The Independence Hurdles | (Still) Yes Highland

There is no doubt that the UK is heading on a downward spiral with: an incompetent right-wing Prime Minister in charge, the economy in peril as we (possibly) crash out of the Single Market & Customs Union and a Westminster government power grab. In Scotland we have a get out of jail free card in the form of achieving independence, but we have some hurdles to overcome before we achieve it.

It might be argued that achieving a Yes vote would be the biggest hurdle, but with a good campaign and lessons learned from 2014, a future referendum would be eminently winnable. This very winnability contributes to one of our biggest hurdles. It is likely that former UK Prime Minister David Cameron only agreed to have the 2014 referendum because he thought he would easily win any plebiscite^[1]. In 2012, prior to the Edinburgh Agreement, support for independence was polling around 28%. From September 2014 onwards polling support for Indie has consistently been in the mid-to-high 40s. In fact, it is quite remarkable that without an official Yes campaign, while at the same time sustaining a barrage of anti-independence messages from the mainstream media, support hasn't diminished but even crept up a little. The reason our opponents are so vociferous in their calls for no more referendums is that they know they are quite likely to lose the next one.

Theresa May, and whoever succeeds her as Prime Minister, is unlikely to accede to a request for a Section 30^[2] precisely because this time they may well lose the referendum. May's "now is not the time" excuse could be continued indefinitely. The Scottish Government could hold a referendum without a Section 30 but it is guaranteed that our opponents would portray a Yes vote as invalid in such a situation. Furthermore, a referendum without a Section 30 would, almost certainly, lead to protracted legal challenges^[3] leaving the result uncertain and international recognition would be stalled. We only need to look at the current situation in Catalonia to see the problems a non-binding referendum could cause. There is also the possibility that without a Section 30 some Unionist controlled councils may refuse to participate in a referendum.

Shortly before the last UK General Election, the First Minster, intimated several times that the Scottish Government had a plan to either force the provision of a Section 30 or had a workaround for not having one. The details of this plan were never made public. Ben Macpherson MSP (SNP) asked the FM:

Does the First Minister therefore agree with me that the principle clearly remains that Scotland’s future should be for the people of Scotland and this Parliament to decide, and that the section 30 request should remain on the table?

Ms Sturgeon's answer included:

On the issue of a section 30 order, I am saying today that we are not immediately introducing an independence bill to the Parliament. Therefore, the urgency of agreeing that section 30 order is not what it was previously. As a matter of principle, however, that power to decide the question of if and when there should be an independence referendum should be transferred from Westminster to the Scottish Parliament, and everybody who cares about the rights of this Parliament to take these decisions should back that.

Does the plan rely on the Scottish Government winning an argument based on matters of a democratic princple? Recent Westminster actions involving The Vow, EVEL, the most recent Scotland Act and The Great Reform Bill doesn't suggest it is an argument the Scottish Government would win.

This neatly brings us onto the second major hurdle to independence: the governing party needs to decide to actually have (or at least support having) a referendum. I don't think the Scottish Government legislating for a referendum before the end of the Holyrood parliamentary term (May 2021) is a given. The following is a snippet of the statement given by the First Minister, to the Scottish Parliament, on June 27th, 2017:

At the end of the period of negotiation with the EU, which is likely to be around next autumn, when the terms of Brexit will be clearer, we will come back to Parliament to set out our judgment on the best way forward at that time, including our view on the precise timescale for offering people a choice over the country’s future.

The FM has committed to making another statement to Parliament by autumn 2018, but the "precise timescale" for a second independence referendum was left un-stated. It would certainly be the case that there are many senior people in the SNP who support a referendum before 2021 but that possibly isn't a universal view. The SNP isn't just a party of independence but also one that wants to govern and some might feel that its electoral interests are best served by not having a referendum before 2021. It might also be the case that some in the SNP believe a referendum before 2021 wouldn't be winnable. For example, there are still many SNP supporters arguing that a referendum shouldn't be contemplated until Yes support, in the polls, reaches 60%. The campaign that ran from 2012 to Septemeber 2014 raised Yes support from 28% to 45%. Proponents of the 60% view somehow believe that Yes support would increase by another 12-15 points without an official campaign, this seems extremely unlikely.

The timing of the second independence referendum is crucial for several reasons. Most importantly, there is no guarantee that there will be a pro-independence majority in Holyrood after the elections in May 2021. Secondly, it would make more sense to have the referendum while we are still in the EU, although the nature and length of the transitional period could have an impact on the timing. Even if the IndieRef2 campaign made a committment to a future EU in/out plebiscite that would be best done while we were still members. Thirdly, we would probably want to have the same franchise as in the first referendum, including the entitlement of EU citizens to vote. The status of EU citizens hasn't been formally agreed between the UK and EU and that includes all rights, not just voting.

So, there we have two fairly difficult hurdles to overcome before we can achieve independence. Those of us who would like a referendum (well) before 2021 need to apply some pressure on the Scottish Government to ensure they select that option. Then all we need is a strategy that will extract a Section 30 from the Westminster government.

Answers on a postcard in the comments section (below) as to how we can achieve these two objectives.

Notes

James Kelly has argued that David Cameron agreed to a Section 30 because the Scottish Government were threatening to go ahead with a referendum without one. I don't think James' analysis is correct. It is more likely that Cameron saw an opportunity to kill-off independence by comprehensively winning an official referendum. The No side did win, but not comprehensively. Cameron thought he could repeat the trick with the EU referendum, but this time he lost.
A Section 30 is a shorthand to describe the transfer of a reserved power from Westminster to Holyrood. The best known Section 30 was the one that allowed Holyrood to conduct a binding referendum in 2014, as defined in the Edinburgh Agreement. A Yes result would have been binding on both Holyrood and Westminster, and crucially also recognised internationally. The name is used as this type of transfer was defined in Section 30 of the Scotland Act, 1998.
The legality of a referendum without a Section 30 would almost certainly be tested in court(s) and, therefore, the resolution might be a long time coming.