The election may soon be over but a crucial battle has yet to begin. The battle of the mandates will prove no less contentious.
Mandate has two meanings. It can mean a right and authority in the sense that politicians have a right and authority to demand a course of action. But it can also mean a command, as in the sense that elected politicians are mandated to pursue a policy.
Whether a right or a command, a mandate requires a policy to have been clearly and unambiguously articulated before winning consent from the people. This has come to mean explicit reference in a manifesto, augmented by campaign literature, speeches, answers to questions on the stump. Slipping some vague or ambiguous reference into a speech or even a manifesto weakens claims to a mandate.
In 1999, the SNP included an independence referendum as the last item in its list of commitments. Had it won, its mandate to hold a referendum would have been weak. In 2016, it was committed to a referendum ‘if there is clear and sustained evidence that independence has become the preferred option of a majority of the Scottish people – or if there is a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against our will’. This convolution, arguably, lacked the clarity required.
In 2019, Nicola Sturgeon wanted ‘to put Scotland’s future in Scotland’s hands’, a rather coy way of supporting a referendum. In this election, the SNP has gone for the anodyne ‘choice about the future’ though it did refer to a referendum with caveats regarding the timing. But the SNP can thank the Tories for ensuring that a referendum has been at the centre of the election. It would be difficult to deny the importance of another referendum in this election.
Mandate remains complex and contested even when the result is clear. If the SNP wins an overall majority, there remains the question of whether it is within Holyrood’s legal competence to hold a referendum without Westminster’s agreement. A recent effort to get a legal ruling failed on grounds that it was premature as courts do not rule on hypothetical situations.
The legitimacy, as distinct from legality, of a referendum mandate will be determined by politics as well as law. Consent is key. Legitimacy starts to erode when consent clashes with law. The notion that the union cannot be challenged is dangerous and irresponsible.
What is Nicola Sturgeon’s route to a second independence referendum is there’s no Section 30 order? It’s an illegal, wildcat referendum which her own MPs are saying will be held. (Douglas Ross, BBC Scotland leaders’ debate, May 4)
Westminster (or rather, in politically accurate terms, the Johnson Government) is much more likely to concede a referendum, though far from certain, if there is an overall majority for the SNP. The Johnson Government will still cite the need for a Section 30 order allowing for modifications to matters retained at Westminster and may refuse this. Such an Order provided ‘an exception to the reservation of the Constitution’ that allowed the Scottish Parliament to legislate for the 2014 independence referendum.
Refusing a Section 30 Order may play well in the Commons and amongst hardline unionists but it will gain little traction north of the border. It is more likely that support for a referendum, even amongst opponents of independence, will increase if London is perceived to be intransigent. The mandate claim based on an overall majority of SNP MSPs lacks legal bite, but the mandate bark will be loud and repetitive. It will attract considerable attention well beyond the UK, as is already evident in media and diplomatic interest in this election.
I have said consistently all along, sometimes to criticism from people on my own side of the argument, that I would not countenance an illegal referendum, not least because it would not deliver independence…(Nicola Sturgeon, BBC Scotland leaders’ debate, May 4)
If there is both an overall majority of SNP MSPs and an increase in the number of Green MSPs then the pressure would be difficult to resist. The question then becomes more a matter of when rather than whether a referendum is held as well as how to agree referendum rules. The referendum rules could not be determined by one side alone but would require agreement in order to satisfy the need for consent and legitimacy. During the campaign, the SNP has emphasised that a referendum would be held ‘after Covid’ though what this means is unclear. COVID’s eradication? What level of cases? There will assuredly be a significant COVID overhang requiring attention of public bodies well into the future. This leaves room for interpretation – and therefore dispute.
Huffing and puffing
It becomes messier still when we consider other scenarios. What happens if the SNP needs help to achieve an overall majority? This has been the case since 2016. The SNP huffed and puffed and there are only so many times that Nicola Sturgeon can lead her troops to the top of the hill and down again. Two key considerations follow from an overall majority requiring non-SNP MSPs: the total and the composition. Such an overall majority could be constituted in different combinations including SNP, Green, Alba and possibly an other (Andy Wightman in the Highlands and Islands might prove more successful than Alex Salmond in North East Scotland). It could weaken the mandate if the Greens gained but the SNP lost seats though total numbers would likely be more important. It would be painfully awkward for the SNP, or at least the current leadership, if it needed the support of Alba MSPs, though that seems an unlikely scenario.
The precise size of the overall majority may add to the claim but an overall majority for one party, regardless of size, is no mean feat and would be a powerful claim to have a mandate.
We can be sure that opponents will note that the SNP demanded ‘both votes SNP’ and will have quotes ready to confront the SNP with to show that this was the mandate sought. The Tories have been positioning themselves to claim that the list vote (‘party vote’ as they have chosen to call it) is the true measure. But that is as absurd as the claim made by some in the SNP that the ‘first vote’ is for your MSP and the ‘second’ for your government. We can be sure that supporters of a referendum will cite Tory claims that ‘An SNP majority is a guarantee of another independence referendum’. Claims and counter claims will be heard. Campaign rhetoric will have been trawled over in preparation for the battle of the mandates and used in much the same way that the SNP’s ‘once in a generation’ has been after 2014.
As noted earlier, there is another understanding of mandate: mandate as command. And this is the mandate that Sturgeon may find most challenging. If there is a clear majority for an independence referendum, regardless of how it is constituted, there will be those within the SNP and wider movement who will see it as mandating, in the sense of commanding, Sturgeon to hold a referendum immediately.
Managing expectations in a party and movement already deeply and bitterly divided will not be easy. The presence of only a few Alba MSPs, especially with the possibility of other defectors, would make life uncomfortable and mean the First Minister would have to fight on two fronts – battling with the Tories in London and hardliners in Scotland. The battle within the battle becomes one of control of the independence movement and would likely have a major impact on any consequent referendum. But assuming the SNP contingent has increased then she will claim this gives her authority to determine the politics of the mandate.
If the polls have been consistent on anything, it is that the next Parliament will consist of an overall majority supporting a referendum. The absence of clear, agreed rules on what constitutes a mandate for a referendum means that the battle of the mandates will prove at least as contentious as the election itself.
Further reading: A referendum won’t happen, Iain Macwhirter, Herald; Half of UK backs #indyref2, Mure Dickie, FT; The legal issues, Stephen Tierney, Centre on Constitutional Change (2017); Ten key questions, Akash Paun, Institute for Government; What might results mean for #indyref2?, Libby Brooks, The Guardian ;