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Constitutional Groundhog Day

Long before Alex Salmond’s new party launched itself into the contest, the forthcoming Scottish Parliament election was going to be dominated by one issue, and one issue only: the constitutional question.  This is not a surprise, from two perspectives. 

First, the question of Scotland’s constitutional status remains a live one.  The referendum in 2014 produced a decisive result at the time, but events subsequent to the referendum quickly placed the long-term resonance of that outcome in doubt.  Several factors have played a part:  The significant (fivefold) rise in SNP membership in the wake of the referendum defeat for independence.  The SNP’s dominant performance in the 2015 UK election in which they won 56 of Scotland’s 59 seats and became the UK’s third largest party.  The European Union referendum in 2016, in which Scotland convincingly voted to remain within the EU but a narrow majority UK-wide supported leaving.  And, over the last year, the Covid-19 pandemic.  All have contributed to how people view themselves, their place in society, and Scotland’s place in the UK.  It’s an issue people discuss in taxis, in bars, and in hairdressers – or rather, they did, when we could go to those places.

Second, from a political strategy perspective, it’s good for business for parties.  Well, for two parties in particular.  Obviously for the SNP, whose raison d’être is Scottish independence, it is good that people keep talking about the issue – it is much easier to keep the conversation going when you have a receptive audience.  But it’s also good for the Scottish Conservatives.  Conservatism, in Scotland, as anyone over the voting age will recall, was not well received post-Thatcher, and in Labour’s 1997 landslide victory, the Conservatives lost all of their Scottish representation.  In the 1999 Scottish Parliament election that record continued, and they did not win a single constituency then either, relying on the regional list, through a PR system they had opposed, for all 18 of their original MSPs.  In recent years, the party’s revival has not really been down to their conservatism so much as their Unionism.  In every election – at every level, from European to local – since the referendum, the Conservatives have campaigned as ardent defenders of the Union, the last bastion against independence when all others have deserted their posts.  And it has worked – in 2016, under Ruth Davidson, they became the largest opposition party in the Scottish Parliament.

The problem for the Scottish Conservatives, in this election at least, is that it has worked a little too well in previous elections.  In the 2019 UK election, despite the Scottish party losing 7 seats, Boris Johnson’s UK Conservatives turned their minority government into a thumping great majority, giving him a much more powerful platform as Prime Minister and the ability to stand up more rigorously to any challenges to his authority.  One challenge that was promptly dismissed was the Scottish Government – led by Nicola Sturgeon and the SNP – requesting the power, under a Section 30 order, to hold a second independence referendum.  The Prime Minister – and the Secretary of State for Scotland – subsequently made clear that they considered the question closed for ‘a generation’, a position that has been unequivocally endorsed by the Scottish Conservatives.

The problem this presents for the party, however, is an electoral one.  Conservatism itself remains a political ideology with limited support in Scotland – however, the party’s Unionism has a rock-solid core of voters available to be tapped into.  But since the Prime Minister has already ruled out a second independence referendum, doesn’t this take the issue away from them in the election campaign?

Apparently not, for in the first week of the election campaign, Scottish leader Douglas Ross has already been campaigning on this very issue: the party’s campaign launched with the slogan ‘End division, no referendum, rebuild Scotland’; initial campaign spots had placards announcing plans to ‘stop an SNP majority and stop indyref2’; and a letter went from Ross to Labour leader Anas Sarwar and Liberal Democrat leader Willie Rennie asking them to work together to defeat the SNP.  In Scotland, the constitution sells.  However, given the Conservative Prime Minister is the only person who could deliver upon the independence referendum – and he has already explicitly ruled it out – one wonders how effective this campaign strategy will be.  ‘Vote for us to ensure our own leader does what he’s already said he’s going to do’ doesn’t quite have the same ring to it.

And yet, campaigning on the other side of the constitutional question is equally questionable.  The Alex Salmond wheeze of a ‘supermajority for independence’ has no more bearing on the Prime Minister’s decision to allow a referendum than voting for the Scottish Conservatives to ‘stop indyref2’.  Neither does a single-party SNP majority.  The Scottish Parliament is an institution that is subordinate to the UK Parliament.  The constitution is not a matter that is devolved to the Scottish Parliament.  In practice, the political make-up of the Scottish Parliament has no bearing on the delivery or not of any issue outwith its competence.  An SNP majority government might, in theory, put more pressure on the UK Government to allow a referendum.  This was the situation in 2014, although, as Daniel Cetrà and I have argued previously, that decision was probably based more on the expected political opportunity for the UK Government and not on any perceived pressure from Scotland.  However, with opinion polls on the constitutional question sitting at near 50-50, the opportunity for political gain does not exist in the same way for the UK Government in 2021.

And so we sit at the precipice of another of Scotland’s political paradoxes:  The SNP don’t want a referendum until polls consistently say they will win it – they saw what happened in Quebec – but when polls say they will win it, there’s no reason the UK Government would ever agree to hold it.  And in campaigning in an election to an institution which has no competence on the issue, the SNP will suggest a majority would provide a mandate for such a referendum, while the Conservatives will ask you to vote for them to stop one, even though the Prime Minister, also a Conservative, has already ruled it out.

The constitution is the only game in town.


Malcolm Harvey is a lecturer in Politics and International Relations at the University of Aberdeen and an Associate Fellow of the Centre on Constitutional Change.