Richard Parry discusses the latest SNP approach showing new levels of caution about holding an independence referendum without UK consent, and Conservative and Labour responses
On 19 December 2019, the Scottish Government issued Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands, which also had a history lesson in the form of a timeline starting in the 1100s. But, the paper was somewhat selective about history. It did not mention that after 2007 the-then minority government had suggested that holding a referendum on opening negotiations about independence was ‘arguably’ legal without UK consent. It did not recall the interest shown by the then majority SNP after 2011 in a multi-option referendum. And it did not mention the SNP’s disavowal in the 2015 UK general election of any claim to advance independence or a further referendum on the basis of what turned out to be a 49.97% vote share.
The Referendums (Scotland) Bill 2019 expresses the fact that the right to call referendums is not per se reserved in devolution legislation. The right to pass legislation to administer and finance a referendum in a reserved policy area remains legally moot. Both parties would be keen to avoid an adverse Supreme Court verdict on the point. In any case, even a legally sound referendum cannot compel the implementation of a policy unless –as with the 1979 devolution proposals – it takes the form of giving effect to a law already on the statute book which sets out the arrangements that will come into effect. The entire Brexit argument found democratic theory around this point difficult.
The change of tone for the SNP now is to suggest that they are not interested in Catalan-style mandate which any significant political actor condemns as illegitimate:
‘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 EU and by the international community’ (p20).
In other words, they want in advance a commitment to implement by the UK Government.
Meanwhile the 2019 Conservative manifesto text on the issue was not quite so hard line as some of their statements:
‘we are opposed to a second independence referendum and stand with the majority of people in Scotland, who do not want to return to division and uncertainty. Nicola Sturgeon and the SNP promised that the 2014 referendum would be a ‘once in a generation’ vote and the result was decisive. We believe that outcome should be respected’ (p45).
The fateful phrase was used by Sturgeon and Salmond not as any undertaking to give up their cause if they lost – which would be absurd, despite the suggestion in Boris’s letter to Nicola of 19 January that it was a ‘personal promise’ - but as a warning that a Westminster chastened by a close shave would not risk a repeat of David Cameron‘s 2012 offer. In confirming that assumption, Johnson’s letter makes the curious case that the objection is not ‘division and uncertainty’ but continuation of ‘the political stagnation that Scotland has seen for the past decade’.
The SNP strategy is now similar to that of Brexit proponents, focusing not on the issue but on the right to hold a referendum on the issue: ‘we call on the UK Government to enter discussions about the Scottish Government’s mandate for giving the people of Scotland a choice’ (p22). The SNP’s 48 Westminster MPs ‘are elected on an SNP manifesto commitment referencing and reinforcing the Scottish Government’s mandate in respect of an independence referendum’ (p17). This is an awkward elision of the SNP’s stance that votes and seats in Scottish Parliament, not UK Parliament, elections are the ones that count.
At the moment the SNP is cresting on an electoral wave that allows them to push for an independence referendum by the end of 2020, before one becomes effectively time-barred by the impending Holyrood elections of May 2021. An alternative tactic would be to seek to get, under the arrangements of the Scotland Act 1998, the two-thirds majority of all MSPs for an early election in November or December 2020, within six months of the set date and so not disturbing the normal electoral cycle. This seems the only realistic way of getting a quasi-mandate for independence before the end of the year but requires the support of either Conservative or Labour.
Sturgeon’s current political strength also plays the other way – to let her face down party calls for a home-grown referendum and hold out for the gold-plated 2014 variety on whose outcome the SNP would bet the house. In this context, Scottish Labour’s interest in a referendum with a third, federal, option – revealed by party sources but already running into internal trouble – is reminiscent of the SNP’s 2011-12 strategy of an each-way bet that David Cameron forced them to abandon. The problem for the unionist parties is that if they cannot knock out the pro-independence majority in the Scottish Parliament in 2021 they may be forced back to crude Spanish-style political heft as their basis for controlling the issue.