As the debate over Scottish independence spilled from the SNP’s conference hall on Monday into the Supreme Court on Tuesday, Scotland and its place in the union returned again to the centre of the national conversation.
This was a shockingly scotocentric few-days by British standards.
It was all very good timing for the SNP. On Monday, Sturgeon was keen to prove that her independence strategy was working — and not 18 hours later were her lawyers taking on the UK government on that exact issue. Momentum was, it seemed, strongly in support of the independence movement.
The new legal front for Scotland’s independence hostilities will be welcomed by the SNP, but less so by the prime minister, who must now add a crisis of the Union to an ever-burgeoning in-tray of cataclysms.
Sturgeon should not be misled. The SNP’s grassroots are desperate for results, and any sign that the party is might their momentum will quickly prompt a backlash against her personally.
This week’s events show that the first minister is caught between her party’s insatiable desire for independence and the stubbornness of the institutions within the Union-state, which will not deliver it.
So while Sturgeon’s newfound confidence may satisfy and unify the SNP conference hall, when it comes the Union-state, just because there is a “settled will” for a referendum, it does not mean there is settled way.
Case of the Supreme Court
Although legislation pertaining the 1707 Anglo-Scottish Union has a notoriously complicated structure, it is worth looking at the intricate arguments submitted on Tuesday and Wednesday by both sides before the Supreme Court. These arguments highlight the potential routes the independence argument may take in the coming months.
Lord Advocate Dorothy Bain, representing the Scottish government, made it clear that the Holyrood government has the right to hold an independent vote. She argued that while the Scotland Act 1999 reserved the right to legislate on “Union affairs” to Westminster, it makes no mentions of referendums. Highlighting the difference between “entirely advisory” and “self-executing” votes, the Lord Advocate affirmed that the legal effect of any referendum on the 1707 Anglo-ScottishUnion would be “nil”.
It is possible that this argument could be retorted at the SNP if it wins a vote. With the legal arm of the Scottish government working to hollow out the meaning of an independence referendum, might unionists feel tempted to boycott the whole affair — if it really does not relate to the status of the Union at all? On extreme analogy would be the 1973 border Northern Ireland border poll, which was boycotted by Irish nationalists — resulting in a 98.9 per cent vote to remain in the UK on a 58.7 per cent turnout.
Furthermore, its has long been the SNP’s argument that Westminster should respect the will of the Scottish people. In the event of “Yes” vote in a referendum, it would implore the UK government to begin negotiations on the terms of independence. This is the expectation of the SNP party faithful. But any admission of this to the court would lose immediately — such is the double-bind Sturgeon now finds herself in.
In an attempt to side-step the arguments of the Scottish government, the UK government’s submission highlighted the fact that Sturgeon is yet to pass any referendum bill. The UK government focused on this procedural point and argued that the Supreme Court should not be used as an advisory body for SNP legislation.
In fact, it was striking how little time the UK government team spent on the substance of the Scottish Government’s case. It insisted, rather, that the case be thrown out on “procedural incoherence” grounds. In any case, the UK government insisted that it was “self-evident” that a referendum on independence will have consequences for the Union.
Consequences of the SNP
Although a Supreme Court decision is unlikely for several months, we can be certain that there will be a new wave of political arguments regardless of how the judges rule on the legal arguments.
Ultimately, this is the SNP’s strategy.
Even if the court makes no “substantive” ruling at all and throws the case out on purely procedural grounds, Sturgeon will use this to highlight the worst aspects of the “democracy-denying” Union-state. This was the result Sturgeon prepared her supporters for on Monday:“if Westminster had any respect at all for democracy, this court hearing would not be necessary”.
The SNP will progress to “Plan B” and run on an independence-or-nothing platform in 2024, turning the general election into a “de facto referendum”.
But this plan also suffers from some serious weaknesses — not least of all it does not solve Sturgeon’s key problem: how does she force the British government to hold a referendum when the British government can simply refuse? The Union’s legal status and stubborn status would not change.
An election is not a referendum. A party cannot declare that it will be treated as one. The rise of Labour may also convince indy-curious voters to return to the Union cause.
One thing the SNP can do is continue to make the argument — and maintain their “maximalist” approach to the independence issue. Indy-watchers can expect a number of Scottish government “prospectus” papers setting out the mechanics of what an independent Scotland would look like over the coming months. The first paper, which is due to be released Monday, will examine what the economic future of an unattached Scotland might look like within EU.
This will keep the party faithful happy — and halt any leaking of pro-indy voters to Alex Salmond’s Alba and the Scottish Greens. The reality is that Sturgeon and the SNP have very little room for maneuver in the Union-state.
The Sturgeon’s desire to hold a referendum on 19 October 2023 already seems far too optimistic.
The stubborn Union-state
Sturgeon is running out of time and her political future depends on delivering results for independence. The first minister’s emphasis on “the independence generation” on Monday was not just a political observation but a promise. It must be fulfilled.
So even if “Unionists” like Liz Truss refuse to make a positive case for the Union — the structures of the Union can hold Scotland in tow. This is a recipe to division, frustration, and, most importantly, for continued stalemate.
The Union of 1707 created a hybrid state, a multi-unitary state that exhibits both centralization and pluralism. But when it comes to the matter of an independence referendum, it is the state’s centralisation which we see emphasised.
Union crises can last decades, according to history. Between the unsuccessful referendum in 1994 on Scottish devolution, which was narrowly unsuccessful, and the second successful referendum in 1997, which resulted in the 1998 Scotland Act, twenty years passed. In fact, the Union’s history has been marked by intermittent crises and recurring deadlocks. The centralised Union state retains and reserves the ability to say no on any occasion.
The Labour factor
Labour may feel that they have a chance to win in Scotland again by 2024. The focus of the pitch will be on kicking the Conservative’s out of Downing Street, but the party will also need new ideas on the constitution if it is to do battle with Sturgeon.
The SNP was able to ignore Labour Party for several years. For Sturgeon, however, the Tory/SNP dichotomy was a very beneficial one. But if the framing of Scottish politics as a two horse race is to come to an end, Labour may be ready to throw a spanner in the works of Sturgeon’s independence pitch.
The party is preparing to publish the Gordon Brown’s “constitutional review”, which, speculation suggests, could include proposals to replace the House of Lords with an assembly of regions and nations.
A new set of constitutional proposals would go some way to undoing Sturgeon’s line that the Conservatives and Labour fail Scotland in equal measure. She told conference eon Monday: “Whether it’s Tory or Labour… It’s not us who gets to decide. The problem for Scotland is not which party is in Westminster. The problem is Westminster”.
If Labour can simultaneously denigrate Scottish nationalism and offer a coherent constitutional alternative to it, Scotland might be open to a form post-nationalist politics.
Labour finally has the chance to be a positive unionist in a midst frustration and stalemate that threatens to dominate Scottish politics over the next few years.
