Scoxit: Scotland to seek independence from the United Kingdom

Brian Milne discusses the implications of a second Scottish Independence referendum and how it differ considerably from the first referendum in 2014.

In the language of the minority of Scots, Gàidhlig, there is a short sentence circulating ‘Alba gus neo-eisimeileachd a shireadh ro dheireadh 2021.’ Translated into English it is: ‘Scotland to seek independence by the end of 2021.’ The reason the Gàidhlig is being used is that it is now part of the Scots identity, was once banned so its use is now part of the defiance growing in Scotland that challenges what an increasing number of people in that country consider governance by a foreign power. A little more that 300 years ago Scotland was more or less forced into union, but one in which they would be an equal partner. That has never been the case, now the desire to leave what is becoming an increasingly unhealthy political union is becoming confrontational.

In 2014 Scotland held a referendum on its future. The Scottish National Party (SNP) has had one core principle since it was formed in 1934 with the amalgamation of the National Party of Scotland and the Scottish Party that is the independence of their country from the United Kingdom.

It is then ironic the referendum that resulted decisively in Scotland remaining in the UK was to an extent based on avoiding ‘Scoxit’, a forceful argument made by the Better Together pro-unionist campaign that claimed that by leaving the UK Scotland would automatically leave the European Union. In the 2016 UK referendum on leaving the EU, Scotland voted by a large margin to remain in the EU. Yet since then, the government has refused to entertain the notion of Scotland being allowed any kind of exceptional relationship that would keep them in or at least closely joined with the EU. The former Prime Minister, Theresa May, refused to accept the arguments offered by Scotland, stating that the referendum produced an all UK decision to leave the EU.

The UK now has a new government that is resolute in its intention of leaving the EU on 31 October. Unsurprisingly Scotland has defiantly restated its opposition to that intent. That opposition may be the beginning of the end of the UK.

The challenge

On the evening of 23 July, Nicola Sturgeon issued a personal challenge to the then immediately newly installed Prime Minister of the UK, Boris Johnson, telling him it is ‘essential’ Scotland has a new independence referendum to avoid being forced to be part of his Brexit. As First Minister she wrote to him within hours of him being installed in Downing Street, probably the first such communication he received and likely to be just the first to repeat her determination that Scotland hold a second vote on their future. In effect, she threw down the gauntlet almost immediately after his first public statement in which he repeated his threat to take the UK out of the European Union without a deal on 31 October. She has repeatedly said that Scotland will hold a second referendum (indyref2) in the second half of next year and that preparations for the vote will begin at Holyrood after the summer recess.

A Scottish Government Bill was introduced by the Cabinet Secretary for Government Business and Constitutional Relations, Michael Russell MSP, on 28 May 2019. The bill is not just for an impending referendum, but to transfer responsibility and legal control of all referendums to Holyrood. Its full title is the Bill for an Act of the Scottish Parliament to make provision for the holding of referendums throughout Scotland; to make provision about such referendums and other referendums held under Acts of the Scottish Parliament. Johnson has thus far insisted he will refuse any demand for a vote, despite his unpopularity north of the border although he has as yet to commit his words to a formal refusal. Theresa May turned down requests to grant another vote despite the bill preparing the way for legislation in turn paving the way for a referendum being passed at Holyrood.

In that first communication she said: “Given your public comments about leaving the EU on 31 October, with or without a deal, ‘come what may’ and ‘do or die’, it is now, more than ever, essential that in Scotland we have an alternative option. In line with the democratic mandate given to us in 2016, the Scottish Government will continue to make preparations to give people in Scotland the choice of becoming an independent country. The right of the people of Scotland to determine their own future is a basic democratic principle that must be respected.” The First Minister initially called for ‘indyref2’ in March 2017 without setting a date, but has now renewed the pressure in the wake of Brexit chaos.

She used her letter to draw attention to the damage that would be highly likely to be caused to the Scots economy by crashing out of the EU without a deal. She stated: “Given the gravity of the potential damage to jobs and livelihoods, this material should be at the top of your in-tray. You will be aware that people in Scotland voted overwhelmingly to remain in the European Union. Subsequent Scottish Government analysis shows that a no-deal outcome could cost 100,000 Scottish jobs. Even a free trade agreement could see a fall in Scottish national income of around £1,600 per person compared with continuing EU membership. I urge you to study this analysis closely so that you understand the implications for Scotland of the policy you are pursuing on Brexit and why it is therefore imperative that you change course immediately to avoid causing lasting harm to the people of Scotland.”

The forthcoming battle

It is very likely to be a battle. It is more than probable the Scots will have to go alone. However, without the permission of Westminster it is likely to go to court which will take quite a long time, thus allowing Brexit to bite. Thus said, Scotland is almost forced to go into a rebellious position of taking the Referendums (Scotland) Bill 2019 back to Holyrood to make it an Act, then proceeding unilaterally. The process is expected to be that Sturgeon will seek an Order in Council under Section 30 of the Scotland Act 1998, so that the Scottish Parliament can hold another referendum. The Scotland Act 1998 allowed for a Scottish government of ministers and a Scottish Parliament to come into force. It does not specify which powers are devolved, but suggests rather than elaborates on those reserved to Westminster. Thus, anything not reserved by the Scotland Act is devolved to the Scottish Parliament although it outlines matters which the Scottish Parliament does not have control over including the ‘Union of Scotland and England’. That means the Scottish Parliament cannot strictly speaking hold a second referendum without asking for permission to take over this power under the Act’s terms.

This can nonetheless be done by changing Schedule 5 through Section 30 of the Act. In the Scotland Act 1998, Section 30 reads: ‘Her majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient.’ It therefore grants the opportunity to change Schedule 5 to allow for indyref2. Other than that, there is no need for new legislation to be drafted, simply the previous agreement to be updated and renewed. On 15 October 2012 the UK and Scottish Governments signed the Agreement on a Referendum on Independence for Scotland. What was attached to the Agreement was a draft Order in Council which, under the terms of section 30 of the Scotland Act, it devolved to the competence to legislate for a referendum to be held before the end of 2014 on whether Scotland should become independent of the rest of the UK to the Scottish Parliament. It is this same route the Scottish Parliament will wish to use, with consent from London.

The case for indyref2

The 2016 SNP manifesto is unambiguous in its intentions that Scotland holds another independence referendum, although only under certain conditions. The commitment is to hold another vote if there is ‘clear and sustained evidence’ that independence has become a preferred option of the majority of people living in Scotland. It was not the only basis on which a second vote can be held. They also said that there would be a call for indyref2 if there was a ‘significant and material change’ in the circumstances that led to the 2014 referendum voting by 55% to 45% to remain in the UK, in this case specifically if Scotland would be taken out of the EU against its will. In light of the 2016 UK referendum result, whereby 62% of Scottish voted to remain against 38% to leave, just under two-thirds, it seems like that is the case. Holyrood has announced plans for two parallel processes: cross-party talks on ‘constitutional and procedural change’ and a citizens’ assembly which would be tasked with considering various issues, including a discussion about ‘What kind of country are we seeking to build?’ Ministers are hoping to hold the first session of the citizens’ assembly in the autumn as a precursor to going ahead with indyref2. The franchise proposed by the referendum framework bill is the same as the 2014 independence referendum. Any UK, Irish, Commonwealth or relevant EU citizen aged 16 and over and on the Scottish local government electoral register would be entitled to vote. It is also intended to reflect future changes to local government and Scottish Parliament elections. The Scottish Government has announced plans to extend the franchise of those elections to all people legally resident in Scotland regardless of nationality. However, at this point in time, there is a question as to the eligibility of EU citizens under UK legislation that will make them third country nationals following Brexit, thus be in this instance without a vote but part of the process to extend the vote to all residents of Scotland. Other than SNP, the only other pro-independence party in the Scottish Parliament is the Scottish Greens; the two parties hold 68 seats which is a narrow majority for independence in the 129 seat legislature.

Opposition in Scotland

The leaders of the Scottish Conservative, Labour and Liberal Democrats have all restated opposition to indyref2 since September 2018. Membership of Labour and parts of the Liberal democrats are far more inclined toward independence, therefore party policy may be modified depending on how Westminster acts toward their country. However, Ruth Davidson, leader of the Scottish Tories, has always been pro-EU and is now very much committed to opposing no deal. She is at odds with the Prime Minister, whose willingness to take the UK out of the EU in a no-deal Brexit has already been challenged in Scotland by her as she warned she could not sign up to such a policy. Meanwhile, Johnson has declared he will be take the title of Minister for the Union alongside that of prime minister as part of his ‘commitment’ to keep the union together.

It will, of course, exacerbate the situation with Westminster, but let us say Scotland goes ahead and holds a successful referendum without consent from the UK parliament. They may have to declare a unilateral declaration of independence, hoping that the 2010 advisory opinion of the International Court of Justice that declared that unilateral declarations of independence were not illegal under international law is supported. Internal tensions have surfaced since it was proposed that a move to unilaterally declare independence should the SNP win a majority of Scottish seats at Holyrood or Westminster was rejected by the hierarchy. That plan, floated by Angus MacNeil MP and Councillor Chris McEleny, would be used to circumvent any refusal of a section 30 order, described on the linked page, on a second independence vote by the prime minister.

Pressure on Westminster

The new PM has not spoken categorically as yet but has reaffirmed the impression he would not approve a request through his pro-union rhetoric. The outcome is that the tension between Scotland and England is mounting, it is exacerbating Plaid Cymru pro-independence sentiments in Wales and the potential standoff with the EU on the Irish backstop will push that further. It is not entirely unthinkable that, should anti-devolution members of his new cabinet demand and achieve reduced devolution, indeed some want the Scottish Parliament and Welsh Assembly abolished and others would wish Stormont replaced by direct rule, effectively abolishing the GFA, Scotland could be thrust into a relationship not unlike pre-1921 Ireland. The aggression is mainly being built up in Westminster with Holyrood proposing negotiation. It will be very damaging, if not destructive, for the UK anyway, especially given that it has been more or less taken for granted that Scots independence is inevitable anyway, but was not expected so soon.

To exacerbate the matter, on 27 July around 5000 of people marched through Caernarfon  to back Welsh independence. Organisers claimed that more than 8,000 joined the rally on the town’s Castle Square. A spokesman for an umbrella group, AUOBCymru, Gwyn Llewelyn, said: “This is really taking off as a real alternative to the stale politics that has failed us so often before.” Arguably, since Wales voted 52.5% against 47.5% to leave the EU, it is often claimed that the country is not even now in favour of remaining in the union. However, the fact that many Welsh voters feel they were not given full facts, indeed were lied to, in the referendum campaign has changed opinion a great deal. Also debatably, a turnout of between 5000 and 8000 demonstrators out of a population of three million can be said to be unrepresentative. Yet, representation from Wales has often joined Scotland in negotiations with the UK government to state their changed position. The main point must be that there is growing collaboration between the member countries of the union to oppose the will of the UK government.

The Irish situation in the equation

Westminster has furthermore been warned that it is very possible they will need to introduce legislation to impose direct rule on Northern Ireland in the event of a ‘no deal’ Brexit. That extremely politically toxic move would set the new UK government squarely against the Irish government and effectively suspend the Good Friday Agreement, thus Northern Ireland would be ruled from London. Without the imposition of direct rule, officials and experts warn that Northern Ireland, where the devolved government collapsed in January 2017, would become essentially ungoverned and ungovernable, facing its biggest crisis since the signing of the 1998 peace deal. However, direct rule would also anger the unionist parties because all UK legislation they stand against could be imposed on them. It is a no win situation that could lead to the return of violence, but may also begin to convince enough of the electorate, including moderate ‘unionists’, who have enjoyed the close relationship with the Republic since the GFA came into force that Irish reunification is preferable to direct rule. The Taoiseach Leo Varadkar’s comments on 26 July in County Donegal that a hard Brexit would raise the issue of Irish reunification, has been reiterated by the Tánaiste Simon Coveney when speaking in Stormont recently. If anything, Ireland is now providing a historic and model for how Scotland proceeds when looking at threats made by Westminster that still assumes Ireland hangs on the shirt tails of England for its survival. In fact, Ireland has proven itself to be a now mature and capable European state that is far more integrated within the EU than dependent on England. Reinforced friendship with Scotland and Wales are boosting the confidence of the ‘Celtic nations’ that are now showing their historic dominance by England will no longer be tolerated.

Eyes on Scotland

At present all eyes are on Scotland. Should they now go ahead, hold indyref2 and vote for independence, irrespective of whether or not Westminster allows it, they will set a precedent that will influence the positions of the rest of the UK. Experts on both sides of the Irish border say that precedent would be highly influential in the future of Northern Ireland, whereas the view on Wales is that their best option would be to press for more devolution and possibly the upgrade from the present assembly to a parliament like Holyrood. That option may determine their longer term future rather than an independence vote in the near future. So now the weight on the shoulder of Scots is that of the future of the UK, whether it is to remain a union as it has been since 1707 or whether probably 2021 will see the beginning of the end of what was once the centre of an empire on which it was said the sun never set. Now it appears to be going down for the last time.

On 29 July PM Johnson visited Scotland. Firstly his advisors told him to stay away from the public. Therefore he visited the Faslane naval base where the ageing nuclear submarines and Trident missiles are based against the majority will of Scots. He then went to Edinburgh to meet First Minister Nicola Surgeon. The meeting took place in her Bute House official residence. Crowds of pro-independence and anti-Brexit protesters gathered that forced Johnson to leave by the back door. Sturgeon accused Johnson of intentionally pushing the UK towards a no deal Brexit, despite his ‘bluff and bluster’ about wanting an agreement with the EU. She said: “Behind all of the bluff and bluster, this is a government that is dangerous. The path that it is pursuing is a dangerous one, for Scotland but for all of the UK. He says that he wants a deal with EU but there is no clarity whatsoever about how he thinks he can get from the position now where he’s taking a very hard line … to a deal.”  Part of her focus was his claim that he is ‘reaching out a hand’ to EU leaders to strike a deal, although his spokeswoman said he would not meet his counterparts until they agreed to scrap the Irish backstop. If anything can be assumed about his visit, it is that he has done nothing to achieve his stated goal which was to strengthen the union.

This is not simply yet another Brexit tale, but a lesson for the EU. Bearing in mind it was the UK as a whole that has been a member, but we are now seeing a part of that union expressing its preference for membership of another, this could be applied elsewhere. Hypothetically, although not impossibly, for example France or Greece could go for ‘Frexit’ or ‘Grexit’ but Corsica or Crete could say they want to remain in the EU. Likewise secessions within member states may occur, thus giving the EU parts of former members who will then have to apply for membership in their own right, if that is their desire. Whilst every member state of the EU is generally different to another, where there is devolution, autonomy, secession or separatism, the likelihood is that whatever central government wants, that region, state or province will want something entirely different which may be comparable to the present situation in Scotland. No doubt those tasked with observing such possibilities are watching closely. If the UK goes into decline as it breaks up, it will serve as a warning, but in the unlikely event that Brexit is a roaring success we must keep a weather eye on our neighbours, they may want to leave the EU too, parts of them may not. Brexit and its knock on effects in the UK may itself be a template for a very important part of the future of the EU.

20 December 2019 – Update

Since writing this at the beginning of August, things have developed in leaps and bounds. The demand for a referendum in the immediate future is highly likely to be turned down, that may find its way through the courts. The fact that Scotland now has 48 SNP MPs of the 59 constituencies in the country presents an argument that the electorate favour independence, a question that can only be resolved by asking them. The new Westminster government may well antagonise the Scots by reducing some of the devolution powers they gained in 1998, when in fact Scotland is ready to take on more responsibility for themselves, in which case a majority for independence may be the outcome. Westminster shows no particular interest in Scotland, yet does not wish to lose any part of the union, therefore will oppose separatist ambitions. It will be an outcome of the general election by one means or another that may begin what culminates in the end of the union in the foreseeable future.

Yesterday Nicola Sturgeon wrote to Prime Minster calling for the Scottish parliament to be given permanent powers to hold subsequent referendums on independence from the UK. She described the SNP’s success in the general election as an ‘unarguable mandate by any normal standard of democracy’, confirming that she had formally written to Boris Johnson to request the powers to legally stage another referendum under section 30 of the 1998 Scotland Act. She also published a 38 page document that sets out draft amendments to the statute, which would devolve the right to hold votes on leaving the UK to Holyrood. Later that evening, the Scottish Parliament passed the Referendums (Scotland) Bill by 68 to 54, creating the legal basis for holding an independence referendum. Now the ball is in Westminster’s court although a blunt refusal is expected that will begin a lengthy battle that Scotland is determined to win.