Looking at independence through Brexit

EdinburghEye on Ko-FiThis was first posted on Facebook on 25th January 2021, with support from my Ko-Fi network.

Twenty-five days ago Brexit happened, and a few days ago I listened to a Byline news video of a fisherman talking about his vote for Leave, his support for Leave, and his subsequent disllusionment – How he had been lied to about the grand possibilities of Brexit – How if he could turn back time, he would vote to Remain.

And I thought about Scottish Independence.

The SNP is likely to win an absolute majority in the Scottish Parliament in May: with the Scottish Green MSPs the majority for MSPs in the 129 MSP Scottish Parliament could be close to two-thirds.

There is general agreement in Scotland – even among those who plan to vote No – that a majority of independence parties in Holyrood after May, is a democratic mandate to hold an independence referendum. If a referendum were held tomorrow, the polls say independence would win by a small margin – 52%-48%. (Throughout the period of campaigning for the first independence referendum, the polls always indicated No would win.)

Yesterday, at a virtual National Assembly of the SNP, the 11-point plan to hold a referendum legally was presented to over a thousand of the membership, and published online. (The legislation to hold a referendum was put on pause last March, to enable government and Parliament to deal with the pandemic.) If the UK government refuse the Section 30 order in Westminster or refuse to acknowledge the Scottish government’s right to hold a referendum without approval from Westminster, the Scottish government will challenge that in the courts.

The key point in the plan is this:

“If the SNP takes office the Scottish Government will again request a Section 30 order from the UK Government believing and publicly contending that in such circumstances there could be no moral or democratic justification for denying that request. If the UK Government were to adopt such a positionits position would be unsustainable both at home and abroad.”

George Osborne wrote in the London Evening Standard a few days ago, that it was clear to him – having lived through two referendums at the heart of Tory government – the only way the UK government could win another independence referendum for Scotland was not to allow it to happen – to refuse a Section 30 order and to pursue the SNP leadership and prosecute them if they carried out an independence referendum “illegally”.

As the SNP clearly and rightly note, the question of whether the Scottish government, having gained a democratic mandate from the Scottish people, have a right to hold a second independence referendum, is a separate matter from whether the Scottish people vote Yes or No to independence in that referendum.
That is an option open to the UK government. At some point, there will come a time when the Scottish referendum will end up in the courts, and it could be that Boris Johnson will attempt to prosecute the Scottish government for unlawful spending of public money, or (thought it is less clear to me on what grounds) simply for holding a referendum which the UK government haven’t authorised but the Scottish government have.

This is a question about the UK constitutional settlement, and the appropriate place to decide that is in the courts – as we saw in the question of whether the Prime Minister can invoke Article 50 without Parliamentary approval (no), or whether the Prime Minister can prorogue Parliament purely to avoid Parliamentary scrutiny of his Brexit negotiations (no). As discussed here previously, these were constitutional questions that had not arisen before and were decided by the UK’s Supreme Court.

The difficulty for the courts will be that democratically, it is hard to argue that if two-thirds of the Scottish Parliament are pro-independence MSPs. the Scottish government doesn’t have a mandate – and the difficulty for the Tories will be that every argument they make against allowing the Scottish government to hold the referendum, every anti-Jock article in the right-wing London media, is likely to grow rather than diminish Scottish support for independence. (It will also, of course, directly contradict the arguments they made for Brexit, but much they’ll care about that.)

I am not a constitutional lawyer, but, looking ahead, what I can see the UK Supreme Court deciding is that Holyrood is entitled to decide to hold a Scotland-wide referendum if the Scottish Government has a clear democratic mandate for doing so, but also ruling that – according to the Scotland Act which established the Scottish Parliament – this result of this referendum need not be binding on the UK government at Westminster unless it is made so by the Westminister Parliament voting on a Section 30 order.

Declaration of ArbroathThe consequences of this decision (assuming that’s how the Supreme Court decide) is that the referendum would happen, but Boris Johnson (or whoever is Prime Minister at that point) would announce that even if Scots vote overwhelmingly Yes for independence, the UK government would ignore the result. The difficulty then, in all honesty, would be to get a high enough turnout for a No vote that the results would have a strong standard of legitimacy by international standards – if 80% of the voters turn out and Yes wins by a significant majority, that is Scotland saying clearly the electorate want to be independent. Westminster can say they will ignore it, but it will still be a fact.

That the Tories see this as clearly as I do, is in my view indicated by the fact that they are already calling on Labour and the LibDems to join them in boycotting any independence referendum not authorised at Westminster, and calling it a “wildcat vote”.

The plan is to hold the referendum “post-pandemic”, but early in the next term of the Scottish parliament (2021-2026) – likely, at this point, to be in 2022 at earliest. I don’t think that having a referendum in 2022 is a sure thing – but supposing that it goes ahead, let’s consider what next.

The feeling of the UK government, especially if they put up a very strong resistance to Scotland being able to hold the referendum at all, will be very much against Scottish independence.

I voted No in 2014, because Salmond was pushing a form of “independence” without a central bank or our own currency, which I considered to be disastrous (and had Yes won, I note, iScotland now would be tied to rUK, locked into a disastrous long-term deal that locked us out of the EU).

But in 2016, England voted by a small majority to Brexit (and Wales by an even smaller majority) and the numerical size of the English vote compared to the Scots and Northern Irish voting Remain, meant the UK “as a whole”, had voted to Leave, so we kept being told. (The vote was close to 50-50, the referendum was advisory, and any Prime Minister with a spine and common sense would have declared it impossible to fulfil and ended his political career with a resignation speech explaining that: but we had David Cameron.)

As we can see, the magical promises of wonderful Brexit were not fulfilled, not least because for four years the UK government went at Brexit without a plan – making grandiose statements and bellicose press releases, but very much reacting to the EU. But mostly, because the EU leaders not only met and planned out their strategy in the autumn of 2016, but the UK always needed the EU more than EU needed the UK. The UK never had the upper hand in the negotiations.

My understanding of this is limited, so bear with me: when iScotland separates from rUK, there will be a division of national wealth and national debt according to the populations of the new country and the successor state, and this and many, many other things will have to be negotiated by the Scottish Government with the UK government.

The UK government is neither good at negotiating, nor will have any goodwill at all towards Scotland, and there are only a very few things that Scotland has that the rest of the UK actually needs – oil, Faslane, land ownership, maritime boundaries. (Whisky, gin, and salmon, I presume, all come under the “nice to have” list.)

Scotland’s largest trading partner is England. Post independence, iScotland would need a trade-and-more deal with rUK as the UK needed one with the EU, and – assuming the same crew are still in charge – would have the same difficulty getting rUK to the table to negotiate sensibly as the EU did. The EU had the advantage all along of being collectively the much bigger economy, and planning for years how they would collectively manage if there was a no-deal Brexit.

The SNP’s own assessment of post-independence Scotland was that it would lead to a decade of the country being worse off than before, and I think that is very likely true. Frictionless trade between England and Scotland will disappear: we might manage as soft a border as between Northern Ireland and rUK as of 1st January, but even that is causing delays.

Brexit, however, means the UK – and Scotland as part of the UK – will be very much worse off than before, and with no end in sight. Boris Johnson’s Brexit deal is just how things are now. And it looks as if the English are quite likely to re-elect themselves another Tory government in 2024, despite how the Tories have been performing since 2010. We are better off out of that, in the long run.

Crucially, the key benefit iScotland could point to, that would apply – I hope – very shortly after independence, is that iScotland could become a member of the EU again, and gain access to the markets lost with Brexit. So long as the UK remains in regulatory alignment with the EU, iScotland easily qualifies to be a EU member – and Boris Johnson’s trade deal binds the UK to remain in regulatory alignment or start paying much higher tariffs on goods.

This too is evidently something the Tories see clearly, since another campaign of theirs is to try to convince one or other EU country to veto Scottish membership, or to urge Scots to believe that there is no way the EU would ever let Scotland join.

This, though, is one thing iScotland doesn’t have to fear. Before Brexit, I was confident that if Scotland qualified by the chapters of the acquis (and only Alex Salmond convinced me that we wouldn’t) of course the EU would admit us as a member. Post-Brexit, I think the EU would eagerly welcome us in – not only for ourselves, but as a dignified, civil, and indescribably smug message to the Tories in Westminster about what they have done to the UK with Brexit.

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Filed under Brexit, Politics, Scottish Politics

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