Writing About Brexit: Scottish independence now?

EdinburghEye on Ko-FiThis was first posted on Facebook on 22nd January 2020, with support from my Ko-Fi network.

The democratic case for a second Scottish referendum on independence is pretty clear.

In November 2014, 55.5% of those in Scotland who voted – a shade under 47% of the total electorate, given an 84.5% turnout – voted for Scotland to Remain in the UK. This following a campaign by Labour, the Tories, & the LibDems, which pushed very strongly by both direct and indirect campaigning, that if Scotland became independent, Scotland would no longer be a member of the EU.

This was factually true as far as it went, because rUK would be the successor state and iScotland would have to re-apply.

Though it is also true that providing iScotland didn’t do anything stupid like lock itself into a currency union with rUK, and refuse to have our own central bank but instead be in a kind of subordinate partnership with the Bank of England, iScotland could have applied to join the EU and been fast-tracked in, as the UK was a member of the EU, at the moment of leaving the UK iScotland would qualify by all but a handful of the chapters of the acquis to be a new member of the EU – and those chapters of the acquis concern things that an independent country would have to have, like foreign policy, a central bank, its own military – and these could be set up in accordance with EU requirements for membership.

Unfortunately, Alex Salmond/his advisors had decided that the best campaign for Scottish independence would promise the voters that really, nothing much would change, and picked two examplar of stability to campaign for indy: the same Queen on her throne, the same pound in your pocket. Promising that Scotland will become part of the Commonwealth and acknowledge the British monarch as head of state is (even though I’m really not a royalist) quite a reasonable campaign promise – iScotland would be a natural member of the Commonwealth. But promising “the same pound in your pocket” what was changed me from neutral to No in 2014, because keeping the rUK pound as Scotland’s official currency and trading whatever to the UK government to retain the Bank of England as Scotland’s central bank, meant locking iScotland out of the EU, and I was not going to vote for that.

So, I voted No, and so did the majority of those who voted in Scotland, and we remained within the United Kingdom.

No one would have planned to have a second independence referendum in 2020, but in 2016, England voted to Leave the EU, and England’s numerical superiority overrode the fact that Scotland had voted to Remain – again. With a turn-out of 62% in Scotland, 67.2% of those who voted – 41.6% of the total electorate – voted to Remain in the EU.

Scotland and Northern Ireland, the two nations within the UK that voted Remain, had the lowest turnouts compared to Wales or the regions of England: the only region of England that voted Remain, Greater London, also had a comparatively low turnout. My own conclusion for this is that in Scotland, Northern Ireland, and in Greater London, more people saw the idea of a referendum on EU membership as a pointless, frivolous, Conservative Party action – of course the UK would remain in the EU, the Scots, the Northern Irish, and the Londoners thought, because who could want to lose what we’d lose if we left the EU?

It’s also possible, though at this point the likelihood of a proper investigation is close to zero, that social media adverts were used not only – as we know happened – to push the idea that the UK should leave the EU, but also – in regions known to be pro-EU – to push the idea that there was no real point voting.

But, at all events: Brexit was voted for by England, and on 31st January 2020, Boris Johnson, with a majority of 345 English MPs – and 20 from Scotland and Wales – has fixed that the UK will leave the EU. (Yes, Wales also voted by majority to Leave, but if you subtract the entire Welsh Leave vote from the overall results, the total UK Leave vote is still nearly half a million more than the total UK Remain vote: the English voted us out of the EU, no point blaming the Welsh.)

This major change to the UK’s uncodified constitution is supposed by the Sewel Convention to need support from the three devolved governments of Scotland, Wales, and Northern Ireland: all three have voted against this change, but Westminster has decided to ignore the Sewel Convention and go ahead.

According to the terms of Boris Johnson’s withdrawal agreement, Northern Ireland will remain within the EU for customs union and travel – Westminster will have to legislate customs checks at the Irish Sea. This is because the Republic of Ireland, still a member of the EU, and allies such as the US, are determined to preserve the Good Friday Agreement, which brought peace to Ireland after 31 years of warfare in which 3,532 people were killed, 47,000 injured. No one wants the Troubles to return.

Violent nationalist terrorism in Scotland – and it did happen, to a certain extent, in the 1970s and early 1980s, though no one was killed and only one person was injured – was always a minority effort, and indeed, there’s a strong possibility it was all the result of agents provocateurs infiltrating the nationalist movement and attempting to incite violence in order to nsure a UK government crackdown. Violent nationalism in present day Scotland is very much from the right-wing British nationalists who, assisted by bussed-in English supporters, have marched for white supremacy in Scotland and attacked Scottish nationalist marches and demos.

But, very strongly, Scottish nationalism has – certainly since the 1980s – been a matter for peaceful public protest and change by constitutional and democratic means. I do not think this is likely to change for the foreseeable future.

But a significant problem is: Brexit changes the foreseeable future.

Nicola Sturgeon has been clear in her aim to have the next Scottish independence referendum in 2020, and her democratic mandate for that referendum is clear: Scotland voted to Remain in the UK as a EU member in 2014, as the pro-Remain campaign promised us then, and Scotland also voted to Remain in the EU in 2016. Scottish voters have a right to decide if we want to remain in the UK even if that means no more EU membership and the consequent damage to the Scottish economy, or if we want to remain in the EU even though that now means leaving the UK. We do have a right to decide this, but in all honesty, I don’t see that we’ll get it – certainly not before 2021.

To be legally valid under the Sewel convention, a referendum on Scottish independence must be authorised with a Section 30 order from the Westminster government. David Cameron agreed to this in 2012, following the SNP getting a democratic mandate for indyref1: the SNP had promised a referendum on Scottish independence when they’d won two Scottish Parliament elections, and they did so in 2007 and in 2011.

Boris Johnson has been clear he will refuse a Section 30 order for the next 50 years (he can’t: he won’t be in power that long) – and he has the power with an 80+ majority at Westminster and a complete indifference to the UK’s constitutional settlement, to keep saying No.

What happens next depends very much on the actions and interactions of Nicola Sturgeon and Boris Johnson and their respective governments – advisors and ministers.

Nicola Sturgeon could go on asking, for the next four or five years, and Boris Johnson will keep saying No.

Not only does this make Sturgeon look weak (though the continued refusal could push support for her up among independence supporters) the longer the UK is outside the EU, the more damage done to Scotland’s economy, and the more likelihood of divergence from EU standards that would make it more difficult for iScotland to be fast-tracked back into EU membership.

Nicola Sturgeon could go ahead with indyref2 without a Section 30 order.

Boris Johnson could react to that in several ways, of which I think the most likely is this:

Johnson uses his social media campaign team to push the idea in targeted ads that this is an invalid referendum without legal authorisation and there is no point in voting in it. He can count on the London-based media and the BBC to give him full support on this, and at least part of Scottish Labour, and according to Willie Rennie, the wholehearted support of the Scottish Liberal Democrats. If there is a very low turnout in this unauthorised referendum, it will not matter if there is a majority for independence: it won’t constitute a mandate.

Other possible actions which could work, but which would have the net effect of driving up support for independence (and could kick off violent Scottish resistence):

– Johnson could by Act of Parliament declare that Police Scotland was now directly under the authority of the Westminster Home Secretary and the Prime Minister, and give orders to the Chief Constable to shut down polling stations in the event of an independence referendum.

(He would have to give himself the legal authority before giving the order, because Police Scotland comes under the Scottish Government, and if the Prime Minister gave the Chief Constable an order, the Chief Constable would very properly have to confirm this order with the MSP who is Cabinet Secretary for Justice, Humza Yousaf.)

– Johnson could by Act of Parliament extend the Metropolitan Police’s authority in Scotland from “protecting the Royal Family and the Prime Minister” to “doing whatever the Prime Minister says”.

(This would likely require approval from the Scottish Parliament under the Sewel Convention, of course: and I cannot imagine the Metropolitan Police would appreciate their responsibilities being incrased after a decade of Tory cuts.)

– Johnson could by Act of Parliament abolish the Scottish Parliament.

Any of these actions, while constitutionally possible for a Prime Minister with an 80+ majority in the Commons, would likely meet significant resistence in the House of Lords, who do not generally appreciate mucking about on this scale, and would not – as Johnson didn’t list any of this in his manifesto – be protected under the Salisbury Convention unless he held another general election. None of these actions could be carried out at speed: we would see them coming at us in Scotland: and any of them would significantly increase support for independence and kicking off Scottish Troubles.

The only way Johnson would be able to justify acting at speed would be if he could make the case that the Scottish Government is supporting terrorism against the UK state. And, at the moment, he doesn’t stand a chance of making that case.

Nor do I see why Boris Johnson should put himself to such trouble and expense when, if Nicola Sturgeon has no Section 30 order for a referendum, he can reasonably count on the referendum being seen as illegitimate and a low turnout very likely, even without his own social media push.

I’m sure Nicola Sturgeon can see all of this, too.

What if Nicola Sturgeon applied to the courts to make Boris Johnson grant a Section 30 order?

She would need to be very sure of her ground. The mere fact that the UK government has disregarded the Sewel Convention doesn’t in itself justify the Scottish Government disregarding it.

The point at which the Scottish Government has a definite constitutional right to a Section 30 order for indyref2, as determined by precedent in 2012 and as established by long standing principle in the UK, is if in the 2021 Scottish Parliament elections, the SNP have a second independence referendum as a manifesto committment, and win a majority in the Scottish Parliament. At that point, indyref2 is democratically authorised.

(This equally applies if they are a minority government but the Scottish Greens have also got a second independence referendum in their manifesto and are providing the SNP with support on a confidence and supply basis.)

After May 2021, presuming that SNP or SNP/Green are in a majority in Holyrood – five months after Johnson’s transition period ends, when the effects of Brexit will really have begun to bite in – at that point, Nicola Sturgeon’s case for forcing Boris Johnson to give the Scottish Government a Section 30 order is legally unassailable, and the chances that Scots vote for independence and a return to EU membership should be at peak.

That’s when I expect Nicola Sturgeon to have the courts force Boris Johnson to authorise indyref2 – in 2021, not 2020.

But this could be a race against time, if Boris Johnson does proceed to amend the ability of the UK’s constitutional courts to rule against the government, as he threatened in his manifesto. (This too would be unpopular with the House of Lords: expect delays.)

That’s where I think we are.

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Filed under Brexit, Scottish Constitution, Scottish Politics

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