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Converging Events Force the Constitutional Pace

Published: 12 October 2017
Author: Richard Parry
Richard Parry discusses the impact of three speeches in Florence, Glasgow and Barcelona. 
Carles Puigdemont asked his Parliament on 10 October, ‘if that has been possible in one of the oldest, most constituted and exemplary democracies in the world, as in the United Kingdom, why could it not also be done in Spain?’ ‘That’ is of course in his words ‘a referendum with the date and question agreed between the two sides, in which both sides could campaign and present their arguments, and in which both sides commit to accepting and applying the result through a negotiation which protects their respective interests’ (Catalan Government English text). We now understand why the many Catalans and Basques in the streets of Edinburgh in 2014 seemed more emotionally bound up with the referendum than Scots. But after that poll and Brexit 2016 such a reckless voluntary concession of a referendum by status quo interests is not going to be repeated.    
Legal secession of part of a member state stands alongside article 50 withdrawal as the most difficult of political challenges for the EU. Theresa May’s Florence speech on 22 September was a strange event for those who do not feel themselves within a UK ‘us’ side facing an EU ‘them’. The main negotiating nugget – the acknowledgement that the UK would ‘honour its commitments’ and not leave any member country worse off in the current medium-term EU budget – seems dangerous in May’s own terms as it leaves open three other transfer streams: the termination fee on matters like pensions and net liabilities, the cost of any single market access beyond the end of 2020, and participation fees on specific programmes.  The predominance of ‘shared partnership’ rhetoric in the speech was basically useless, as it strays near to being an argument for UK membership of the EU.
Florence was billed as a Europhiliac contrast to an anticipated less accommodating approach in May’s Conservative conference speech on 4 October, but the ‘coughathon’ in Manchester had remarkably little on Europe. Actions are now speaking louder. The Treasury, not DExEU, issued the White Paper on the new Customs Bill (Cm 9502) on 9 October. Even its ‘contingency scenario’, no deal, relies on EU co-operation to facilitate pre-notification of consignments (para 5.34), presentation of vehicles inland (para 5.39) and exemptions from customs checks for small traders in Northern Ireland (para 5.23). The EU’s counterpart, its Position Paper on Customs related matters needed for an orderly withdrawal of the UK from the Union (20 September) is equally hard-headed in its appraisal of arrangements for goods in movement around the withdrawal date and on the possibility but not guarantee of ‘administrative co-operation procedures’. The atmosphere is now grim, with May’s Florentine offer running into the ground of imprecise engagement with EU positions. 
Meanwhile the Spanish government has offered the world a playbook on how to try to prevent an independence referendum. Could any such techniques be used be used in an ‘illegal’ referendum in Scotland?  First, its illegality would have to be demonstrated by a decision of the UK Supreme Court (to disallow a referendum bill passed by the Scottish Parliament without UK Parliament consent, which would first require the referral of such a bill by the UK government). If the Scottish Government tried to hold it in the face of an adverse ruling, it is hard to see either the means or the will for a Spanish-style hunting down of ballot boxes and voting papers, which in any case – as Daniel Cetrà has explained - did not work and was counter-productive.
Of course, any Scottish IndyRef2 bill is not going to include Catalonian-style provision on automatic moves to UDI. It would be presented as advisory, on the model of the 25 September referendum in Kurdistan. There has been only one UK example of a boycotted referendum, the Northern Ireland border poll in March 1973 (99% voting to stay in the UK on a 59% turnout). Would UK unionist interests dare to let independence pass in this way as Spain did?
In terms of Nicola Sturgeon’s political calculations, the latest official words were her speech to the Parliament on 5 September: ‘we will consider again the issue of a referendum on independence when the terms of Brexit are clear’; and her conference speech in Glasgow on 10 October, ‘people want clarity about Brexit first. We respect that’. If ‘the terms of Brexit’, in the sense of the arrangements that will have to be ratified by EU members before 29 March 2019, turn out to mean de facto EU continuation until 2021, it will be argued by unionist interests that there will be no basis until after that date for an evaluation of Scotland’s post-Brexit future in the UK. In her New Statesman interview of 20 September 2017, Sturgeon seemed more prepared than ever to contemplate the running down of that clock: ‘people are not ready to decide we will do that [IndyRef2], so we have to come back when things are clearer and decide whether we want to do it and in what timescale’. Later attempts at clarification by her staff were even more eloquent about the unguarded nature of this comment. 
Like Theresa May before her election call in April 2017, Sturgeon’s political strategy is on the line. If we rule out an early Holyrood election - unlike Westminster this would not displace the next normal election in May 2021 unless it happened within six months of it - the SNP’s mandate then runs out and both their government and the pro-independence majority in the Parliament are at risk from ‘no to IndyRef 2’ campaigning.  The two criteria on referendum timing are curiously shared by both governments: demand for it demonstrated (in some way) and Brexit completed (in some way). Sturgeon’s recent interventions showed sensitivity to the point that public preparedness to take a decision is a separate matter from what that decision might be. But during 2017 the SNP has lost its grip on the translation of its approach into concrete timing; the unionist side need only rest on sometime, never. Luis Moreno brilliantly tagged the Spanish acronym for UDI as ‘Delayed Unfolding of Independence’; in Scotland it looks closer to a folding-up.   

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