In political combat, treat even your opponents’ empty threats as real. Unionists should bear this principle in mind when approaching the SNP’s sabre-rattling about securing a second independence referendum in the event of a Nationalist majority after May’s Holyrood election.
I remain of the view that Nicola Sturgeon is bluffing to pander to her diehards, but cynicism is no excuse for complacency. Unionists haven’t the foggiest how to counter Sturgeon’s strategy.
Labour and the Liberal Democrats are making like ostriches and suddenly finding something very interesting in the ground that requires immediate attention. From Whitehall there is a deadly broth of ignorance, indifference, avoidance and fear.
Scottish Tory leader Douglas Ross rails against an ‘illegal referendum’ and, asked by Andrew Neil last week whether SNP ministers should face criminal charges if they proceed with such, ominously replied: ‘They have to be answerable for their actions.’
This matter could do with a little more light and a lot less heat. Ross seems to consider the SNP’s plan as analogous to the unlawful referendum held in Catalonia in 2017 and he is not alone. The Nationalists meant for this to be the conclusion drawn by friend and foe alike.
The intended audience for their proposal is their grassroots, who have grown impatient with Sturgeon’s failure to produce another vote despite much rhetoric. The hope among SNP strategists is that, by implying a Catalan-style wildcat plebiscite lies on the other side of May’s election, disgruntled supporters will turn out once more and heed the hoary plea for ‘both votes SNP’.
In fact, all the Nationalists are committing to is seeking a Section 30 order (a constitutional thumbs up from Westminster) if Holyrood returns a pro-secession majority. If not, they claim, they will press ahead with a referendum Bill and dare the UK Government to try to stop them in court. There is no provision in the road map for holding a referendum if the courts side with Westminster.
This dunts us along the path this controversy is inevitably heading. The Catalan referendum was not unlawful because the central government said so, but because the Spanish Constitutional Court did. Carles Puigdemont’s administration pressed ahead regardless and the world was treated to ugly scenes as Madrid sent in the police to frustrate the vote.
Spain’s constitution is ‘based on the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards’. The UK has no such provision, so while the dominant theory of devolution is that the constitution and referendums that implicate it are reserved to Westminster, the question has never been tested in court.
Downing Street has some experience of humiliating reversals at the Supreme Court but it seems perilously unperturbed by the possibility of another. It proposes, simply, to just say No.
There is much prating from Nationalists that denying a referendum would be ‘undemocratic’. Popular sovereignty is a perfectly respectable theory of democracy but one at odds with the Westminster model in which sovereignty resides with the Crown-in-Parliament under God.
That might sound stuffy to modern ears but it is the basis on which Parliament proceeds when it legislates. Far from being undemocratic, Westminster would be upholding the devolution settlement Scotland voted for, a settlement that distinguished reserved from devolved issues and vested the former in the UK Parliament.
There is already a democratic means for bringing about another independence referendum: the SNP needs to convince MPs to vote for one, something it could try to do in exchange for supply and confidence in a hung Parliament, which was the outcome of two of the last four general elections.
Instead, it wishes to hijack the parliament created by the 1997 referendum to pursue the dismantling of devolution and its replacement with a separate state.
It is a subversion not only of the purpose of devolution but of the concept of electoral mandates. The Nationalists are saying, in effect, that a mandate can be achieved in an election to one parliament for the exercise of powers that reside with another parliament. That, as long as enough people want something, constitutional process does not matter.
This populist spin on parliamentary democracy has implications even when a given Parliament’s legislative competence is not in doubt.
Those elsewhere in the UK, particularly London liberals, who would feel uneasy if Westminster denied a majority-SNP parliament another plebiscite, should think on the precedent they would be encouraging. If Scotland can get a referendum on leaving the UK, why can’t England get one on withdrawing from the European Convention on Human Rights? Why should popular sentiment force the Government’s hand in one part of the country but not another?
Some Unionists propose all these issues be dealt with via a Clarity Act, named after legislation passed in Canada following the Quebec separatists’ hair-splittingly narrow defeat in 1995. The Act sets out a rough framework of criteria for Ottawa entering negotiations with any province seeking independence.
Its House of Commons gets to decide whether a referendum question is ‘clear’, whether it improperly asks about matters other than secession and whether the result represents ‘a clear expression of a will by a clear majority of the population’, though it does not establish what ‘clear expression’ or ‘clear majority’ mean.
There are advantages to such a legislative instrument. By being specific and vague in just the right measure, the Act gives the Commons an effective veto on any attempt to split from Canada. The Parti Québécois, which a quarter-century ago almost split Canada, now languishes as the smallest party in the Quebec National Assembly.
By putting beyond all doubt that only Westminster can grant lawful referendums on independence, a UK Clarity Act could deliver a fatal blow to the SNP.
Sturgeon could no longer keep her political coalition together by promising another referendum, and divisions between those committed to finding a legal route and those demanding a unilateral declaration of independence could severely damage the SNP.
However, there is a danger that a Clarity Act would be seen as anti-nationalist rather than pro-unionist, focused on hindering secession rather than strengthening the Union. A law that says ‘you can’t do that’ instead of ‘here is what we can do if we stick together’ might stir up as much nationalist sentiment as it dispels.
That is why I favour a more ambitious, 21st-century Act of Union that reforms devolution while respecting local decision-making and addressing the flaws in the Union that have seen it weakened so grievously. A new Act of Union could keep the UK together while recognising the legitimate (and even Union-enhancing) clamour for a less centralised state.
There is a risk, too, that a Clarity Act inadvertently becomes a blueprint for independence, by prescribing a series of tests which a devolved government must meet in order to achieve a breakaway.
The current constitutional hodge-podge leaves open the possibility of a nasty judicial shock if the matter went to court, but the ambiguity it creates can be useful. If the SNP knows what it must do to get independence, it becomes easier to get.
There is another, unpleasant consideration. Specifying in law that an unsanctioned referendum is unlawful — or even criminal — places an onus on Westminster to enforce the law if a future SNP First Minister decided to call it anyway. (I say a future First Minister because I cannot see Nicola Sturgeon taking such a radical path).
While the law might have been on Madrid’s side in 2017, its handling of the crisis is something no one should want to see repeated here. Police Scotland, in particular, would be placed in an invidious position, as would local authorities.
No state is obliged to conspire in its own dissolution and the UK is entitled to erect every lawful barrier to that eventuality. The question is how to go about it.
A Clarity Act is not the clean fix its advocates believe but, in the absence of any appetite for more fundamental constitutional reform, some Unionists may decide it is the only way forward.
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Originally published in the Scottish Daily Mail. Letters: scotletters [insert @ symbol] dailymail.co.uk. Feature images © UK Government by Creative Commons 2.0, flipped horizontally, and © Scottish Government by Creative Commons 2.0, flipped horizontally; collaged.
Stephen Daisley 