Scotland’s first minister, Nicola Sturgeon, has announced plans to hold a second referendum on Scottish independence in October 2023. Anthony Salamone writes that with the UK government opposed to holding a new vote, the plan represents a major gamble for Sturgeon and the SNP.
Last November, Nicola Sturgeon – leader of the Scottish National Party (SNP) and first minister of Scotland – declared in a speech to her party’s conference that, in the year ahead, she would “initiate the process necessary to enable a referendum [on Scottish independence] before the end of 2023.” At the time, the details of that process were a mystery. The uncertainty is now over. In June, Sturgeon presented to the Scottish Parliament her long-awaited plans for holding a new Scottish independence referendum. The strategy which she outlined has five main elements.
Elements of the referendum strategy
Its centrepiece is draft Scottish legislation for a referendum, which was published on the same day that the strategy was announced. According to the Scottish government, this bill, if passed by the Scottish Parliament, would underwrite the referendum. The SNP does not have a majority in the parliament, but the Scottish Greens also support both holding a referendum and Scotland becoming independent (and the parties have a cooperation agreement). With the backing of the two parties, the Scottish government has the votes to pass the legislation as a foregone conclusion. The bill includes the government’s proposed referendum date: 19 October 2023.
Several weeks before the parliamentary statement, the Scottish government launched its campaign to increase public support for independence. The campaign is based on a series of papers, called Building a New Scotland, which is supposed to form the government’s revised case for independence. Two papers have been published to date; the rest are expected in the months ahead. A collection of papers is a departure from the approach used for the 2014 independence referendum, when the government produced one large 650-page white paper, Scotland’s Future.
On the day that the bill was published, Nicola Sturgeon also wrote to Boris Johnson, the outgoing UK prime minister. In her letter, Sturgeon reiterates some of the points of disagreement between the Scottish and UK governments over holding an independence referendum – the former wants a referendum and the latter does not. The letter mentions a willingness to negotiate a referendum agreement, but mainly does so as a formality in passing. In reality, the referendum dispute between the two governments has persisted largely unchanged since 2017. The day before he announced his resignation, Johnson replied, reiterating his opposition to a new vote.
Because of that disagreement, the Scottish and UK governments are not currently cooperating on the referendum issue. In particular, the UK government has not put forward a so-called Section 30 order, a statutory instrument which was used to provide the UK state’s endorsement of the 2014 referendum. Since that endorsement does not exist now, it is unclear whether the Scottish Parliament has the competence to pass the Scottish referendum bill without it.
Accordingly, Nicola Sturgeon asked Dorothy Bain, the lord advocate (the Scottish government’s chief legal adviser), to refer the bill to the UK Supreme Court to clarify the competence question. Bain made that reference when the bill was published. The case is currently in progress – the Supreme Court will consider whether it should answer the question and what its answer would be. It had been widely expected that, if the Scottish Parliament passed the referendum bill, the UK government or a private party would have challenged it in court. Instead, Sturgeon has sought to pre-empt that challenge by asking for the reference herself and seeking a ruling before the bill is passed.
In addition to the proposed referendum in October 2023, Sturgeon announced a contingency plan. This plan would apply if the Scottish government were unable to hold a “lawful” referendum – because the Supreme Court ruled that the Scottish Parliament did not have the competence to pass a referendum bill without the UK government’s approval and it refused to provide such approval.
Instead of a referendum, the SNP would treat the next UK general election as a “de facto referendum” on independence. If the party won a majority of Scottish seats or a majority of the votes cast in Scotland (the exact standard to be applied is unclear), the Scottish government would seek to begin negotiations with the UK government to make Scotland an independent state. This proposal is unorthodox and a departure from the SNP leadership’s traditional approach.
Response to the referendum dilemma
The Scottish government’s entire referendum strategy traces back to its ongoing dispute with the UK government. The two governments agreed on holding the 2014 referendum and they worked together to deliver it. That consensus does not exist now. In its absence, the Scottish government faces a referendum dilemma: it wants to hold a vote that could genuinely lead to independence (and then for Scotland to become independent), but the UK government opposes both prospects.
After years of continued stalemate and relative inaction, Nicola Sturgeon’s strategy is boldly majoritarian. Notably, it prioritises satisfying existing independence supporters. The strategy meets the most frequent demands made by the independence movement over recent years, including setting a referendum date and adopting a contingency plan (called “Plan B”). The premise of treating a UK general election as an independence plebiscite used to be a fringe concept widely dismissed by the SNP leadership. It is now Scottish government policy.
Moreover, the strategy discards the idea of building cross-party support in Scotland for an independence referendum. Today, only pro-independence parties support a referendum. By contrast, all major Scottish political parties backed the 2014 referendum, regardless of their views on independence. The SNP apparently considers a simple majority of the Scottish Parliament to be desirable enough, and the strategy includes nothing to encourage negotiation or compromise with pro-UK political parties in Scotland. Nevertheless, cross-party support would be in keeping with precedent, give a referendum greater credibility and promote wider acceptance of its result.
On the court case, the strategy seeks to frame the debate on the legal competence of the referendum bill to the Scottish government’s advantage. Its argument is that the Scottish Parliament can legislate for a referendum because the vote would be consultative — that is to say, it would not make anything happen legally on its own.
The actual issue, however, is whether Scottish institutions can hold a unilateral referendum without the approval of the UK government. In the months ahead, the Supreme Court may provide legal clarity on the latter point. In a sense, the Scottish government has already prejudged the case. In her parliamentary speech, Sturgeon said that, if the government lost the case, it would be “the fault of Westminster legislation” – implying that only one right and acceptable answer exists (to permit the bill and a referendum).
Most significantly, the strategy offers no meaningful steps to resolve the referendum dispute with the UK government or to improve bilateral relations between the two administrations. To date, the Scottish government has made only perfunctory efforts to secure referendum negotiations. In fact, the SNP has increased its rhetoric against the UK government even further, calling its opposition to a referendum a denial of democracy. The unmistakable impression is that the Scottish government believes that it can somehow steamroller the UK government. Despite being defined by the referendum dilemma, its strategy does remarkably little, if anything, to address it.
Outlook for an independence referendum
In contending with the independence issue, the SNP leadership is governed by two competing motives. On one hand, the SNP’s mission as a political party is to deliver Scottish independence. The government believes that it has a strong electoral mandate for a referendum, and the independence movement has grown increasingly impatient at the apparent lack of progress on the matter. On the other hand, the leadership places a very high premium on respectability. The imperative to be seen to be acting properly (and progressively) is a core motivation, and the government remains committed to holding a “legal” referendum, despite the years of impasse.
The Scottish government’s referendum strategy addresses both motives, but arguably favours the former. The bet is that its five elements – the referendum bill, independence campaign, non-negotiation with the UK government, Supreme Court reference and de facto referendum – will ultimately result in a genuine path to independence for Scotland. However, the challenges are considerable.
The Scottish government’s campaign might not increase support for independence, which is fairly evenly split. The UK government could remain committed in its opposition to a referendum. The Supreme Court could rule that the Scottish Parliament does not have the competence to pass the referendum bill, or it could decide not to rule on the matter. The plan for a de facto referendum could be rejected by other Scottish political parties and the UK government.
On closer examination, inconsistencies in the referendum strategy also emerge, raising questions. How does the Scottish government intend to achieve independence when it barely has a working relationship with the UK government on the subject? Why has the Scottish government launched a major independence campaign when a referendum has not been agreed with the UK government? Why is the Scottish government willing to treat a UK general election as a de facto referendum, when that premise has no legal basis and it said that it would only support a legal referendum? Why does the Scottish government believe that the UK government would agree to negotiate independence after a de facto vote, given that the latter does not even support a referendum?
At this point, it remains unclear whether or when a bona fide Scottish independence referendum will take place. After years of stalemate on the issue, we could now witness months of rancour. With the publication of further white papers, we may also finally see how the Scottish government proposes to address the post-Brexit challenges of independence, on which it has provided little detail to date.
In any event, the most overlooked reality of this entire debate is that the referendum dispute is a political problem and it would require a political solution. Whatever the outcome of the court case, Scotland would still need the UK state to agree to negotiate independence and to recognise it as a state (both of which are the UK government’s choice). A viable route to Scottish independence would always require substantial political cooperation between the Scottish and UK governments. At its core, Sturgeon’s referendum strategy seeks to create an independence pathway without that cooperation. In that regard, the strategy is a roll of the dice.
Note: This article gives the views of the author, not the position of EUROPP – European Politics and Policy or the London School of Economics. Featured image credit: Scottish Government (CC BY 2.0)
Do people really get paid for writing this sort of stuff? It’s a curious thing to not mention the UN and self-determination. In the end of the day, the UK gov’s only strategy is to prevent what Scottish people voted for. It’s not what you;d call ‘democratic’ by any stretch of the imagination.
Scotland was an separate sovereign independent country for centuries before England was first forced together by war. It has a written constitution. As such it jas the right to run its own affairs by ending the union unilaterally, by simple declaration of independence, similar style to the US.
Both your points above are of course valid.
However, I don’t think that was the material focus of the piece.
Insupport Independence and have done for 50 years but we need to open about the challenges , political or otherwise, if we are to gain overall support.
I’ve also supported independence basically since about 2013. I would like the UKSC to hold it is within competence, only for the Westminster Parliament a day later to pass legislation un-doing the Court’s decision (literally needs a one line bill). They’ve done it with other (admittedly less controversial) issues where the UKSC has held one thing, and Parliament has just legislated the Judgment away with a one line bill. However – this would really hold Westminster feet to the fire and force them to undermine the UKSC by cheating and legislations the decision away (Westminster is perfectly entitled to do so under present legislation). In a way that could be an ideal outcome because (a) it gives the SNP the delay they sorely want (they don’t want 2023 when the polls between 2020 and 2022 which show a plurality narrow support for independence, but that’s gradually settled into straight 50:50 in most polling. I was looking forward to British Social Attitudes Report, which has huge sample sizes and is way more accurate than silly 1000 people polls (and I say that goes both ways – remember those 2/3 polls where it said Yes was on 58%). The BSA says it’s 52:38 (Yes to No) with 10% unsure or not voting. Assuming all of that 10% vote No, 52% to 48% isn’t a great starting point is it, we saw that with Brexit and it was a nightmare.
The Plebiscite is a foolish and terrible idea for many reasons. Firstly, it requires pro-independence parties to obtain 50% plus. That has happened exactly twice – firstly in 2015 when the SNP got 51% (on a manifesto that explicitly mentioned moving on, and didn’t have indyref in it!!) and the 2021 Scottish Elections on the List when Independence parties got 50.5% and Unionist parties got 49.5%. Those were elections where no one suggested the vote itself ought to give rise to UDI. It’s an incredibly tall order, for the SNP and Greens (and I suppose the minor parties like ALBA) in a Westminster election to get over 50%.
The second reason it is foolish is because it lets the Unionists have it both ways. Even if, say, 54% of the votes go to SNP/Green/Indy Minority Parties (a tall order), they can say it’s a plebiscite of no legal effect and will scream about it being illegal or improper.
If, however, say 49.5% of people vote for Independence Parties, and Lab/LD/Tory get 50.5%, then the Unionists and Westminster will say it’s a “definitely legally entirely recognised and proper process of which there could be no doubt/it was a gold standard process- we were on board the whole time and it basically was a referendum and WE WON for a second time, wooo go us.”
With a plebiscite get to say whatever they like either way, and either way they get quite a potent political argument/upper hand.
Also – the whole strategy sets us up for failure even when independent. Let’s imagine Scottish Parliaments gets everything it wants – a successful plebiscite where Westminster suddenly says “Ok Fine well we have to respect that – let’s talk negotiations. If a majority of votes in a plebiscite in 2024 is sufficient for independence, then a simple majority of votes in any future Scottish General election will be claimed as a mandate for reversing and rejoining the Union. It means that for at least 10 years, we will have all Scottish elections framed around rejoining the UK, calling for “UnionRef” or “RejoinRef”. Labour in particular will never ever accept the results and will certainly campaign with the Tories in each new Scottish Election (2026, 2032, 2038) to rejoin the UK. It’s all they know – the Scottish branches of UK parties are single issue entities – independence. They have no other purpose or serious policy platform (maybe because they never will/never expect to be in power within a devolved Scotland in the Union). The idea that Ian Murray, Jackie Baille, Murdo Fraser, Alex Cole Hamilton, Annie Wells etc will suddenly just say “yep independent now I guess we will just move on” – fantasy land. They will do everything and anything they can to undermine the success of a newly independent Scotland so as to make a case for rejoining UK.
I don’t see that it has much to do with international law unfortunately – we aren’t in a Kosovo type scenario, and all of the principles the SNP cite in their submission to the UKSC do not mean that ‘a people’ have right to hold referenda at will/whenever they like and that in every case it’s denying international law if a State says “no” – see Canada or Spain. It is obviously a matter of fact and degree but ultimately even if the international law position were as wide as this, the UK flouts international law all the time and there aren’t civil or public remedies which flow from that (well not in this sphere we are talking about).
I firmly believe in independence, but I want it for real and on a sensible basis. That is an agreed (or at least tolerated – see Canada/Quebec II) referendum. Anything else either won’t deliver actual independence or is doomed to reversal and failure due to the very strong but disunited Unionist politicians for whom this is a burning passionate issue. Ian Murray said he’s quite happily destroy the Labour party if it stopped independence. Joe Swindon (remember her?) the apparent “leader” of the Remain cause up to GE 2019 – she was asked “No Deal Brexit or Indyref2 if you must pick one only”. Much to the annoyance and aggravation of her English support base she said “I’d pick No Deal Brexit every time – hands down”. Not exactly inspiring from the supposed leader of the anti-Brexit front (that role in reality ended up being filled by the SNP).
Anyway – nope! No plebiscites and I won’t be taking part unless it’s a domestically legal referendum (by approval of UK Supreme Court or agreement with Westminster). I think Nicola Sturgeon has bowed to pressure from independence supporters (most of whom are not even in the SNP) who were already going to vote Yes anyway. We could genuinely persuade 55% if it was done sensibly on a slow burn. “Gradualism” used to be the watchword and SNP policy, and is what I support. There is no point in becoming independent in like 2024 only for it all to be reversed by 2026 either during a transition period (see “Peoples Vote” campaign post Brexit) or shortly thereafter. I’d be happy to wait till 2026-2030 with a better process which won’t instantly be undermined personally, and where we’ve had the time more properly to make the case in our new dystopic post Brexit Britain.