There’s been a bit of discussion recently about how to circumvent the refusal of the UK government to concede to another independence referendum. Yesterday in the Herald it was reported that Western Isles MP Angus MacNeil has suggested turning the 2021 Holyrood elections into an effective referendum on independence. The idea is that the SNP and other pro-independence parties would be using these elections, not to seek yet another mandate for a referendum that Westminster could ignore, but rather to seek a mandate for independence itself. In other words, to turn the 2021 Holyrood elections into a plebiscite election.
I’ve always favoured the idea of a plebiscite election as the option of last resort. Other options should of course be explored, but if there comes a time when all these other options fail then it’s a back up plan which can guarantee a recognised and legal independence ballot in which the anti-independence parties must participate.
There are certainly other options. There’s continuing to press for a Section 30 order and using the increasing political pressure and demand for independence within Scotland as a means to put pressure on Boris Johnson. There’s court action to force Westminster to respect the existing mandates for a referendum. There’s testing the legality of an advisory referendum without a Section 30 order. All these avenues must be explored and exhausted. Even if they do not succeed in bringing about a referendum the very process of exploring and exhausting them will continue to put pressure on the British government and will keep the question of independence front and foremost in Scottish politics. Exploring and exhausting these routes will continue to promote the drift in Scottish public opinion towards support for independence.
A plebiscite election is not UDI, it would not amount to a unilateral declaration of independence. However it would neatly sidestep an obstinate Westminster which continues to refuse to cooperate with another independence referendum. It would provide the people of Scotland with a recognised democratic ballot in which they could express their support for Scottish independence. It would give the First Minister a mandate to write to the UK Prime Minister to demand the immediate opening of negotiations for Scottish independence. Backed by a popular mandate for independence itself obtained legally and legitimately within the framework of the UK constitution, that’s going to be impossible for Westminster to ignore, all the more so as Europe and the rest of the world will be taking a close interest.
There is absolutely nothing in UK law or under what passes for a British constitution which prohibits a plebiscite election. Indeed, that’s precisely what the SNP was doing prior to the establishment of the Scottish parliament. The party was using Westminster General Elections as plebiscite elections, seeking a mandate for independence based upon the number of MPs it was able to return to the Commons. It was widely accepted at the time that if the SNP had ever been successful in obtaining a majority of Scottish MPs, then it would have achieved a mandate to open negotiations with the British government for Scottish independence.
This is a crucial point. A plebiscite election is often misunderstood as seeking a majority in Holyrood for pro-indy parties which can then make a unilateral declaration of independence. That’s not quite the case. In order to be legal and constitutional within a framework which will be recognised and respected by the international community (which is what counts if independence is to become a reality) the plebiscite election should be fought with the goal of obtaining a mandate to negotiate independence with Westminster. Westminster can still be obstructionist, it could still refuse to collaborate. However what it can’t do in the eyes of the international community is to ignore the result of a democratic vote within Scotland giving the Scottish Parliament a mandate to negotiate independence. In fact you can bet your last penny that if there’s a majority in Holyrood for independence following a plebiscite election, Westminster will be falling over itself to offer a referendum. However should Westminster continue to be obstructionist and to refuse to recognise Scotland’s democratic mandate, that would give the Scottish Government the political capital it requires to internationalise the dispute.
In a recent paper published by the constitutional legal experts Chris McCorkindale and Aileen McHarg a number of objections were raised to a plebiscite election. However these objections are not legal in nature, but rather political. As such they are not barriers which cannot be surmounted. The first objection they raise is that the Scottish Government is not in favour of a plebiscite election. That’s the case because the Scottish Government currently believes that it possesses sufficient leverage to get an agreement from Westminster on a Section 30 order. We are yet to see what the further steps will be that Nicola Sturgeon has said that the Scottish Government will take at the end of this month. It may well be the case that Westminster will eventually concede and will cooperate with a Section 30 order, in which case discussions about a possible plebiscite election will be moot.
However the opposition of the Scottish Government only remains an objection until such time as the Scottish Government changes its mind. It may very well change its mind faced with continued intransigence from Westminster and a rise in support for independence in the opinion polls because Brexit becomes a reality at the end of this month.
The second objection raised by McCorkindale and McHarg is that Westminster would not recognise a mandate for independence achieved via a plebiscite election. This may or may not be the case, however we’re currently in the situation where Westminster is not recognising successive mandates for a Scottish independence referendum. Therefore it could just as easily be argued that there is nothing to lose by going for a plebiscite election and everything to gain. Forcing the Conservative government to ignore a mandate for independence itself raises the stakes considerably and increases the political pressure on Westminster and Boris Johnson by several orders of magnitude.
The third objection is that the international community would not recognise a unilateral declaration of independence based upon a plebiscite election. This is what occurred in Catalonia, whose declaration of independence was not recognised by the international community. However there are two significant differences between Scotland and Catalonia. The first is that a plebiscite election seeking a mandate for independence is illegal under the Spanish constitution. It’s not illegal or unconstitutional in the UK. Secondly the point of a Scottish plebiscite election would not be to make a unilateral declaration of independence that Westminster does not recognise but rather to force Westminster to the negotiating table. The international community would be willing to collaborate in that process and would put pressure on Westminster to negotiate with Scotland as simultaneously with the plebiscite election the UK will be mired in trade negotiations with the EU. It is in the interests of the EU to ensure political stability in its trading partners.
However the real value of publicising and discussing the possibility of a plebiscite election just now is that it sends a very strong signal to Westminster that its refusal to collaborate with a Section 30 order and its continual ignoring of successive mandates for a referendum obtained by the SNP will have consequences. Consequences which will end Westminster rule in Scotland. It tells Westminster that it’s very much in the interests of the British Government and the anti-independence parties to cooperate in bringing about an independence referendum because that is the only means that they have left of persuading people in Scotland that this really is a union in which Scotland is a voluntary partner.
If Scotland is forced into a plebiscite election on independence, the anti-independence parties will no longer be able to make the much loved partner argument with any plausibility. Telling Scotland that it’s a partner in a union is the strongest argument, the only argument, that they’ve got. It is important that the independence movement and the Scottish Government make Westminster realise that a democratic reckoning awaits Westminster at the end of their refusals, obstruction, and denial of Scotland’s wishes.
It’s the realisation that Scotland is planning for and intending to go ahead with a plebiscite election which can force Westminster to collaborate in a referendum process, because if a plebiscite election does come to pass it will mean that Westminster has entirely lost control of the process. The possibility of a plebiscite election is the independence movement’s big stick with which we can threaten Westminster and get their collaboration in the referendum process. And if they don’t cooperate, we have a vote anyway. The anti-independence parties can say that they’d boycott a referendum, but they can’t boycott elections to the Scottish Parliament. They can’t stop elections from happening without trashing the devolution settlement even more than they have already – and that would only increase support for independence. For the independence movement, it’s a win-win.
If we’ve learned one thing about the Conservatives, it’s that they don’t respond to pleading, begging, or being nice. The prospect of a plebiscite election is a surefire way of telling Boris Johnson that his refusals mean nothing, because eventually, with or without his cooperation, Scotland will have its say. When dealing with bullies, you need to stand up to them, and you need to demonstrate to them that they will be the losers in the end. Ultimately a plebiscite election and the ballot box is our weapon, the stick we can use to defeat the bullying Boris Johnson.
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