An unsustainable paradox

Since Scotland’s votes were counted a month ago, there has been much debate about whether the results constituted a ‘mandate’ for an independence referendum.

Some debated the significance (or lack of it) of the absence of a single party majority for the Scottish National Party (SNP). Others tried to aggregate the votes of parties into unionist and nationalist blocs (this wholly inconclusive measure showed a wafer-thin majority for unionism in the constituencies and nationalism on the list vote). Others drilled down further: how many SNP voters wanted Nicola Sturgeon as First Minister but no referendum? Conversely, did the Labour vote conceal a substantial pro-independence cohort?

None of these debates really matters in the final analysis. All these exercises achieved was to confirm that Scotland is deeply split on the independence question, something we already knew from opinion polls.

Moreover, the position of the UK government meant that none of these alternative analyses took hold. That’s because their stance before and during the election was that there was to be no referendum whatever the result. There was no threshold for nationalists to meet. There was no ‘mandate’ that was going to be respected. The Prime Minister himself repeated this policy in a Daily Telegraph interview whilst the votes were still being counted.

UK Ministers can therefore hardly claim now that they can refuse a referendum on the basis that there are only 64 SNP MSPs, implying that their position would be different had it been 65. It remains the case that Ministers have yet to arrive at a policy on what triggers they might accept for a future independence referendum. This might be because they don’t want to imply that a single-party majority, or pro-independence parties getting more than 50 per cent in both constituency and list votes would be a mandate they would recognise were it to happen in, say, 2026.  

Clear majority/mandate for #indyref2

Perhaps because the only really important constitutional aspect of the result was expected, not nearly enough attention has been paid to it. That is the clear parliamentary majority for a referendum. That is the only important measure in a parliamentary system. That is not just because of the moral force of the argument, though I have argued elsewhere that, absent clear rules on a referendum trigger, there is a strong case for treating a parliamentary majority elected on a clear manifesto promise for a referendum as a mandate.   

The reason it matters is more prosaic: without a parliamentary majority for an independence referendum, the issue goes away. With a parliamentary majority, the constitutional tussle will commence at some point. No British government will concede a referendum or any other move in the direction of Scottish independence if it doesn’t have to: it will only respond to some sort of request or demand from Holyrood. If there’s no majority, there’s nothing to respond to.

The short history of the Scottish Parliament demonstrates this. With one exception, every SNP manifesto since the creation of the Scottish Parliament in 1999 has included a very clear commitment to an independence referendum. When the party first came to power in 2007, Whitehall briefly pondered if this would mean pressure for a referendum. However, it quickly became clear that there would be no such push because, with just 47 seats and two Green allies, Scottish nationalism was well short of the parliamentary majority of 65 needed for a motion to ask Westminster for a referendum, and/or pass the necessary referendum legislation. That of course changed when, in 2011, the SNP returned 69 MSPs; combined with two Greens and an independent nationalist. This 72-57 majority in the Parliament prompted David Cameron to concede the principle of a vote instantly.

The exception was 2016. Taking place just over a year and a half after the 2014 ‘No’ vote and a few weeks before the Brexit referendum, the SNP’s manifesto said they would only push for a second referendum in the event of a ‘material change of circumstances’. The vagueness of that pledge meant that even with the numbers to pass a motion demanding a referendum, this time with 63 SNP MSPs and six Greens, Theresa May, and subsequently Boris Johnson, found it very easy to swat it away. The lack of purpose with which the SNP and Greens pursued their case after that rejection indicated they thought it better to wait for a much clearer mandate in 2021.

That has now arrived. The 2021 Holyrood Parliament has the same composition as 2011 in terms of pro- and anti-referendum MSPs: 72-57. The composition is different, with 64 SNP MSPs and eight Greens (with one now being subtracted owing to Presiding Officer duties). But the absence of an SNP majority is of zero constitutional significance given the two parties’ manifestos were identical on the referendum question. It is also of zero legislative significance: referendum motions and legislation will pass Holyrood by a comfortable margin. Think of it this way: since the Conservatives returned to power in 2010, they have passed 17 Finance Acts. Only six of those passed with single party majorities: eight required the support of the Liberal Democrats in the Coalition, and three passed with the support of the Democratic Unionists. The legal standing of all the acts is identical.

All that really matters is that the independence movement have the numbers in Parliament (something they didn’t have in 2007-11) based on a clear mandate (which was not the case in 2016). In other words, in practical terms the situation is pretty much a replica of 2011. So, proceedings will be initiated towards a second referendum. The indications are that the Scottish government will proceed slowly, and any major activity at all in 2021 seems unlikely. This reflects both the split in public opinion over independence and an interpretation of the public mood that nothing should move until the pandemic is decisively over.

It’s a-coming

But, at some point within the next few years, Holyrood will pass a motion demanding an Order-in-Council under Section 30 of the Scotland Act 1998, based on the manifestos of the SNP and Green majority. Formally, the UK government does not have to respond to referendum demands until then. Indeed, it could, in theory, ignore a motion from Holyrood which is purely declaratory in law. What it could not ignore, even if it tries to sidestep being an active participant in legal proceedings, is the initiation of legislation in Holyrood to provide for a referendum. Eventually it will have to have a policy response to the Scottish Parliament.

The UK government’s response to the election of a pro-independence majority in Holyrood has been to say that now is not the time for a referendum. It is clear that there is no settled policy beyond this as to when Scotland’s consent for the union might be tested again, and what if any considerations might prompt that. What has changed is that the stonewalling around this ambiguity has become much more disciplined. Before the election, UK Ministers were prone to speculative statements about the length of time that must elapse before a further referendum. The Prime Minister himself implied there would be no further consideration of the issue until 2055. Now, all government representatives say that now is not the time, and then stop taking.

But this is only sustainable for so long. The paradox of the government’s position was exposed in the interview given by the Chancellor of the Duchy of Lancaster, Michael Gove, to Andrew Marr, on the Sunday after the election. Mr Marr asked Mr Gove three sequential questions. First, does Scotland have the right to leave the United Kingdom? Here Mr Gove gave an unambiguous ‘yes’, significant in itself as the Johnson administration has been more reluctant to acknowledge Scotland’s right to self-determination than all other recent British governments.

Given that, asked Mr Marr in his second question, what is the path to achieving independence? Mr Gove answered decisively again: the way to independence is through a lawful referendum.

Given that, asked Mr Marr in his third question, what is the path to that referendum? Mr Gove replied, on script, that now was not the time for such matters.

So, whilst the rhetoric may have softened, the constitutional paradox remains. Scotland can leave if it has a lawful vote to do so, but there is no way of having a lawful vote. For now, anyway. And there is no plan to have a plan. There has been no suggestion, for example, of talks on a Great Britain wide basis (given there are clear(ish) procedures for testing Northern Ireland’s consent for the union), or of any UK government counter-proposals to the Scottish government’s approach beyond ‘not now’. 

This constitutional standoff could, ultimately, go to court. But eventually there will have to be a political resolution. Much of the debate around the legalities miss a crucial point: the aim of the Scottish nationalist movement is not to secure a referendum, it is to secure a smooth passage to an independent Scottish state.

Westminster acquiescence is essential to that objective. A country does not become a member of the international community without the recognition of other states. And other states are not going to recognise an independent Scotland if the UK government does not want them to.  

So, even if the Scottish government were to have its referendum legislation upheld by the Supreme Court in the face of objections (overtly or tacitly supported) by the UK government, however unlikely that seems to many legal experts, that does not mean a binding referendum will take place. The UK government could change the law. Or unionist parties could choose to undermine the credibility of a referendum by asking unionists to boycott it.

Falling on deaf ears

In the event of a nationalist victory and declaration of independence, the UK government could simply refuse to recognise the result and refuse to begin negotiations. Scotland’s protests to the world to recognise its democratic sovereignty would fall on deaf ears. Presidents Biden and Macron would no more recognise Scottish independence than Mr Wilson and Monsieur Clemenceau did Ireland’s declaration of self-rule in 1919: it was only when a treaty was signed with the UK in late 1921 and ratified in 1922 that the Irish Free State became a recognised international entity.

EU membership would be out of the question: Scotland would have the international standing of the Turkish Republic of Northern Cyprus, except without a Turkish style benefactor.

Ultimately, all the legal power to facilitate and, conversely, to refuse Scottish independence remains with the UK government and Parliament. There are two important consequences of this.

First, predictions of extra-constitutional activity from Scottish nationalist leaders are likely to prove wide of the mark. The Scottish nationalist project is based on the premise that the Anglo-Scottish Union is one of consent and not law, and if consent changes, independence will be facilitated. Moving away from that not just jeopardises the support of moderate Scots: it jeopardises the successful delivery of the objective of independence.

Second, this explains why the position of the UK government remains so paradoxical. The UK is genuinely exceptional because it looks upon and talks about itself as a consensual union and permits the peaceful and constitutional pursuit of separation (even enshrining Northern Ireland’s right to join the Republic of Ireland in international law). This is very different to most other countries, democratic or otherwise.

The paradox is that for now at least, the UK government’s position is that there are no circumstances where the right of secession can apply to Scotland. Scotland has the right to become independent but, as Mr Johnson and Mr Gove have both confirmed in the last month, no means of doing so. Therefore, when the Scottish Parliament asks for a referendum, based on the mandate of 2021, and it is denied, the Anglo-Scottish union changes from one of consent to one based on law: the Scottish Parliament has asked for a referendum based on a majority vote on clear manifesto pledges, and Westminster uses legal powers to refuse.

Perceptions of momentum and popular support will matter as to how this constitutional conundrum is resolved. That is why both London and Edinburgh are using their governing status to campaign by proxy. The Scottish government is trying to cement its electoral success in domestic policy and is slowly trying to build a more convincing case for independence than that presented in 2014. The UK government, for its part, is attempting to win hearts and minds in Scotland, though it seems unsure of whether to do this by pursing the ‘Team UK’ approach evident in the Prime Minister’s post-election offer of a summit on Covid recovery, or the more assertive ‘muscular unionism’ of the Internal Market Act. Proponents of the latter will want to stress the need for UK integration and more active UK government in the devolved territories, and can therefore be expected to advocate a harder line on the right to secede from the union.

In its approach to both the referendum question and the wider approach to deciding what sort of union it wishes to save, the UK government has no low-risk options left available. At least it now has time to make up its mind, but not an awful lot of it.

First published by the Constitution Society and reproduced with permission