THE UK Government’s approach to Scottish independence is “Kafkaesque”, according to a former constitutional adviser who helped draw up the Edinburgh Agreement.
On the day Nicola Sturgeon unveils her route map to a second independence referendum, Professor Ciaran Martin warned Westminster that its refusal to countenance another ballot could backfire.
The former Cabinet Office constitution director and a current Oxford University academic said any High Court victory for Boris Johnson over indyref2 could prove to be “pyrrhic” if it is shown there is legally no “union of equals”.
He also dubbed the UK Government’s stance on the constitution “highly unsatisfactory” – but said it left Holyrood ministers short on options to achieve independence.
Speaking to BBC Good Morning Scotland (GMS), Martin gave his thoughts on a potential court battle if the UK Government continues to refuse a Section 30 order – which allowed for a legally “watertight” referendum in 2014.
He explained: “If the UK Government wins, it might be something of a pyrrhic victory in that the court won't rule that it's too soon since the last referendum. That's not a point of law. It won't rule that the Scottish people, via opinion poll, say they're not interested in having a referendum. That's not a point of law.
“What it’s likely to rule, and it will depend on the wording, is that really the United Kingdom is the country that Scotland has no automatic right as a nation within it to leave unless [the] UK Government says it can.
“So this idea of a union of equals actually has no standing in law. And that can be very difficult for the UK Government, even if it wins.”
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If Westminster were to lose the court case, Martin warns “there could be the sense the UK Government has gone to court to overturn a democratic mandate”.
He added: “So I think there are risks, however the UK Government is clearly taking the view that it’s less risky than allowing a referendum on which it would be committed to act if there was a Yes vote.”
The former UK Government official argued if Westminster refuses to agree to a vote during this parliamentary term, it should set out when it believes another vote would be appropriate.
“That is my view, but it's not their view. I think we're in a slightly Kafkaesque constitutional position at the moment – that independence question dominates Scottish politics, and people may tell opinion pollsters that they don't want another referendum. But when the election came last year, there were plenty of options to vote for parties that didn't want a referendum and I don't think we should blame or be critical of the SNP [for pursuing a referendum].”
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Martin continued: “The Westminster government position essentially appears to be, you know, come back in 17 years or so.
“I'm not sure how sustainable it is to maintain a narrative that whilst the independence question dominates Scottish politics – while Scotland has the right, in principle to become independent – there's going to be no discussions as to how and when that will might be tested, indefinitely, regardless of the results of Scottish election results.
He deemed it to be “a highly unsatisfactory situation”, adding: “I do think the Westminster government will have to move at some point or indeed should think about moving at some point.”
Martin went on to address the possibility of Unionists potentially boycotting a second independence referendum if it is held without Westminster’s consent.
He said a plebiscite is not a “necessary step”, pointing out that other countries have gained their independence through parliamentary elections, for instance.
The constitution expert continued: “So the point is, is the Government of the United Kingdom willing to contemplate a process that might lead to independence? And at the moment the answer to that is no. And for as long as that's the case, there isn't much the Scottish Government can do.
“It can protest, it can win elections. It can try and find ways of testing opinion via referendum – whether Unionist parties participate in that or not.
“The critical point is will the UK Government pledge to act on the outcome of that referendum? And for as long as the answer to that question is no, there's no way of achieving independence through negotiation, through any sort of peaceful orderly transition to a new Scottish state, which is what the Scottish Government wants.
“So I think the boycott question is slightly irrelevant.”
The First Minister is setting out her route map to a second independence referendum on Tuesday.
The Scottish Government has said it intends to hold a vote in October 2023.
However, Boris Johnson has repeatedly ruled out approving a Section 30 order, with Tory ministers suggesting another vote should not be held for decades.
Polling expert Professor John Curtice explained that it would be unthinkable for the Scottish Government not to pursue a second vote.
He told GMS: “It is inconceivable that Nicola Sturgeon is not going to attempt to try to hold the independence referendum, given the character of the electorate voted for in May 2021, as it would have been for Boris Johnson not to have implemented Brexit having gotten a majority in 2019 essentially off the back of those who had voted Leave.
“Both Boris Johnson and Nicola Sturgeon are, in a sense, prisoners of the electorates that got them into power. And what we're going to see played out in the coming weeks and months are those two contradictory mandates and two contradictory coalitions essentially engaging in a game of cat and mouse about whether and how any possible referendum might be held.”
As for the outcome of a referendum, Curtice said it was too close to call.
“The honest answer to that question is we do not know what the outcome of any referendum will be.”
He pointed out that in recent opinion polls, on average, the No side has been slightly ahead. But he explained that ever since 2019 the polls have been roughly evenly split, aside from a period in late 2020 and early 2021 when the Yes side was further ahead.
“Given the public opinion is close to 50-50, frankly, it's a lottery at the moment as to which side will emerge victorious at another referendum.”
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