Scotland’s risky route to a new independence vote

GLASGOW — Despite being on course to win next week’s Scottish parliament election, pro-independence parties face a perilous path to secure a new referendum on breaking away from the U.K.

The first major obstacle is U.K. Prime Minister Boris Johnson, who says he will refuse to grant a second referendum even if the Scottish National Party (SNP) retains power and the broader pro-independence camp wins an overall majority of seats in the election on May 6.

If Johnson sticks to that stance, the independence movement is divided over how to force the issue. And those divisions could erupt into open warfare between different factions, opening up a new front in the battle over the country’s future that has raged for most of the past decade.

In the event of another election victory, the SNP plans first to make a moral case — calling on the U.K. government to recognize they have won the democratic right to hold another referendum.

“There can be no democratic justification whatsoever” for denying a second ballot, said Michael Russell, the SNP’s constitution secretary, laying out plans for an independence vote in the first half of the next parliamentary term. The only limiting factor, he stressed, was the state of the pandemic.

But Johnson has recalled that SNP leaders said the last referendum in 2014 was a “once in a generation” opportunity, meaning there should not be another any time soon. The SNP’s argument that Brexit has happened in the meantime, dramatically changing the political landscape, has cut no ice.

The SNP’s opponents have also noted that this is a parliamentary election, on which voters will consider a range of policies — not just the question of independence.

All of this means the Conservative U.K. government is highly unlikely to grant another so-called Section 30 order — the measure that allowed the Scottish parliament to hold the last referendum.

First Minister Nicola Sturgeon would prefer to use that same route again, as it would remove any questions about the legality of another independence referendum, or “indyref2.” That could be important in ensuring the result is seen as legitimate both in the U.K. and internationally.

But if Johnson refuses to budge, Sturgeon has a backup plan: The SNP would push its own referendum bill through the Scottish parliament — in effect daring London to challenge the measure in court.

Assuming the British government takes that route, the U.K.’s Supreme Court would then decide whether Scottish lawmakers have the legislative competence to approve a secession ballot.

The problem for Sturgeon: Such a judgment could go either way. And if she loses, that option is off the table for good.

“The legal issue is genuinely arguable, but I wouldn’t say by any means that it’s a foregone conclusion that the Scottish government would win such a case,” said Aileen McHarg, professor of public law at Durham University. 

And there’s another element of risk: In anticipation of the SNP’s legislation being passed, or in the course of a Supreme Court hearing, the U.K. government could simply amend constitutional law, making it clear that “a referendum is outside the Scottish parliament’s competence,” McHarg said.

‘Crash the parliament’

Some in the independence camp caution against a rush to another referendum, arguing they should first build greater support for their cause. Polls currently show voters evenly split on the issue.

But the uncertainty around Sturgeon’s chances of success is making others in her party and the movement nervous. Angus MacNeil, an SNP MP for Na h-Eileanan an Iar, an island constituency off the west coast of Scotland, says he’s concerned that discontent among independence supporters will rise if the country does not move quickly toward another referendum.

“The people are ready. They’re wanting to move a lot faster than the politicians. They’re going along with the tune for the moment, but if it’s more of the same for the next two to three years … [they] aren’t going to be happy.”

That’s why, if all else fails, MacNeil thinks the gloves must come off — to force a vote on secession with or without the U.K.’s consent.  

“If two-thirds of the Scottish parliament is outraged [at a refusal to permit a referendum], they could crash the parliament and trigger an election on one issue — independence. And then we’d have the question answered that way,” he said.

Others in the nationalist camp are also demanding urgency. The new Alba Party, led by former SNP First Minister Alex Salmond, wants to up the pressure on politicians in both Edinburgh and London.

“Our tactics are many across widespread areas,” said Kenny MacAskill, a former SNP justice minister who defected to Alba. “There’s international representations, there’s legal action that can be taken, and of course there’s people’s democracy as we begin to come out of lockdown: demonstrations and socially distanced gatherings.”

If Johnson refused to change course in the face of mass demonstrations, that would play badly with large sections of the Scottish public, possibly driving up support for independence.

But that could also mean the SNP having to re-examine an option it has long tried to avoid — an unsanctioned “wildcat referendum,” like the one staged by Catalonia’s pro-independence government in 2017.

Fearing a backlash from the European Union, this is likely a nonstarter for Sturgeon, who wants Scotland to join the bloc after independence. There are also doubts as to the viability of such a ballot: Voters opposed to independence may well choose to boycott, while opposition-controlled local authorities, who oversee Scotland’s electoral process, could simply refuse to cooperate.

The pro-independence camp might, however, find sympathy in the ranks of parties other than the Conservatives. Some in Scottish Labour, for example, are open to another plebiscite.

“If the people want a second independence referendum, if that’s their democratic choice, our party should engage with it positively,” said Neil Findlay, an outgoing member of the Scottish parliament and an advocate of so-called “devo max” — maximum devolution of powers from Westminster to Edinburgh.

This, Findlay said, should be on the ballot paper as a third option — something he’s spent years trying to enshrine in Labour policy.

But neither U.K. Labour leader Keir Starmer nor the party’s new leader in Scotland, Anas Sarwar, are keen on a second referendum any time soon, echoing the Conservative line that now is not the time. Nor do they have much power to make it happen.

Labour’s attitude could change if, one day, it needs SNP support to form a U.K. government. But that scenario may never come to pass — adding yet more uncertainty to Scotland’s political future.