The Long Game of Scotland’s Independence Referendum: 2020 and Beyond

Gerry Hassan

Sunday National, December 29th 2019

Scotland is on the move. The First Minister Nicola Sturgeon has requested that the Scottish Parliament be given the legal powers from Westminster to hold a future independence referendum, and has written to Boris Johnson asking him to enter into serious negotiations.

The case for a second indyref is based on Scotland voting to remain in the UK, and being told that this was the only way for Scotland to remain in the EU. In 2016, Scotland voted 62:38 to remain in the EU, only be taken out by the UK-wide 52:48 vote without any real recognition of Scotland’s democratic wishes. Consecutive elections at Holyrood and Westminster have given the SNP and pro-independence forces parliamentary majorities culminating in the SNP triumph in the 2019 election.

The Scottish Government wants to hold an indyref before the end of 2020 and to do this by an agreed legal basis via a Section 30 order – the part of the Scotland Act 1998 which allows the Scottish Parliament to pass laws in reserved matters such as constitutional matters – and which needs Westminster’s agreement. This was the framework of the 2014 vote.

However in today’s environment Boris Johnson and the UK Government have said they will not agree to such a request that leaves the question – what will happen when, as is likely, this occurs?

The Tories argue that independence was hardly mentioned in the SNP manifesto, nor on the ‘Stop Brexit’ battle bus. Murdo Fraser dared to argue that a 45% SNP mandate was no kind of democratic endorsement, ignoring that Boris Johnson won his mandate on a lower vote of 43.6%.

The Tory position does seem a holding one for now and not clearly though out in making the case for the union by denying a democratic vote. Similarly, it could be argued that the SNP and independence gain from being denied by Westminster the right to hold a vote.

We know the SNP will not hold an unofficial referendum. This has been much talked about but carries risks. Holding an unofficial vote after a legally recognised contest in 2014 doesn’t make any sense. It would in all likelihood be boycotted by pro-union forces. And there is no case for declaring UDI; that does not follow due process and would struggle to gain international recognition such as applying for EU membership.

This leaves the Scottish Government the option of judicial review at the Court of Session in Edinburgh and potentially the Supreme Court. But while this would be dramatic and possibly defining more than likely the pro-independence case would be lost.

Where does this leave the Scottish Government and independence cause? Prof. Aileen McHarg of Durham University, an expert on constitutional law, states that: ‘The legal options available to the Scottish Government are very limited. Although they present a powerful constitutional case for the recognition of Scottish self-determination, this is very unlikely to translate into any sort of legal duty on the UK Government to transfer the powers necessary to organise an independence referendum.’

Prof. Matt Qvotrup, an international expert on referendums, looks at the political consequences of Scotland being denied a vote and suggests that it would lead to: ‘Anger, and an increase in support for SNP, which will be good in the next Holyrood elections. They need a boost after over a decade in office.’ He also offers some sage advice: ‘There is no guarantee that indyRef2 would be won. Very few governments win referendums after their first term in office.’

If Scotland does not have an independence vote next year, the political debate will come down to the clash of competing mandates and different ideas of legitimacy between the Scottish and UK Governments. This could become for a period one of constitutional and political gridlock – with Prof. James Mitchell of Edinburgh University writing that this could lead to: ‘Grandstanding and megaphone diplomacy in which neither side is willing to compromise, trapping an existing increasingly disgruntled Scotland inside an unreformed UK.’

If there is not an indyref in 2020, the struggle moves into next year’s Scottish Parliament elections and puts the issue of who speaks for Scotland and the right to decide our own future centrestage. This could potentially work for the SNP, making the election about the issue of democracy and self-government, with unionists having to make the argument that they are not against these principles – only Scotland’s right to conduct its own indyref.

This approach has the positive benefits that it provides an uplifting clarion call for the SNP after what would be fourteen years in office. This brings with it a record as incumbents with which it is relatively easy for opponents to make political capital. Hence, the calculations of the Sturgeon leadership must be that Brexit, Boris Johnson and a Westminster veto together have the prospect of counteracting the incumbency effect, but it is still a risk.

Thinking of 2021 as the democracy election – in the way that the UK election was a Brexit contest – has to involve a number of fail-safes. First, the Scottish Parliament electoral system was designed to ensure as much as possible that parties don’t win a majority of seats without a majority of votes – although this isn’t foolproof as the SNP showed in 2011. Thus, it is probable that the SNP without a majority of votes won’t win a majority of seats.

Second, it is not enough to aim for a pro-independence parliamentary majority – as we have one now which the Tories are ignoring. What it needs is a popular mandate, legitimacy and plan.

One option is a minimal common programme of the pro-democratic forces – which would compromise the SNP and Greens. The two parties could draw up together an agreed form of words on the criteria for indyref2 – putting it in their respective manifestos. The rationale of this would be that if the SNP and Greens won an overall majority there could be no argument by Westminster that independence lacks a mandate because the SNP had not won an overall majority.

This stance works on two levels. It does not preclude the SNP campaigning for an overall majority, but if they don’t it provides the fallback of a SNP-Green pact.

Some independence supporters will say what do we do if Westminster continually says no, acts like Spain towards Catalonia, and denies us a vote? This is where people need calm heads and an awareness of the stakes. The British state is not Spain; the latter has a written constitution backed by a nationwide referendum in 1978 which affirms ‘the indissoluble unity of the Spanish nation.’

The UK political system has huge problems and an inability to reform but has shown an adaptiveness when pressurised – including towards Scotland. Hence, we got a Parliament at the second attempt when we voted emphatically for it in 1997 and an indyref in 2014 when there was a mandate for it. The UK state knows that trying to resist popular pressure for an independence vote can only be done for so long, and that the longer they keep to a hard line while there is a clear demand in Scotland the more they are undermining and hollowing out the argument for the union.

Tory politicians know this and have said that they cannot indefinitely resist self-government. Andrew Mitchell, Tory MP and former minister, said that it would be ‘extremely difficult’ for Boris Johnson to continue to ‘resist the strong argument’ for people to have another vote, and that the current Tory stand can only realistically continue ‘until the end of the Brexit process’.

The agenda of Boris Johnson towards Scotland has to be factored into these equations. He has already indicated that he plans to ‘love bomb’ Scotland but we have heard such promises before particularly in 2014. It is possible that the Tories will attempt some big, brash gestures which go beyond the Barnett consequentials to underline the case for the union. But nothing short of the wholesale democratisation of the UK could offer Scotland the reassurance that future UK governments won’t act like the ‘elective dictatorship’ they have in the past.

There is much more to this than economics which has often reduced the argument for the union to a transactional one of monies, deficits and fiscal transfers. This can end in the hyperbole of David Smith, economics editor of the ‘Sunday Times’ writing recently: ‘An independent Scotland is not economically viable’ which is palpable nonsense.

Then there is the Brexit question and its ultimate consequences and costs that many, but not all, think will aid independence. A note of caution is provided by Nigel Smith, who organised the 1997 pro-devolution referendum campaign, when he says that: ‘Three years of chaos and clusterfuck in London has barely caused an uptick in independence that suggests affinity for the union is deeper than many thought’, which he believes informs a majority of Scottish public opinion.

Similarly, the argument for independence has to listen to the Scotland still unconvinced, including Nicola Sturgeon not over-interpreting the votes ‘lent’ to the SNP on polling days as being true believers in the cause. Social policy expert Jim McCormick thinks that:‘The SNP needs to think carefully about tactics and not overplay their hand early. Much of their support is borrowed.’ There is he assesses much ‘disappointment among wavering Yes/No voters about the state of British politics, not just anger about the constitutional question. Understanding the concerns of these voters will be key to even getting a hearing for indyref2, let alone the outcome.’

Supporting evidence for this perspective comes from the pro-independence campaigner ‘Southsidegrrrl’ who said that: ‘There is no such thing as No voters only people who voted No.’ Such an insight entails a radical reappraisal of how independence is presented – one which needs a detailed understanding of how it came short last time, with Nigel Smith observing that ‘there is a lack of understanding and analysis of 2014 by the SNP. If they don’t fully know why they lost, how do they make a new case.’

The SNP and Nicola Sturgeon would like an indyref next year but assess that the longer they play it and the more emphatic is Westminster’s refusal the better for independence. At the same time independence has to get serious and start thinking about the multiple ways in which it presents itself and the different groups of voters that have to be reaffirmed, reassured and won over.

The future independence offer has to have a practical dimension on the detail of the currency, finances and economics, but more important is the existential dimension which speaks to who we are and what we aspire to be and which, while celebrating Scottish distinctiveness, is comfortable with multiple identities including the endurance of Britishness.

In this, independence has to come to terms with having a philosophical intelligence – being explicit about the collective values which underpin our public life – and recognising one of the most critical factors in the 2014 vote which will shape the future – the psychological dimensions of this debate – which touch on hopes, fears and how people see themselves.

Scotland has changed dramatically over the past few decades in what could be called our own long revolution and the future battle is one which has to be seen in that context – as an expression of that longer game.