The SNP says it has a ‘roadmap to a referendum’. Over the weekend, constitution secretary Mike Russell published an 11-point plan for a plebiscite on independence ‘that is beyond legal challenge’ and would be held after May’s Holyrood election.
The wheeze is that, unless the UK Government accedes, the SNP-controlled Edinburgh parliament would simply pass a Bill to hold one and, in effect, dare Westminster to try and stop them. The details can be ironed out, Russell allows, but ‘what is absolutely not for discussion is the fact that if Scotland votes for a legal referendum on 6 May this year, that is what it will get’.
I’m sure his roadmap is very bright and shiny but Russell might want to stick a postcode into his GPS: SW1A 0AA. That’s the Palace of Westminster, where the decision about any future referendum will be taken.
The roadmap itself should be recognised as a pre-election stunt to drive up the SNP vote. If Nicola Sturgeon was serious about this gambit, she wouldn’t leave it in the hands of a minister just weeks away from retirement. She would also be providing us with legal opinions confirming not only that such an approach would be lawful but that police and returning officers could participate in any referendum so held without opening themselves to prosecution.
The First Minister is many things, but daft isn’t one of them. She saw what happened when the Catalan secessionists tried to hold a wildcat vote in 2017. She saw, too, how slow the European Commission was to voice the mildest concern even as Madrid’s Guardia Civil knocked lumps out of Catalans outside polling stations live on CNN.
Westminster’s methods would be much daintier and ministers could ride out whatever international rebuke might come, knowing that Madrid won by standing firm and that, after the grim scenes on Capitol Hill, world leaders are newly nervous about nationalist insurrection on their own streets.
The Court of Session is hearing a case brought by an independence supporter that the Scottish parliament already has the power to hold a referendum. Litigating your way to sovereignty is certainly novel and it is possible that the question ends up before the Supreme Court. It is even possible that the justices of Middlesex Guildhall take it upon themselves to grant Holyrood power over the UK constitution.
Possible, but not likely. For one, an Act of Parliament could swiftly re-establish parliamentary sovereignty in the wake of such a decision. For another, it would be the last case the Supreme Court ever heard.
At the nucleus of the SNP’s efforts to circumvent the devolution settlement is an abuse of the concept of democracy. Not only full-fat nationalists but those whose idea of devolution is diet nationalism contend that it would be ‘undemocratic’ for the UK Parliament to refuse a Section 30 order for another referendum if the SNP wins in May. Although it chimes with an unfortunate trend towards referendums in recent decades, this direct democracy is at odds with our system of parliamentary government.
The proposition that the popular will can assert itself over a reserved matter during a devolved election is populism of the kind its proponents denounce everywhere else in the world. Nor can they pick and choose which constitutional matters can be shoehorned into Holyrood politics.
Imagine a scenario in which the SNP took a very different stance on criminal justice than it does today. Nicola Sturgeon declares that murderers should pay the ultimate price for their crimes and so Scotland should restore capital punishment. Scotland cannot do so at present because the UK is a signatory to the European Convention on Human Rights, which says: ‘No one shall be condemned to such penalty or executed’.
As such, Sturgeon announces, the SNP will commit in its manifesto to a referendum asking if Scotland should derogate from the ECHR in order to reintroduce the death penalty. If the Nationalists then win a majority of seats at Holyrood, and perhaps a series of polls show strong support for capital punishment, on what basis would the UK Parliament refuse a Section 30 order? That treaty obligations are a reserved matter? So is the constitution. That Scottish derogation would mean UK derogation and expulsion from the Council of Europe? Independence would mean the dismantling of the UK itself.
The assertion that a mandate for a reserved matter can be acquired in a devolved election masquerades as a democratic principle when it is the exact opposite. The devolution settlement Scotland voted for, and which has been expanded by the UK Parliament, is based on a division of powers between Westminster and Holyrood and legal mechanisms for transferring competencies as deemed necessary.
If devolved elections grant mandates over reserved matters, there are no reserved matters — only matters that have yet to be devolved. In embracing this logic, the devo ultras give the game away and vindicate Tam Dalyell’s prophesy that ‘we are on a motorway without exit to an independent state’.
Even now, it is possible to apply the brakes. Downing Street should not be spooked by Nicola Sturgeon’s latest exercise in pandering to her increasingly impatient followers. Absent an ill-advised spot of judicial activism, the constitution is reserved to Westminster. The Prime Minister can continue to say No. He could say it Scots if it helps: the game’s a bogey.
However, just because ‘No’ is sufficient, it should not be the extent of the Prime Minister’s response. For almost a decade, the threat of Scottish independence has been looming over the UK and it has largely been viewed as a political problem. Now that we have left the EU and are forging new trading relationships, separatism risks becoming a threat to the UK’s bottom line.
The more the Nationalists clamour for a referendum, and especially if their grousing is accompanied by some grassroots-pleasing choreography, the greater the chance that the UK comes to be seen as a risky place to do business. Who wants to sign a trade deal with a country that could soon lose almost one-in-ten of its population? Who wants to invest in Scotland for access to the UK market, only for that access to disappear within a few years?
Since 1999, Conservative and Labour governments have dripped with indifference and indecision on the constitution; only the otherwise wobbly Theresa May stood firm. Predictably, Westminster’s weakness has emboldened the separatists and ensured that, more than six years on from winning a referendum on independence, ministers are still dogged by the prospect of the UK disintegrating on their watch.
They could continue their timorous approach, or they could man up and put an end to all this uncertainty. To do so, though, would require a good deal more steel and self-confidence than has been in evidence at Westminster for some time.
The UK Government has to stop seeing independence as a Scottish breakaway and recognise that it would be the break-up of Britain. Polling published yesterday showed that not only do half of Scots want another referendum in the next five years, 51 per cent of Northern Ireland wants a vote on leaving the UK and becoming part of the Irish republic. Even in Wales, where separatist sentiment is at its lowest, opposition to a referendum commands only a plurality, not a majority. Scottish independence would be the falling of the first domino.
The Lenin question, then: What is to be done? Some advocate a Canada-style Clarity Act outlining the terms under which a constituent country of the UK would be allowed to secede. While this would remove much of the current uncertainty, it begins from a flawed premise: that independence is inevitable but it must be carried out in a proper fashion.
I have previously argued for a new Act of Union, which would not only be more comprehensive than a Clarity Act, but would begin from the principle that the United Kingdom should continue to exist. Independence would not be rendered impossible but the strengthening of the Union would be at the heart of the legislation. That means more than erecting legal hurdles; it means fashioning a new British culture, identity and values that can unite all parts of a modern nation.
Downing Street should not be tempted to follow the SNP down its dead-end roadmap. The Prime Minister should say it firmly and early on: there will be no independence referendum in the next term of the Scottish Parliament. Then his government should let the Scottish Tories fight the May election on devolved issues. While they do, Whitehall should begin in earnest drawing up a plan for a reformed devolution settlement that respects the results of past referendums while securing the long-term future of the UK.
Originally published in the Scottish Daily Mail. Letters: scotletters [insert @ symbol] dailymail.co.uk.