Acts of Disunion
Jack Kennedy
March 28, 2024

The UK Supreme Court's decision in Reference by the Lord Advocate of devolution issues produced more questions than answers. No one was especially surprised that the Court found holding a second independence referendum to be outside the Scottish Parliament's competence, though the confirmation is useful. But the ghosts of 2014 cannot be exorcised so easily. By closing the door on the simplest and most straightforward path to a vote, the September 2022 decision merely kicked the matter back into the political arena, where things are much messier and more complicated. With the next UK general election due within the next year, both London and Edinburgh must consider carefully how to proceed.

Ten years on
It is something of an unresolved and perhaps unresolvable question when precisely after a rejected referendum it is reasonable to ask for a re-run. If asked immediately afterward, the losing side could be accused of seeking to simply repeat the exercise until they achieve their desired result. But equally it is hardly reasonable to say that defeat of a proposal constitutes a permanent settling of the issue, especially if the proposal in question retains support among a sizeable portion of the population. It has now been almost a decade since the first "Indyref" of September 2014, and much has changed.

The elephant in the room is, of course, Brexit. EU membership was a key point of contention during the referendum campaign. Those on the No side insisted that an independent Scotland would not automatically continue to be in the EU, while the Yes campaign assured voters that the issue could be negotiated without extensive difficulty. Secession of part of an EU member state is without precedent; and in this case the relevant legal and procedural theories proffered were never put to the test. Ultimately, both sides were likely partially correct; Scotland would not have automatically had EU membership, but given its preexisting alignment with EU legal and regulatory frameworks, would probably have found accession comparatively straightforward – barring a veto from a secession-conscious member state like Spain.

There are Scottish nationalists who argue that Brexit proves the No side in 2014 was operating in bad faith or under false pretences when it pointed to EU membership as a reason to stay. This is overly simplistic; most of the leading figures of that campaign went on to vocally oppose Brexit. But it is undeniably true that the 2014 referendum took place under fundamentally different circumstances to those Scotland and the UK writ large find themselves in now, and that Scotland was taken out of the UK against its overwhelming will. This adds significant political and moral weight to calls for another referendum.

Also of interest from the 2014 campaign trail were the promises from the No side that, if Scotland remained in the union, Holyrood would have significant new powers devolved to it. This culminated in the 2016 Scotland Act, which granted the regional parliament control over its own electoral system as well as policy areas like abortion, welfare, fossil fuel extraction and railways. Whether this matched the promises made on the campaign trail is difficult to answer objectively.

This concession can be seen as part of a broader pattern; whenever nationalist sentiment in Scotland threatens to boil over, Westminster seeks compromise through granting the nation more freedom to govern itself within the bounds of the UK. The creation of the Holyrood parliament itself was by far the most significant such move, and with that in mind, it is difficult to call the strategy a success; since 1999, the Scottish National Party (SNP) has gone from a minor force in Scottish politics to a dominant one. It has now governed in Edinburgh for almost 17 years.

The view from Edinburgh
As by far the largest nationalist party, support for the SNP is sometimes seen as almost a proxy for support for independence. The party is seeking to formalise that idea; in the aftermath of the Lord Advocate ruling, newly-minted SNP leader Humza Yousaf has announced that the party will contest the 2025 general election almost completely on the basis of independence. If the SNP wins a majority of Scottish seats in Westminster, it will consider that a mandate to enter negotiations with the UK government on another referendum.

This is an imperfect measure, to say the least. While the SNP constantly emphasises independence as a core part of its electoral platform and political identity, this does not mean every voter for the SNP can be assumed to be a voter for independence. Much of the party's electoral success over the past two decades is also related to its social-democratic ethos and the practical social and economic reforms it has delivered in Scotland. On the other hand, going into the election having declared this to be SNP policy will serve to both positively and negatively filter votes for the party, so its performance this time around will arguably be a better barometer of nationalist sentiment than usual.

The winner-takes-all nature of Westminster elections also limits their usefulness as proxy referenda. Even if support for a party can be taken as support for a given issue, the correlation between this and number of seats won is very fuzzy, affected by any number of factors like geographic concentration and the degree of splitting of support among other parties. There was previously debate within the SNP on whether to declare a majority of seats or a majority of votes as the necessary benchmark to seek an independence vote. The choice of the rougher metric may indicate that the party leadership lacks confidence in its likely performance in the election.

This would, according to polls, be warranted. The SNP had an extremely bad year in 2023, with Labour steadily eating away at the former's lead in Scottish polls since Nicola Sturgeon, the SNP's longtime leader, unexpectedly resigned in March. Depending on how opinion polls are weighted and when one checks, the average gap between the two parties appears now to be in single digits, down from more than 26 points in the 2019 election. Estimates on how such numbers translate into Westminster seats vary massively; but the SNP's total dominance of the Scottish seats is clearly set to end. Some polls from early 2024 even show Labour holding a narrow lead in Scotland, though others disagree.

The centre trying to hold
The atmosphere in London is hardly receptive. The Conservatives, who have been in power for almost 14 years now, have flatly rejected the idea of any second referendum in the foreseeable future. Secretary of State for Scotland Alistair Jack said in 2020 that his party would refuse to hold another vote for "a generation", meaning "25 or 40 years". This can be seen as part of a broader desire among the Tories to reassert the primacy of Westminster; this past October, Jack criticised the idea of "leaving too much in the hands of the devolved administration in Holyrood and allowing the role of the UK government to fade into the background." Some legal scholars have characterised the UK government's blocking of Scotland's Gender Recognition Reform Bill as more related to this "muscular unionism" than concerns about the specifics of legal gender change.

Labour leader Keir Starmer, who is currently overwhelmingly favoured to win the next election, also said in December 2022 that he would not approve another referendum. He has, however, promised Scotland unspecified "change within the UK", insisting he was not "arguing for the status quo"; implying some kind of new devolution-related reform. This would, however, bring us back to the question of what effect such reforms really have on nationalist sentiment.

Bridging the gap
Clearly, then, there is some distance still between the nationalist camp and the UK-wide parties over the second referendum question. There are issues with both sides' approach.
The SNP's election gambit does not appear productive. Firstly, because all the party is promising to do, if given their mandate, is to enter negotiations; to try to convince London to agree to a vote. Any negotiation process will be drawn out and possibly fruitless, given London's intransigence, so the question must be asked: does such a minor move really need an explicit electoral mandate, and is it worth the political risk? The SNP dominates Scottish politics right now, and has always told voters that it is actively seeking independence in the near future. That should be plenty of ground on which to begin talks.

Secondly, because an electoral mandate isn't the strongest argument; Brexit having fundamentally changed the terms of the question of independence is enough. It has been almost ten years; most polls on the issue find a gap of no more than two points between prospective yes and no voters on independence, and bearing in mind that the same gap narrowed by approximately seven points in the year before the 2014 referendum, it is plainly not a settled issue at all.

Presumably the point of the mandate-seeking is to bolster the SNP's case when it does go to negotiate with the government. But if London isn't swayed by the structural arguments, it's hard to see the fuzzy metric of SNP election success changing that.

Those London politicians must stop stonewalling and take the issue seriously, though. It is, as discussed, difficult to say precisely when the right time has come to re-run a referendum. There's a not-unreasonable argument to be made that the SNP is expecting too much too quickly. But the current approach of refusing to even seriously discuss it, let alone outline a timeline or a set of conditions for holding a vote, is not sustainable. At some point that becomes antidemocratic.

One interpretation is that London is being so stubborn precisely because of the potential a second referendum has a chance of passing; there would be little to lose and much to gain by letting the SNP set itself up for a likely embarrassing defeat. If that's the case, it would strengthen significantly the argument that continued refusal to even consider a referendum is compromising British democracy.

The can cannot be kicked down the road forever. And if the core argument for independence is that London does not have Scotland's best interests at heart, is this uncompromising approach to the referendum question likely to refute it?