be certain of co-operation from the UK Government in implementing a vote for independence.

Securing a Lawful Referendum

Unpalatable as it may be to some nationalists that the exercise of Scottish self-determination depends on Westminster’s co-operation, it is hard to avoid the conclusion that this is necessary. What, then, if anything, might be done to secure that co-operation?

It has been suggested that, should the UK Government refuse to accede to the request for a transfer of legislative competence, a legal challenge might follow – and indeed a crowdfunder has already been launched with such litigation in mind. It is, however, extremely unlikely that such a challenge would be successful, since there is no duty to make a section 30 Order, still less to introduce primary legislation. The crowdfunder makes vague reference to the case being brought on the basis of the right of the Scottish people to self-determination. But it is at least implicit in the Scottish Government’s request for statutory recognition of this principle that it does not currently form part of UK or Scottish constitutional law – even if it has plenty of endorsement in constitutional practice.

This contrasts with Northern Ireland, where the “principle of consent” is explicitly recognised in the Good Friday Agreement, and given statutory expression in section 1 of the Northern Ireland Act 1998. Similarly, while international law does recognise a right of national minorities to self-determination which may, in some circumstances, include a right to secede from the parent state, the Supreme Court of Canada concluded in its Quebec Secession Reference that this does not apply in the case of national minorities such as Quebec and also Scotland which already enjoy a high degree of internal autonomy and political representation.

Similarly, the Scottish Government’s mandate to hold a referendum – though politically important – seems legally irrelevant. The doctrine of the mandate plays, at best, a marginal role in UK constitutional law and practice, and in any case what constitutes a mandate is highly ambiguous: how clear does a manifesto promise have to be; is a majority of seats or of votes required (and can these be aggregated from more than one party); and which elections are relevant – to the UK Parliament, which holds the legal competence to dissolve the Union, or the Scottish Parliament, from which the Scottish Government’s authority derives? Other, more standard grounds of judicial review – legitimate expectations based on the precedent of the Edinburgh Agreement, irrationality, or failure by the UK Government to give adequate reasons for the rejection of any request – also seem likely to fail.

Again, this contrasts with the position in Northern Ireland, where it was recently held (In Re McCord at [20]) that, in relation to the Secretary of State’s duty to hold a border poll under section 1 and Schedule 1 of the Northern Ireland Act 1998, she must “honestly reflect” on whether the statutory conditions (that it is likely that a majority would vote for Irish reunification) are met.

In light of these difficulties, another option that has been proposed by some in the SNP ranks is to bypass a second referendum altogether. This so-called ‘Plan B’ urges the Scottish Government to take the return of a pro-independence majority to Holyrood in 2021 as a mandate directly to enter into independence negotiations with the UK Government. For a number of reasons, this is unlikely to succeed. First, the Scottish Government has rejected this approach in Scotland’s Right to Choose, whilst the SNP leadership has also done so in the defeat of a motion to debate this alternative path at the 2019 party conference. Second, the pursuit of independence via this route fails to avoid the power dynamics behind the referendum dilemma. Any such approach would require the UK Government willingly to join those negotiations, something that seems unlikely without clear and unambiguous popular endorsement. Third, in the absence of a mutually agreed and regulated process of participation robust enough to cultivate losers’ consent, this approach is highly unlikely to be “accepted as legitimate in Scotland, the UK as a whole, and by the international community” (p 1).

So much for what the Scottish Government cannot do, or ought not to do. What can it do proactively to advance its position? Strategically, it is likely that the Scottish Government has always anticipated that the UK Government will reject its call for a referendum in 2020. Instead, there seems to be an attempt to frame any such rejection – and the democratic case more broadly – as the central issue of the 2021 election to the Scottish Parliament. Whilst, as a matter of law, the UK Government might continue to withstand the pressure of a renewed pro-independence majority at Holyrood, there have been signs even in unexpected places – notably from within the UK Government itself as well as from within Scottish Labour – that the legitimacy of such a result would be difficult to resist. Tactically, the SNP might rely on its Westminster membership to maintain political momentum towards – and to finesse the legal form of – a referendum. It could do so with the introduction of a Private Members’ Bill in the form set out in Annex B. Such a Bill would almost certainly fail to be passed. However, and as advocates for an EU referendum discovered prior to the UK Government’s introduction of the EU Referendum Bill in 2015, these Bills can usefully be deployed both to give life to – and to stress test – proposed legislation; to signal action to an impatient audience; as well as to emphasise the sites of political obstruction when the Bill falls. That cohort might also use the advantages of being the third largest party at Westminster – including increased opportunities to make use of opposition time or to ask questions of the Prime Minister at PMQs – to provoke a response from the UK Government. At Holyrood, the SNP – working with the assistance of Greens and other parties opposed to Brexit – might see the legislative consent mechanism as one way to re-state the argument from democratic deficit, as it has done this week when the Scottish Parliament refused legislative consent in relation to the European Union (Withdrawal Agreement) Bill 2019-20.

Political pressure might also emerge outside of these formal political institutions – from public protest or from civic initiatives such as the 1989 Claim of Right or the Scottish Constitutional Convention which preceded the formal act of devolution. Indeed, on the same day that the First Minister announced her government’s intention to pursue a referendum by 2021 she announced also the establishment of a Citizens’ Assembly for Scotland that would examine the sort of country, independent or otherwise, that Scotland wants to build.

Conclusion

Whether there is a second referendum – and if so, on what terms – is a political question that will be resolved in the political arena. There are no legal short cuts through that space. However, just as there is no legal right to insist upon Scotland’s independence or its competence to hold a referendum, nor is there – contrary, for example, to the Catalonian experience – any legal obstacle to independence if the political argument can be won. It is not only in this passive sense that law matters. A negotiated approach to establish a sound legal footing is likely to come at a cost, be that the insertion of conditions by the UK Government or the passage of time as agreement is sought and concluded. However, as Scotland’s Right to Choose makes clear, a referendum that has a clear legal basis, agreed to between governments, that is regulated by law and consistent with democratic and rule of law values is the surest – perhaps the only – way to deliver a result that is fair, decisive, and accepted as legitimate at home and abroad.


Chris McCorkindale is a Senior Lecturer in Public Law at University of Strathclyde 
Aileen McHarg is a Professor of Public Law and Human Rights at University of Durham



A Second Scottish Independence Referendum? 
 

Boris Johnson’s refusal of Scottish First Minister Nicola Sturgeon’s request for permission to hold a second independence referendum this year comes as no surprise. The Conservatives are buoyed by their election victory in England and Wales and focused on Brexit. It would, in any case have been logistically impossible to complete a referendum vote before the end of 2020. The argument should, rather, be seen as part of the manoeuvring leading up to the Scottish parliamentary elections of May 2021. It also serves to hold the line between the more prudent elements in the SNP, who would like to wait until a clear majority for independence has been established, and those who want to press the pace now.

One feature of the Scottish independence debate is that, in contrast to almost all other cases, the UK Government does not deny that the Scots have a right to self-determination.  Margaret Thatcher and John Major both made that explicit while the Labour Party signed up the Claim of Right which stated the principle in the 1980s. Instead the unionist parties have always argued (with the exception of the Edinburgh Agreement of 2012) that now is not the time. Following the referendum of 2014, unionism had an additional argument, that Scotland had already exercised the right. Some unionist politicians have squared their support for the Claim of Right with opposition to an independence referendum by saying that the devolution referendum of 1997 met the test, although the Scotland Act of 1999 made clear that Westminster remained sovereign. This raises the question of what the right time is, and under what circumstances Scotland can exercise its self-determination rights.

On the nationalist side there are two arguments. The first is that it is up to Scotland via its Parliament to decide when to exercise its right. The second is that, since the referendum of 2014 there has been a material change of circumstances in that Scotland is being taken out of the EU against its majority Remain vote. In the last Scottish elections, the SNP had reserved the right to demand another referendum if that happened.

There is no law or constitutional provision governing these matters. One might argue that, following the precedent of the two EU referendums and the Scottish independence referendum, a government gaining a parliamentary majority has the right to put such questions to the people. The electors can always vote No or not re-elect governments that give them unwanted referendums. This has not yet, however, attained even the status of a constitutional convention.

There has been speculation that, deprived of a legal and agreed referendum, the Scottish Government could stage one unilaterally. While the constitution and the union are clearly beyond the competence of the Scottish Parliament, it might be that a strictly advisory referendum could be legal. Even if that survived court challenges, however, it could be a meaningless exercise as the unionist parties could simply boycott the vote. This is what happened in Catalonia, where more than 90 per cent of those who voted supported independence but turnout was less than half the electorate. It is highly unlikely that the UK Government or police would try physically to stop people voting, as the Spanish authorities did, but ignoring the event would actually be more effective.

As usually happens in UK constitutional arguments, this issue will be decided politically. One political arena is in Scotland, where the Conservatives will campaign, as they have since 2014, on refusing a second independence referendum, while the SNP will seek a mandate in favour. Labour is at present divided on the issue and seeking to revive ‘third way’ ideas about federalism or devolution-max.

The other political arena is in England. The UK differs from Spain and other plurinational states in that the majority nation is not particularly hostile to the self-governing aspirations of the smaller ones. Lord Ashcroft’s 2019 survey shows that two fifths English voters think that it is up to the Scots whether they want to become independent.The British Social Attitudes survey has regularly shown that a fifth of them actually want Scotland to be independent. In a future argument, English Remain voters might sympathise with Scottish independence aspirations, while Leavers could resent extra attention and money going north.

No politician wants to be wants to be the last Prime Minister of the United Kingdom and there will be strong resistance to another referendum. Support for independence in Scotland has been running a little below fifty per cent, well under the level that would constitute an overwhelming demand. If the SNP can shift the argument away from independence to the ‘right to decide’, as happened in the Basque Country and Catalonia, that might gain more support. History shows that, when Scotland is governed for a long time by a UK party for which it did not vote, support for self-government increases. This is an issue that will not go away but none of the parties can be sure that their current strategies will work.


Michael Keating is Professor of Politics at University of Aberdeen and Director of the Centre on Constitutional Change 

 


When and if to Choose a Second Time 
 

After the launch of the Scottish National Party's latest post-Brexit campaign for independence, it is be worth looking again at the Scottish government's document on whether there should be another independence referendum. It deserves more attention than it has received,  as it raises some contentious points which deserve to be considered in detail, and ignores one fundamental question: consent. 

That the road to a legal referendum is via Westminster is, as McHarg and McCorkindale say, generally accepted.

According to Curtice, the SNP argument of a political ‘mandate’ for a 2020 referendum from recent election results is more threadbare than they claim.  Nevertheless, in the absence of any constitutional rules about when to hold a referendum, what are we to make of the document’s arguments justifying another one?

The immediate politics

The SNP did not expect the new UK government to agree a referendum. Quite the opposite. Arguing for a referendum is a proxy for arguing for independence. It’s possibly an easier sell: more people might be persuaded that ‘Scotland should have the right to choose’ than that it should choose independence: what is forbidden becomes more attractive.

It is also a useful campaigning focus for Yes enthusiasts, just as the UK government’s rejection reassures No voters.  

The underlying issues

But there are arguments of principle, about when, if ever, a referendum should be repeated.  In making their case, the Scottish government don the clothes of their opponents. The UK is described as a voluntary, multinational union, which Scotland can if it wishes choose to leave.  Reference is made to the 1989 Claim of Right (not signed by the SNP, who now want to have another one) which asserted a form of popular sovereignty - that the Scottish people could choose the form of government best suited to them; to the view of different UK governments that Scotland could not be held irrevocably in the UK against the wishes of its population; and to the Cameron government's agreeing to a referendum after the 2011 election.  

They then go on to reprise the SNP’s post 2014 position that it could be repeated if there was a ‘material change of circumstances’, or if there was a substantial shift in Scottish opinion, and argue that Brexit and the subsequent decisions of the UK government constitute a material change in circumstances. They conclude that the Scottish Parliament should therefore be given an unconstrained legislative power to hold an independence referendum at a time of its own choosing.  It is suggested that no Scottish government would use this power irresponsibly. It seems clear however that given the legal power the SNP would hold a referendum now.

The conclusion is a big leap from the premises of the argument. But if the UK union is voluntary is there a position between a blanket denial of a referendum and a blank cheque for nationalists to hold one whenever (and as often as) tactical opportunity presents?

2014 offers surprisingly little help. The Scottish government argue simply that since a pro-independence majority in Holyrood was enough then, it should be enough in future. But the case for repeating a referendum is not the same as for holding it the first time.  2014 was a mixture of opportunity and opportunism. The opportunity arose from 2011’s unexpected SNP Holyrood majority; the opportunism was in part David Cameron’s.

The two governments agreed to ‘respect’ the result, in the event a solid if not overwhelming No victory. For many enthusiasts in the Yes movement, however, buoyed up by getting a vote share of 45%, ‘respect’ meant nothing more than simply acknowledging the immediate consequences of the outcome before demanding ‘indyref2’. But for others, on the majority side, it meant that a painful process would not be repeated.  

‘Respecting’ a result can reasonably be argued to include a presumption against repeating the question at any time of one side’s choosing. The question is perhaps better formulated as when and in what, if any, circumstances could such a presumption against a rerun be rebutted?

Once in a generation?

The White Paper Scotland’s Future, on which the referendum was based, called the referendum a ‘once in a generation’ event (Nicola Sturgeon and Alex Salmond also used ‘once in a lifetime’). Maybe this was said to encourage voters to take the plunge, but it certainly reinforces the presumption against early repetition. There is a simple, appealing logic to the argument.  Each generation of Scots can have the opportunity to review, if they wish, their nation’s place in the UK. This generation made its choice in 2014, in that knowledge, the next opportunity arrives in another 30 years or so.

The SNP’s argument

Afterwards, in their 2016 Holyrood manifesto, the SNP posited that a ‘material change of circumstances’ (Brexit - no other example has been offered) or a change in Scottish opinion would justify another referendum.  So a big event with no effect on Scottish opinion could nevertheless trigger a referendum. That is certainly not persuasive.  A change with no significant effect on Scottish opinion cannot be material for this purpose, however important  in its own terms. ‘Material change of circumstances’ of itself is therefore a red herring.

In 2016, the First Minister said that the change in opinion would have to be big, say to 60% support; Scottish opinion has shifted somewhat but remains finely balanced, despite Brexit. While a rerun might be arguable if independence became the ‘settled will’ of the Scottish people, a small majority which might be temporary is unlikely to persuade unionists or the UK government to reverse the presumption against a rerun.

Nor should it, as there are some important asymmetries here. A decision to remain in the UK and a decision to leave have profoundly different consequences, not just the status quo versus disruptive change, but an outcome which leaves future change on the table, versus one which would in practice be very hard to reverse. Doing so on the basis of an evanescent majority could prove disastrous for a new country.  

A second asymmetry was the experience of voters. For many of the 45% of Yes voters, 2014 was a very positive experience; they felt enthused and empowered. Many No voters had quite the opposite experience; they felt fearful and unable to speak out.  It is clear that many are deeply opposed to another referendum and do not think it legitimate to hold one. These asymmetries are relevant to their consent to the process and its outcome, especially if that were independence.  

Lessons from Brexit

There are some obvious lessons from the EU referendum:

  1. Referendums are a poor way of deciding highly contested existential questions.  When a country is split down the middle, a binary referendum does not resolve the issue. The Brexit result paralysed the UK’s governmental system for years, and its aftermath has been even more divisive than the narrow vote itself.  A narrowly contested referendum leaves around half the population very dissatisfied, and the absence of losers’ consent on Brexit has been deeply divisive for the UK. For this kind of irreversible, existential question referendums are a good way to confirm a decision the people have already substantially made, but not one so finely balanced that they are making it during a campaign, with all its distortions and oversimplifications. 
  2. It really does help to know what the options on the ballot paper mean. The Cameron Government offered the choice of leaving the EU, without knowing what it entailed. We leave three and a half years later, still not knowing. This uncertainty has profound effects on the putative terms of independence, which depend critically on the UK-EU relationship. "What sort of border there will be?", and "what tariff, customs or regulatory barriers will be in place there?", depend on UK and EU decisions. There are also major uncertainties on other issues (notably currency, fiscal prospects, potential EU membership etc). Similarly, the UK’s internal arrangements, including devolution, will change as a result of leaving the EU, but exactly how is not yet clear.

And does the rest of the UK have any say at all in this?

Not according to the Scottish government. Not only can Scotland ultimately decide to leave the UK, but a pro-independence Scottish Parliament can decide when to put the question. Leaving aside the reality that the legal power lies with the UK Parliament, the inhabitants of the rest of the UK do have a legitimate interest in stability. A UK government cannot refuse a referendum forever if there is real demand for it, but given that there has already been one referendum, can reasonably set the bar high for early repetition. And since the Scottish Government’s policy appears to be focused only on the demands of independence supporters, a UK government might also legitimately have to regard the concerns of those opposed to a referendum, and are uncertain and fearful of independence.

Consent

Scottish independence would require profound economic and social changes, a concerted national effort and a willingness to accept the inevitable disruption. Losers’ consent to a referendum outcome would in those circumstances be essential. In 2014, the UK government consciously addressed the question of losers’ consent, by giving the Scottish Government almost complete control over holding the vote. It would however be quite possible under the Scottish Government proposal for a Holyrood majority elected on a minority of the popular vote to hold a referendum in the hope of running a successful enough campaign to get just over 50%. But roughly half the population would find a repeated referendum not just unwelcome or disturbing but quite possibly illegitimate; they could then be taken out of the UK 'against their will'. The Scottish government’s paper does not consider whether their consent to that outcome would matter.

Conclusion

In arguing for Holyrood to have the power to hold another referendum at any time of its choosing the Scottish government are simply campaigning for independence. They knew the proposition could not be accepted. This is more than just the politics of the moment. No responsible UK government could agree that every time there was a pro-independence majority at Holyrood, there could be another referendum: they would be abrogating any say over the stability of the UK.

The ‘material change of circumstances’ argument is a red herring, a pretext rather than a reason. Material uncertainties about independence, notably those arising from Brexit, are however a real problem for any referendum, certainly on the SNP’s preferred timetable. Voters could not know what they were voting on until those are much clearer than now.

Most important, however, is the issue of losers’ consent, which the Scottish government ignore. No responsible government (in Edinburgh or London) could support another referendum ‘within a generation’ unless there was sustained assent in Scotland that to hold it was legitimate. Otherwise no independence result would gain acceptance. That argument ought to be persuasive for a Scottish government seeking a successful transition to independence.  There is no requirement for a ‘supermajority’ of any sort for even the most radical constitutional change in the UK, but a majority of 50%+1, with losers contesting the legitimacy of the referendum, would be a perilous foundation for a new state.

The fundamental issue here is not the occasion or pretext for another referendum. With the country split down the middle, a narrow referendum result will not settle the matter. Only an outcome which secured the assent of a substantial majority of the population would do that.  The Scottish government's arguments would likely lead to a referendum opposed by a substantial proportion of the population. So would the result (either way) be. Perhaps government effort (in both Edinburgh and London) could better be devoted to finding a constitutional solution most of the population could live with and round which a divided country might unite.


Jim Gallagher is a Honorary Professor at the University of St Andrews 

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