There’s a belief amongst sections of the independence movement that after Brexit happens Scotland will lose its ability to hold an independence referendum and so we need to hold an independence referendum before March 2019, otherwise we’ll never be able to hold one at all. In a similar vein there are those who assert that after Brexit, the UK would never recognise the outcome of an indy vote, and so we need to have one before 29 March 2019 otherwise Westminster would keep Scotland a part of the UK even if a majority of the Scottish electorate has voted for independence.
I’m not sure where these ideas of Brexit Day blues for independence come from, but the good news is that they are not true. Categorically. Definitely. Absolutely. Not true. Brexit destroys many things, but it doesn’t destroy Scotland’s hopes of independence.
The EU was not and never was a guarantor of a Scottish independence referendum, and the UK’s membership of the EU has no bearing on Scotland’s ability to hold one. Scotland will no more or less be able to hold an independence referendum after March 2019 than it is able to hold one before that date. Formally leaving the EU makes no difference in that respect. Our ability to have a vote on the future of Scotland as a country is not conditional on the EU membership of the UK.
Just ask the Catalans. The EU (in)famously does not get involved in the internal constitutional politics of member states. Catalonia is unable to hold an independence referendum that is recognised by Spain or by the rest of the EU because the Spanish constitution prohibits it. The EU does not get involved and does not insist to Spain that it must permit a Catalan referendum. As far as the EU is concerned, the workings of the Spanish constitution are a matter for Spain.
Equally, as far as the EU is concerned, the internal constitutional arrangements of the UK are a matter for the UK. That is true both before and after Brexit Day. There is no constitutional bar on Scotland holding an independence referendum, and that fact remains true after Brexit Day just like it’s true at the moment. The EU can neither take legal steps against the UK to ensure that a referendum is held, nor take legal steps to prevent one. That will still be the case after Brexit Day. The ability to hold a referendum in Scotland rests upon the internal constitutional set up of the UK, and that does not change once the UK has left the EU. The truth is that the UK Government has as much of a legal and political ability to resist a vote on independence right now as it does after 29 March 2019.
Part of the confusion comes from the Westminster power grab. The Westminster parliament is using Brexit as an excuse to strip Holyrood of powers, and there is a natural fear amongst many that this power grab will extend to stripping Holyrood of the right to hold a vote on Scotland’s future. However the power grab is happening because of the nature of devolution, leaving the EU merely provides the Conservatives with a convenient excuse. The legal right for Westminster to do so was always there, the Conservatives are simply availing themselves of the political opportunity.
It’s called “devolution” because Westminster always intended and believed that any powers exercised by Holyrood remained powers possessed by Westminster. “A power devolved is a power retained”, in formula of the 1990s when devolution was being planned by the then Labour government. Right now, as a part of the EU, the British Government has an absolute legal right to abolish Holyrood, to strip it of any power it wants, and if it did so the EU would not get involved.
Whatever happens with Brexit, Scotland will always be able to hold a vote on its future. The Scottish Parliament can hold a consultative referendum without Westminster’s permission. That won’t change after Brexit. Pro-independence parties in Scotland will always be able to turn any future Scottish elections into a plebiscite election on independence, without Westminster’s permission. That won’t change after Brexit either. In fact, even if the British Government abolished Holyrood entirely, Scotland’s pro indy parties would still be able to convert a Westminster General Election in Scotland into a plebiscite election. All this means that before or after Brexit the Scottish Government will still be able to exert the same pressure on the British Government and to make the same arguments to press it into granting a Section 30 order, by threatening it with either a consultative referendum or a plebiscite election.
The big difference is that the political landscape will have changed after Brexit. Then the SNP and the Greens will be able to say clearly and without any contradiction that Scotland has been taken out of the EU against its will, and so the condition in the SNP mandate of 2016 has been fulfilled. Brexit strengthens the political argument for a referendum in Scotland, it doesn’t weaken or destroy it. It doesn’t strengthen the hand of Theresa May.
Here’s the thing – if the legal window for holding a referendum closed definitively on Brexit Day in March 2019, there is no way that the Scottish Government would contemplate allowing that date to pass without holding a referendum. However it seems more likely than not that the Scottish Government is going to do precisely that, and that Scotland won’t be having a referendum or a vote until sometime in summer or autumn next year at the earliest, after Brexit Day in other words.
If the lawyers and legal advisors of the Scottish Government had informed the Scottish Government that there was going to be no legal way to have a vote after Brexit day, you can be certain that Nicola Sturgeon would already have informed everyone about a date for a vote. She hasn’t, and the mood music is definitely playing a song of delay. That can only mean that there is no such legal advice, and there is no legal prohibition on a referendum after Brexit Day. The fact that Nicola Sturgeon is clearly contemplating holding a vote after 29 March 2019 means that she doesn’t believe that the political window for holding a referendum closes on Brexit Day either.
Then there are those who say that even if there was a vote after Brexit Day, the British Government wouldn’t recognise a Yes vote when it happened. Now, I bow to no-one in my low opinion of British Governments. They don’t call it Perfidious Albion for nothing. However when there is a Yes vote for independence, especially a vote which the anti-independence parties have participated in, the political realities will mean that the British Government of the day will have no option but to recognise it.
Following a Yes vote, the British Government will be under political pressure from a Scottish Government which has just won a democratic mandate for independence. It will be under political pressure from the powerful English nationalist faction of the Conservative party which will fancy its chances of increasing its power and influence in a UK without Scotland. It will be under political pressure to recognise the democratic legitimacy of a vote which the anti-independence parties will have participated in. And most importantly of all it will under political pressure from the international community. The EU will not interfere before there’s a Yes vote, but once there is, and especially given the context of a Scottish independence vote held against the background of a UK which has just left the EU, a Scotland which is markedly more pro-European in its attitudes and outlook, the EU will then speak up far more vigorously on Scotland’s behalf.
Personally, I would like an early referendum. I want to have a vote as soon as possible. I want Scotland to be independent sooner rather than later. However I understand the reasons for delaying until after March 2019, and am not scared of them. You shouldn’t be either. We have only one bullet, and we need to make it count. The closer that we get to firing that starting pistol, the harder it becomes not to lose our nerve. Brexit doesn’t spell the end of hopes for Scottish independence, it spells the end for hopes of the UK preventing it. Brexit doesn’t mean the destruction of Scotland’s path to independence. It means the UK will have destroyed itself. The real Brexit Day blues are for those who oppose Scottish independence.
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