The long game for indyref2 and Scottish sovereignty

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 European Union. 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 Johnson and the UK Government have said they will not agree to such a request, which 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 Johnson won his mandate on a vote of 43.6%.

The Tory position does seem a holding one for now and not clearly thought 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.

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WE know the SNP will not hold an unofficial referendum, which has been much talked about but carries risks. Holding an unofficial vote after a legally recognised contest in 2014 doesn’t make sense. It would in all likelihood be boycotted by pro-Union forces. And there is no case for declaring a unilateral declaration of independence, which 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? Professor Aileen McHarg of Durham University, an expert on constitutional law, says: “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.”

Professor Matt Qvortrup, an international expert on referendums, looked at the political consequences of Scotland being denied a vote and suggests 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 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 professor 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 centre stage. 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 referendum.

This approach has the benefit that it provides an uplifting clarion call for the SNP after what would be 14 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, 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 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 without a majority of votes the SNP 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. Together the two parties could draw up 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 ask what 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”.

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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 they cannot indefinitely resist self-government. Andrew Mitchell, Tory MP and former minister, said it would be “extremely difficult” for 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 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 ­clusterf*** in London has barely caused an uptick in independence that suggests affinity for the Union is deeper than many thought.” It is a leaning that he believes informs the majority of Scottish public opinion.

Similarly, the argument for independence has to listen to those Scots who are still unconvinced, and this includes Sturgeon not interpreting the votes “lent” to the SNP on polling days as being signs of true belief in the cause. Social policy expert Jim McCormick says: “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: “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. The future battle is one that must be seen in this context – as an expression of that longer game.