Richard Parry discusses some of the tactical considerations now being faced by the Scottish Government as they attempt to navigate the Brexit process while promoting their long-term constitutional objectives.
Before the Brexit referendum a commonplace of debate was that Scottish deviation from the UK decision would create a basis for a likely successful renewed push for Scottish independence. In the event the deviation was remarkably sharp and the broad 60:40 pro-Remain split in the few Scottish polls taken was reinforced not eroded in the final outcome. And yet once post-referendum polls settled down support for independence has been no greater than in 2014 and the SNP’s tactics have been cautious. The launching on 2 September 2016 of the National Survey that invited Scots to express Brexit-related concerns seemed both a buying of time and an expression of reluctance to push for independence wrapped in the European flag.
How will the SNP play it? The assumption remains that they are setting up Indyref2 by adopting holding positions on protecting Scotland’s interests and leading a pro-soft Brexit coalition. The political danger for them is that the timing of IndyRef2 is being taken out of their hands. Would they allow Scotland to be taken out of the EU without at least trying to prevent it by another pitch at independence? If they went along this road, they would presumably have to argue that there will not be enough time before 2019 to secure independence and carry over seamlessly Scotland’s place in the previous UK membership of the EU. This recognizes that many EU interests would refuse to address anything other than an extinguishing of UK membership and its special statuses and an application by an independent Scotland to be a totally new member. Or there might be a deal with the UK Government of no referendum before Brexit in return for major flexibility to Scotland on its terms.
A third argument might be available. The Scottish Government’s Consultation on a Draft Referendum Bill (20 October 2016) stated that if introduced ‘it would be expected that a section 30 order would be sought and agreed, as in 2014’ (para 1.4). This puts the SNP closer to the UK government’s position that an independence referendum, and not just the Union, is reserved. In 2012 the SNP took the offer of a time-limited section 30 order and did not press its earlier position that constitutional referendums were not per se reserved. Indeed, the unanimous support in the Scottish Parliament for holding the 2014 referendum suggested that ‘by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances’ (section 29 of the Scotland Act 1998) the referendum act was just as much designed to confirm the Union as to overturn it. The near-certain absence of such unanimity for IndyRef2 would give the UK Government a basis for denying a section 30 order and the Scottish Government in turn an excuse for not pressing a referendum.
A section 30 order would put IndyRef 2 beyond legal doubt, but its denial would not necessarily be as decisive. Can we be sure that the UK Supreme Court would interpret its absence as putting a referendum act outside the Scottish Parliament’s powers? If the SNP said ‘no claim of a right to UDI, we just want to test opinion and invite the governments to draw conclusions’, who would win? Would ‘Enemies of the People’ be the headline in the Daily Mail or the National?
There are different ways of fighting a campaign, and different ways of losing – or of unexpectedly winning. The case for independence could not now be 2014’s pragmatic, no-problems approach. It would have to confront huge uncertainty of political environment, economy and public finances. It could only be existential, place-in-the-world, very long term stuff. But just because the timing was forced, a loss could be sustained by the SNP more easily than one after the calculated timing they had in mind for IndyRef2.
Or they might win. On a turnout of less than 75 per cent it might be possible for the Yes side to win a second referendum while securing fewer actual votes than in 2014. We could have a lot of action on what the Edinburgh Agreement of 2012 defined as ‘a fair test and a decisive expression of the views of the people of Scotland and a result that everyone will respect’.
Richard Parry is Honorary Fellow in the Centre on Constitutional Change