There’s been some commentary in the weekend papers to the effect that Scotland isn’t going to get a referendum before 2021, and possibly not after that, because the British government is going to remain implacably opposed to a Section 30 order. They suggest that what Nicola Sturgeon has done with her announcement this week is an attempt to let down the party faithful, because the only way in which she will go for a referendum is with a Section 30 order. Since there is no current sign that the UK government is going to allow one, then we’re never going to have a referendum, or at least we’re not going to have one any time soon.
David Mundell in an interview this weekend doubled down on the refusal from Theresa May, and suggested that no Conservative government would ever grant a Section 30 order under any circumstances at all. Clearly, David is talking way above his pay grade here. Although to be honest David would be talking way above his pay grade if he suggested chocolate hobnobs instead of bourbon creams as the biscuits to go with the tea and coffee at cabinet meetings. Such a profoundly undemocratic stance might play well with the Tory party faithful in Scotland, and the green ink SiU ranters who infest the comments sections of Scottish newspapers, but in the real world it’s an admission that Scotland isn’t in any sort of union at all and is merely a possession of the British state. It would not survive an election in which Scotland returned a strong majority of pro-independence representatives with a direct mandate to negotiate independence.
In his article for the Herald this Sunday, Ian McWhirter dismissed any possiblity that there might be any attempt at UDI, a referendum without a Section 30 order, or a de-facto referendum by turning Scottish elections into a plebiscite on independence in the event of a persistent refusal from Westminster to engage with a Section 30 order. However that would seem to concede that Scotland cannot have a say on independence unless Westminster is disposed to allow it, and if Westminster is never disposed to allow it then Scotland is effectively trapped within a dysfunctional UK forever, no matter what it wants. Ian doesn’t offer any way out of that trap. Certainly diehard opponents of independence want us just to have to put up with it indefinitely. However that is not a situation that Nicola Sturgeon, or any SNP leader, is going to tolerate.
Certainly a Section 30 order is, as Nicola Sturgeon herself called it, the gold standard. It means a referendum that is recognised by Westminster, in which the anti-independence parties participate fully, and whose result would be accepted by both parties. That means a result in favour of independence would be recognised by the UK, and equally importantly would be recognised by the international community. However there is also the reality that the more that support for independence increases in the opinion polls, the less likely it is a British PM is going to be disposed to grant a Section 30 order. No Prime Minister wants to go down in history as the British Prime Minister who broke up the UK.
Suppose there’s never going to be a Section 30 order, how do we get out of the trap that opponents of independence tell us that we are in? Ian is correct that there will be no UDI. There are those on social media who insist that the Scottish Government has the right to rip up the Treaty of Union and walk away, making a declaration of independence without any further ado. That’s not going to happen. The reason it’s not going to happen is because there is currently no clear democratic mandate for it to happen. The current Scottish Government was not elected on a mandate to unilaterally declare independence, it was elected on a mandate to hold a referendum should there be a material change in Scotland’s circumstances within the UK. We’ve not had that vote yet. No third country would recognise Scottish independence under those circumstances, and in independence, it’s international recognition that really counts. But worse than that, UDI without a clear democratic mandate would risk the British government taking action to impose its rule on Scotland by force. That is in no one’s interests.
We need a clear and unequivocal democratic mandate which says that a majority of the people of Scotland want independence. There can be no declaration of independence or recognition of Scottish independence until that happens. So ignore the UDI-ists on social media. They are angry and frustrated, with good reason, but they’re not proposing a realistic path to independence.
The next possibility is a referendum without a Section 30 order. Those who say that such a referendum would be illegal are making a political claim, not a legal statement of fact. No one has ever tested the legality of such a referendum in the courts so no one knows whether it’s illegal or not. However the fact that the Scottish government doesn’t seem to have any plans to introduce a court case to test the legality suggests that they have no plans to go down that route. The reason is not so much to do with legality, and more to do with the practical reality that a referendum without a Section 30 order would most likely be boycotted by the anti-independence parties. If opponents of independence don’t participate, it becomes very difficult to ensure that the referendum produces a meaningful result.
If Scotland was a country which had a media which was as evenly balanced on the subject of independence as the population at large, then a referendum without a Section 30 order might be a worthwhile route. We might then have a chance of getting a result that would clearly show that independence would have won even if opponents had participated. We’d have a good chance of a very high turnout. However in order to put the result beyond any doubt, we’d need a result which would show that a majority of the entire electorate wanted independence, and not just a majority of those who turned out to vote as in a normal ballot. With anti-independence parties boycotting the vote, they’re going to claim that everyone who didn’t vote voted no. No normal ballot ever gets 100% turnout, so we’d be up against an artificially high threshold.
Even so, this strategy might still be worthwhile if we had a representative media, but that’s not the Scotland that we live in. We live in a Scotland which doesn’t have a flourishing domestic broadcast media. Worse than that we live in a country where every single print newspaper bar one is opposed to independence. Should there be a referendum without a Section 30 order, even one which had been proven to be legal by the courts, it would be boycotted by the anti-independence parties. All that we’ll hear in the press and on the BBC will be the constant insistence that there’s no point in voting even if you do support independence, because the referendum result won’t be recognised. The vote will be dimissed even before it’s happened.
That leaves turning the next Holyrood elections into a de-facto plebiscite on independence. That shouldn’t be left to the SNP alone. It should only take place with a pan-independence alliance, formal or informal, ensuring that all parts of the independence movement are recognised. Not just the SNP, but also the Greens, and the minor parties as well as the non-party grassroots movement. That would require cooperation and collaboration to ensure that the pro-independence vote is not divided, and a mutual agreement that pro-independence parties and organisations were standing on the sole mandate of ensuring that Scotland has a right to determine its own future, even without the consent of Westminster.
Ian McWhirter ruled this out, as he seemed to believe that it would turn into UDI. However that’s not actually necessarily the case. The real value in turning the next Holyrood elections into a de-facto plebiscite on independence is to create political pressure on the British government that it cannot ignore. A pro-independence result in such a ballot would provide a clear and unequivocal mandate which would allow the Scottish government to ask third countries to recognise Scottish independence and to put pressure on the British government to negotiate. It internationalises the dispute, precisely at a time when the UK will – if Brexit occurs – be seeking to make trade deals and to agree a future relationship between itself and the EU. There will then be immense international pressure on the British government to resolve the situation. This is, after all, not Spain. Successive British governments have explicitly recognised that the people of Scotland have the right to decide for themselves what the political future of Scotland should be.
More importantly, a win for pro-independence parties under such circumstances produces a domestic democratic result which has political effect, it cannot be ignored like an opinion poll can be ignored. It would force the British government to the negotiating table, and would force them to consent to a Section 30 order – because the alternative would be a Scotland which already possesses a democratic mandate for independence. Scotland would then go into an independence referendum having already voted for independence and facing British nationalist opponents who are trying to defend a UK which had to be forced, kicking and screaming, to recognise the democratic will of the people of Scotland. We’d be in an incredibly strong position. We be campaigning against a union that had killed itself and had revealed its true colours as a unitary state which regards Scotland as a province.
What it is important to remember is that we’re not there yet with any of the scenarios detailed above. We have not got to the end of the Section 30 road. This current Prime Minister who is notable only for her instransigence is being predictably intransigent, but Theresa May won’t be around much longer. Given the disposition of the Conservative party membership, she will be replaced by someone who is even more hardline on Brexit than she is. That will only boost support for independence in Scotland.
There will almost certainly be European elections, there may well be a snap General Election and the independence parties are poised to do well. If there is a General Election, the SNP will certainly increase its representation. It could even well end up holding the balance of power.
In those votes it’s hugely important that supporters of independence turn out en masse to support independence parties. It’s only by increasing the number of political bums on parliamentary seats that we can demonstrate that there is an appetite in Scotland for independence and a demand for a referendum. In the short term, the priority is to put pressure on the British state for a referendum. We can do that by continuing to campaign, to persuade, to convert people to the cause of independence, and also by ensuring that pro-independence parties have increased representation in all of the ballots that take place between now and 2021. We can do that by continuing to point out that a British state which refuses to allow Scotland to decide on its own future is a British state which doesn’t recognise Scotland as a partner in a union, but which regards it as a possession.
The crucial point however, is that one way or another, Scotland will have a vote on its future, and we do not require the permission of the British government to do so. There is no trap, only a failure of imagination. There is a way out. The campaign has already begun.
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