Path to independence: Experts weigh in on First Minister's strategy

The comment from Professor Richard Finlay of Strathclyde University come as debate continues over the strategy for the path to independence outlined by Humza Yousaf.

The First Minister told SNP members last week that the party winning most seats in Scotland at the next General Election would be a mandate to negotiate with the UK Government on Scotland leaving the UK.

And he said it would trigger plans to “lay the foundations for an independent nation”, including drawing up a “Withdrawal from Westminster – a New Partnership Agreement” document to set out the proposed terms of Scotland becoming an independent country, such as division of assets. 

But with support for the SNP faltering according to the polls, will Yousaf’s strategy work and what are the challenges?

The Sunday National asked a range of experts from political analysts to pollsters for their views on the path set out by the SNP leader.

Richard Finlay, professor of history at Strathclyde University

The path to independence is “first and foremost” a political issue and until it is resolved the debate about legal technicalities is “superfluous”, Finlay argued.

He said: “In order to secure independence, it must be demonstrated that it is what the Scottish people want, so using elections as a means of measuring support seems to me to be a perfectly legitimate way to do this.

READ MORE: The path towards a written Scottish constitution

“Furthermore, the Salisbury convention is a firmly established constitutional principle in Westminster politics whereby a policy in a party-political manifesto is deemed to be the will of the people if the political party secures a mandate at the General Election.

“Obviously, there are complexities in the Scottish case, but it would be hard to argue against this on a point of principle.”

Finally said the examples of independence from elsewhere also showed it is best to see it as a “process” rather than an event.

He added: “As such, there will be a period of political dialogue between Edinburgh and London.

“But before any of that can happen, you need to demonstrate that there is an appetite for independence, and this can only be done by using the available electoral apparatus as it is the only one that will be recognised as a legitimate indicator of public opinion.

“Remember, the demand for home rule in the convention and petition of the early 1950s  was turned down by Westminster because it was not endorsed by an electoral mandate.

“It was the same in the 1980s and 90s when the Conservative government argued that Scottish MPs could not impose devolution on the rest of the United Kingdom if the majority of UK MPs did not want it.

“They did, however, say that if the Scots wanted independence, they could have it by voting for the SNP. So we might be going back to that.”

Dr Lynn Bennie is reader in politics at the University of Aberdeen

She said: “Humza Yousaf looks to be appealing to the activist base – giving them a way to use their energy and help them feel like progress is being made.  “He is also recognising that the independence cause is more than the SNP, reaching out to the wider movement.

“However, it’s very hard to create the energy and vibrancy seen in the 2014 referendum campaign – this evolved much more naturally from below and had a focal point, i.e. the referendum itself.  “And the General Election strategy doesn’t change much at all in that it isn’t likely to build support for independence, but is likely to produce the same response from Westminster (no referendum!).”

She added: “During the SNP leadership contest, Humza Yousaf spoke about building a sustained majority for independence, suggesting a longer-term strategy.

“That could be a more effective approach, but would also frustrate the activists. Meanwhile, Scotland’s public policy challenges are being more widely reported, suggesting the SNP government hasn’t lived up to its earlier reputation for competence.

“These are challenging times for the SNP.”

Pollster Mark Diffley, founder and director of the Diffley Partnership

Diffley said Yousaf’s plan was different to the strategy set out by his predecessor Nicola Sturgeon – but questioned the extent to which that would be understood by voters as it had “taken lot of explaining”.

“The big change is that she was saying it would be a majority of votes, and he’s saying the majority of seats or winning the most seats of any of the parties.

“So I can see why internally, people might think that’s good, because we don’t now have to reach this 50%, we don’t have to do this thing that we’ve never done before in order to claim legitimacy for the thing that we want to do next.

“That was always kind of the party setting itself up for a fall. Even at the recent high mark of support for the SNP, which they’re nowhere near at the moment. they didn’t get 50%.”

However, he also cautioned that “momentum is everything” and there would be the risk of the SNP “looking a bit daft” if they lost a number of seats and then tried to claim it was a mandate for independence.

He said support for independence was proving “impressively resilient”, but the strategy set out by Yousaf was unlikely to change the views of supporters on either side of the independence debate.

“What they need to do and what [Yousaf], to his credit, acknowledges that they need to do is to make the case,” he said.

“They need to get away from the process and on to the what does it mean? Why would things be better? Why would people want to take what you know many would see as a risk?

“Until you get to that point, you’re not going to convince a whole load of people that it’s worth doing.

“And that remains their biggest obstacle.”

Kirsty Hughes, writer and commentator on Scottish, EU and UK politics and formerly founder and director of the Scottish Centre on European Relations

Hughes said announcing the General Election as a de facto independence vote was “fine in principle”.

But she added: “In practice, it’s not obvious it’s the right moment when independence support is not growing and there’s no dynamic debate. It’s also very much a strategy for SNP voters and the converted.

“It’s not a strategy to convince ‘no’ voters or to change minds. It could change but so far Humza Yousaf is not focusing, it seems, on substantive arguments for independence and without that, there is unlikely to be any marked upward shift in independence support which could then make the General Election strategy plausible.”

Dr Nick McKerrell, senior lecturer in law at Glasgow Caledonian University

Yousaf has set out plans to draw up “draft legal text” on a withdrawal agreement from the UK if the SNP win a majority of seats at the General Election – even if the UK Government does not agree to open negotiations.

McKerrell said the SNP could publish a document setting out what they want, but for anything beyond a discussion type of paper, there could be questions over what legal powers it could be done under.

He said: “For it formally to be the Scottish Government position, it would mean that the Scottish Government would have to propose it.

“That obviously means the civil service would have to propose it and draw it up etc for it to be an ‘official’ document.

“I think there are ways around it – but you’d have to explain why the Scottish Government’s officials are working on that given there is no negotiations on independence going on at the moment.”

McKerrell said if it was a bill going through parliament, it could face challenges on whether it was within Holyrood’s powers, following the Supreme Court ruling on an independence referendum last year.

He said: ”It could be challenged by the presiding officer, it could be challenged by the UK Government, it could be challenged by citizens or the Scottish Government themselves could refer it to the Supreme Court which is what we saw a year ago.

“My guess is the Lord Advocate won’t want to go anywhere near Parliament, given the experience of the bill for a referendum.”

He said there was also the “realms of judicial review’, pointing to the recent example of the UK Government’s policy on sending asylum seekers to Rwanda, which was successfully challenged in the courts.

But he also pointed out Yousaf had a difficult issue to deal with as there was no immediate answer to the UK Government’s refusal to agree to requests for a Section 30 order to allow a referendum.

He added: “Obviously that’s the position of Rishi Sunak’s government and it seems the position of Keir Starmer if he becomes prime minister – so then what do you do?

“There is no magic trick that’s going to solve that.”