Brian Milne revisits the question of a Scottish independence referendum and how the campaign for the second would differ considerably from the build up to the first referendum in 2014. This time it is driven by Westminster treating the devolved parts of the UK very badly by not negotiating or even consulting with them on the post Brexit plans, now seriously attempting to thrust mismanaged measures to deal with Covid-19 that has cost them a great deal of former support.
Last 20 December we ran my article ‘Scoxit: Scotland to seek independence from the United Kingdom’. It was more of a postmortem for the failed referendum than predictive of what might come next and when. It was a clear enough win for unionists to consider it, as said at the time, a once in a lifetime event. Now things have changed a great deal. This week (08 July 2020) I read in ‘The New European’ the following headline: ‘EU open to Scotland joining bloc but ‘very reluctant’ to let rest of UK back in’. Somebody is doing something right.
The argument for a new independence referendum in Scotland is hotting up. There is public division on whether it should be allowed or not, but that is mostly inside England. There are also some poorly phrased reports about SNP withdrawing their MPs from Westminster if a new vote is not allowed. Those things are not accurately reported, because it has simply been discussed in terms of what could happen in extremis. As it stands, Holyrood could potentially hold an advisory referendum on the question of independence without the approval of the UK government. A binding referendum requires a section 30 order from Westminster or an amendment to the Scotland Act 1998 by the UK Parliament.
The Scottish Referendums Bill
The devolved Scots government introduced the Referendums Bill to Holyrood as part of an approach toward changing their constitution. The Bill was passed at Stage 3 by the Scottish Parliament in December 2019. That bill then became law on 29 January 2020, will now be the statutory basis for all future referenda held under Scots Law under the instruction of the Scottish Government. That legislation could now form the basis for an almost immediate independence referendum. The current government in Scotland has already sought a Section 30 order or an amendment to the Scotland Act 1998 to ensure that the result of a future referendum can be binding. The difficulty is that the constitution is a ‘reserved’ matter of the UK government under the Scotland Act and as it has effectively been since the Union with Scotland Act 1706 was passed by the Parliament of England and the Union with England Act 1707 passed by the Parliament of Scotland. Compared with most countries or unions across the rest of the world it is complicated anyway since the UK does not have a written constitution but works on the principle of Common Law based on precedent and incorporating such things as the Acts of Union as part of what is in fact something that is challengeable in law rather than as exclusively a parliamentary constitutional matter. To make that even more convoluted, in 1707 when the Acts of Union came into force, Scots Law, a legal system quite different to that of England and Wales, was never integrated into a UK legal system.
On the day the Referendums (Scotland) Act 2019 was passed, First Minister Nicola Sturgeon officially published the Scottish Government’s request to the UK government for the transfer of legal authority to Scotland in order that they could hold a referendum on independence. That request was rejected by the UK government in January 2020. The PM responded by saying that wrote that Sturgeon and the then FM, Alex Salmond, had promised that the 2014 referendum would be a ‘once in a generation vote’, thus both the Scottish and UK governments had pledged to implement the outcome of that vote. Therefore, he stated, his government could not agree to any request for a transfer of power that would lead to further independence referendums. Consequently, at the end of January 2020 a motion was introduced to endorse a new referendum on independence. That motion was carried 64 votes to 54 on the same day that Holyrood voted to continue flying the flag of the European Union after the UK’s withdrawal from the EU.
The argument in Holyrood is that it is exactly how democracy and free elections work. A referendum is, after all they have said, a vote as much as an election is, thus an expression of preference. They have taken into account that opinion polls sample electorates and are not always accurate, however when more than a single poll and by a well measured majority reaches a consensus opinion, it can usually be taken as assured that it is representative. In the case of public opinion, it is now six years, longer than any full length parliament in the UK or its constituent parts, which is considered electorally to be the longest a parliament should last without asking voters to express their preference. The 2014 vote chose remaining in the UK in part on the very open and since generally forgotten principle of full fiscal autonomy, often referred to as devo-max, or fiscal federalism within the UK. The full proposition was to devolve everything except foreign and defence policy which cannot happen to Scotland if it remains a full member of the UK. It has been ‘forgotten’ which has been considered the preference of a small but powerful Westminster lobby against any ‘dilution’ of the structure of the UK. On the other hand, no matter what those people may prefer, they are confronted with a growing number of people in Scotland whose preference is for self determination as the most recent polls have shown and the Panelbase poll of 30 June to 3 July 2020 particularly. They found 54% in favour (+5%) against 46% not in favour (-5%) of independence.
It is almost the reverse of the 2014 result, in fact one my predict that one more major error on the part of the Westminster parliament may well see a good number over the 55% necessary to make that literally the case.
Thus it was that in 2014 Scotland had held a referendum on its future. It was predicated on the Scottish National Party’s (SNP) core principle since it was formed in 1934 with the amalgamation of the National Party of Scotland and the Scottish Party, which is the independence of their country from the UK. Therefore, SNP is pursuing this on the basic principle of being a party that stands for Scots independence and that would be so only consistent with their founding mandate in 1934. It would be wrong to withdraw MPs from Westminster if Scotland is not granted a new referendum since they could continue to agitate from within parliament. Instead the Holyrood parliament should vote one stage further on having that vote, if thus forming a majority, Westminster either simply refuses or, as some right wing MPs have demanded, suspend or even end devolution, then they should put it to the people as immediately as possible as an advisory vote, do as Westminster did in 2016 that led to Brexit by declaring it a majority of electoral opinion, thus act on it. They could then present a perfect case for a Section 30 order or an amendment to the Scotland Act 1998. In the case of a majority advisory vote it would then be quite legitimate to declare they would move to legislate for independence with the mandate of the electorate by holding a binding referendum, which if forbidden as some people have suggested is likely, they could then declare the separation from the rest of the UK and revocation of the 1707 Acts of Union. That would work best with SNP MPs in Westminster who could demonstratively walk out on the day if such a declaration was required.
It is all somewhat hypothetical at this point in time, however an already tense relationship with Westminster, reasonable demands for new powers being refused and what they should be allowed to do as a devolved government being forbidden, plus the very obvious mismanagement of the pandemic by the UK government, have created widening divisions between the two countries. As a few experts have said already, the UK is only bound by treaties at present, the agreed terms of which are not being fully honoured and the conditions of devolution since are being dismissed and overruled, thus all but annulling the terms of those agreements unilaterally by the Westminster executive. Under those conditions the relationship between Scotland and the rest of the UK has broken down to the extent that union is no longer viable, thus should end.