On Sunday on the Marr show, Nicola Sturgeon stated the obvious. The case for independence is not affected by legal difficulties faced by any individual. If indeed it were the case that personal legal problems had constitutional implications, then given the number of legal issues which have been faced by British politicians, Westminster would be indistinguishable from a smouldering crater in the aftermath of a nuclear strike. The only certainty in the British state these days is that almost everything is uncertain.
Nicola Sturgeon has reiterated her intention to provide some clarity about her plans for an independence vote in a few weeks’ time. I don’t know what Nicola is going to announce. I only know what I’d announce if I were the First Minister. Admittedly if I were First Minister there would be a whole lot more swearing and sarcasm in public life, so possibly it’s just as well that I’m not.
The polls are still not showing a clear and consistent majority for independence. They’re not going to until there is a clear and definite date for a vote, and an official campaign. Those of us who are politics geeks often make the mistake of assuming that everyone shares our interest. They don’t. Most people will not engage with the arguments about independence until they have a reason to. That reason can only be an upcoming vote on the topic. It’s only when an official campaign is in full swing that the polls will start to change.
The best method of getting an independence referendum in which everyone participates and the result of which is recognised and accepted by all parties is for the British Government to agree to a Section 30 order. It’s likely that when she does make her announcement the First Minister will renew her call to Theresa May to grant a Section 30 order in order to allow the referendum to go ahead. When this call was made previously, Theresa May rebuffed it, saying “Now is not the time.” When Nicola makes a renewed call, the times and circumstances will have changed.
It is not inconceivable that we will be facing a no deal Brexit. If a no deal Brexit is avoided, we may find ourselves being taken out of the EU on some version of Theresa May’s deal, taking Scotland out of the customs union and single market and ending freedom of movement. That is a hard Brexit by the definition used back when the Scottish Parliament voted in favour of another indepedence referendum. Brexiteers may wish to rewrite their definitions retrospectively, that doesn’t mean that Scotland should allow them to do so. Both a no deal Brexit or Theresa May’s hard Brexit were seen as unlikely, we now know that they’re frighteningly plausible. That’s a major change in circumstances compared to the situation back in the early months of 2017.
However it’s unlikely that the notoriously obdurate Theresa May will change her tune. Uncooked spaghetti is more flexible and less brittle. In her mind in her most perfect of unions, she has an absolute veto on whether the people of Scotland get to choose the form of government best suited to their needs. So while it’s important that the Scottish Government renews the call for Theresa May to grant a Section 30 order and respect the Scottish Claim of Right which the Westminster Parliament itself endorsed on 4 July 2018, it’s also important that it spells out the political consequences if Theresa May refuses to do so.
If Scotland is trapped in the UK and its future is subject to an absolute veto by a Prime Minister whose mandate derives from votes from elsewhere in the UK, then it is clear that Scotland is not in a union at all. It’s going to be very difficult for anti-independence parties to continue to argue that Scotland is freely and willingly a part of the UK when the British government refuses point blank to allow the people of Scotland to have a say on the very changed circumstances of the British state.
The British government should be given every opportunity to agree to a Section 30 order, but if I were the First Minister I’d give them a tight deadline. If Theresa May, or whoever is Prime Minister by then, is still refusing to grant a Section 30 order, then the Scottish government must start legal action in order to test the legality of a consultative referendum held without a Section 30 order. This need not, as certain anti-independence commentators are so keen to make out, be automatically outwith the competence of Holyrood. A consultative referendum would not impact upon reserved powers. It would remain for Westminster to act upon the outcome and give it legal effect. The effect of a consultative referendum would be political, not legal, and it would be very much within the spirit of the Scottish Claim of Right which Westminster has agreed to.
Should the court determine that a consultative referendum was indeed legal, the Scottish Parliament should press ahead with one. During the following campaign, independence campaigners will then be able to point to opponents who had sought to silence the people of Scotland and prevent them from having a say. This is why it’s very much in the interests of opponents of independence to agree to a Section 30 order. It’s the only way in which they will be able to maintain the fiction that Scotland is a partner in a union, and not trapped in a loveless marriage with a bullying partner who refuses to allow marriage guidance counselling, never mind a divorce.
However should the court rule that it was illegal, and the matter is likely to go to a UK Supreme Court in which Scottish judges are a minority, a court which has previously given the British government the benefit of any possible doubt, then it would be time for a Scottish plebiscite election. That could take place either during a Westminster General Election in Scotland, or during Holyrood elections, whether early or at the end of this Scottish Parliament in 2021.
If the Greens refuse to support the Scottish Government’s budget this week, there could be a Scottish election a lot sooner than 2021. It could be very soon indeed. If that happens and the Scottish government falls, there won’t be time to test a consultative independence referendum in the courts, we’ll be straight into an election. Nicola’s decision will have been made for her.
If it were up to me I’d go for a plebiscite election if there’s an early Holyrood vote, but I suspect Nicola Sturgeon will take a more measured and careful path. However any coming election will be an election in which Brexit and Scotland’s response to it will be front and foremost. It will be an election in which the question of independence cannot be sidelined or avoided like the SNP tried to do in 2017. Do we want the continuing powerlessness of Scotland in this supposed union, or do we want a Scotland which is empowered and which has a meaningful voice. Do we want the passivity of Scotland in this so-called union, or a Scotland which is an agent in its own destiny. That is going to be the only issue. Evereything else is irrelevant, because everything else is at risk of destruction by the Tories’ insane clueless and chaotic Brexit. A win for pro-independence parties in an early election means an unarguable mandate for a Scottish people’s vote.
A continued refusal from Westminster to allow that Scottish people’s vote would destroy any pretence that the UK is a union, or even a democracy. Such a refusal should be followed immediately by either a consultative referendum or the dissolution of Holyrood and a plebiscite election.
When Nicola Sturgeon makes her announcement to the people of Scotland, she needs to make it clear that one way or another, the people of Scotland will get a legal vote on Brexit and on Scotland’s place within this so-called union. Theresa May does not have a veto on Scotland’s future.
Buckle up. We’re in for a bumpy ride.
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