UK Supreme Court indyref2 ruling is a legal one - not political

  • First published in : Visit Website
  • First published on: 18th Nov 2022

And so, the UK Supreme Court has settled the disputed issue of whether our devolved parliament has the competence to hold an independence referendum, without the agreement of Westminster. In doing so they have answered a legal question not a political one. The political question remains – if Scottish voters continue to elect a majority of MSPs and MPs who support a second independence referendum, what is the democratic route to realising that mandate?

This is as much a question for the UK Government and unionist politicians as it is for the Scottish Government, the SNP and other pro-independence parties. That’s not just my view but that of political commentators from David Allen Green in the Financial Times to Kenny Farqharson in the Times. It has been good over the last 48 hours to hear Tory and Labour politicians grilled on this issue by journalists who get it.  Like Rishi Sunak and Alister Jack in the Commons on Wednesday, they evade the question. But the answer is obvious. If a second referendum continues to be blocked the only way independence can happen is if pro-independence parties win an election in Scotland outright and the British government respect that democratic mandate and come to the negotiating table.

The independence question remains at the top of the political agenda. There was huge international interest in the consequences of the court’s verdict across the world. The last thing I did before I went home after a long day on Wednesday was an interview on Australian radio’s equivalent of the Today programme and there were plenty of other bids from international news outlets throughout the day.

Thanks to the initiative of Lesley Riddoch and others, rallies took place across Scotland and indeed Europe providing evidence that the Yes movement is alive and kicking and that ordinary punters care about this issue not just political talking heads.

So where do we go from here? Rubbishing the SNP’s plan B looks foolish in the light of the Channel 4’s news opinion poll showing that 51% would vote SNP at the next General Election if their vote would be used as a mandate to negotiate independence with the UK.  If that is the position now just think what the vote could look like after a strong campaign. 
 
Of course, there are details to be worked out and I am pleased that this will happen at the special conference of the SNP to be convened early in the new year. Along with others I have argued that conference should debate the details of what is now the official plan B for more than three years. Taking this position has come at some personal cost because of the vitriol of a small but noisy and, until recently, influential minority of activists who inexplicably did not want this issue discussed. The folly of not doing so has been illustrated by the difficulty some party spokespersons have got themselves into by disagreeing publicly with each other over the details of a plan not yet fully worked out.  
 
Fortunately, we now have the time and the space to do that.  It looks unlikely that there will be a British general election until 2024 and the next Holyrood election is not due until 2026. In my opinion the option of which election to use needs careful consideration. Utilising a Holyrood election is an option, as one of my colleagues remarked this week, nothing says I mean business like collapsing your own parliament and going for a back me or sack me strategy. The wisdom of such a course of action and all the various options needs careful thought.  A Holyrood election would give us the advantage of more control over the timing and a franchise which includes younger voters, EU citizens and refugees. I don’t say that for political advantage. Scotland’s parliament has extended who can vote to include young voters and new Scots. It was the first bill in the Scottish parliament to require a super-majority. It reflects who we are as a country and what we want for people who make Scotland their home.

In terms of the numbers of seats won, the SNP have won the last three Westminster General Elections outright. In terms of outright wins at Holyrood, the threshold which some Tories including John Lamont have suggested as the only basis for another indyref, we have only managed that feat once in 2011 and the system is designed to prevent it from happening. In terms of outright percentage wins that is very difficult for any one party in any British election, but the Channel 4 news poll suggests  it is achievable.

But we cannot go forward without ensuring proper input from the wider Yes movement.  In response to a question from Ross Greer at Holyrood on Wednesday, Angus Robertson agreed that every vote cast for pro-independence candidates at the 2024 General Election would count towards the mandate for Scotland’s independence. If this is to be our plan then it will mean respectful dialogue and co-operation between the activists of the SNP, Green and Alba parties. The petty bile needs to stop. It also means that the question of a Yes coalition first mooted for the 2015 General Election will have to be revisited. That would certainly be one way of making it easier to guarantee a mandate of more than 50%.

That’s all well and good on the political strategy but what of the all-important issue of how we reach out to and convince the half of Scottish voters who don’t as yet support independence?

In that respect, although devolution has been found wanting there are important lessons to be learned from the movement which led to the 1997 devolution referendum. By the time that referendum took place the result was a foregone conclusion. Almost 75% of those who then voted supported the devolution project. How wonderful it would be to have that sort of level of support behind independence. Not only would it guarantee a win, but it would also guarantee bringing the British government to the negotiating table.

The level of support that was garnered for devolution came about as a result of 18 years of unwanted Tory governments in Scotland, but it also happened notwithstanding the 1997 Labour General election victory. Scottish voters understood that even though Labour had finally managed to win a General Election, they needed devolution to protect them from the follies of future unwanted UK governments. Although devolution has made a difference, it has not proved to be entirely up to that task.

The devolution referendum and its resounding success also came about because of the constitutional convention which preceded it. As Stephen Noon reminded us earlier this week that was a cross-party, civic process which identified the settled will of the Scottish people. The process it facilitated was a very different conversation than that, such as it is, currently taking place between the entrenched independence and unionist movements. Stephen Noon contributed a great deal to the campaign which helped take support for independence in Scotland from 28% to 45%. He is also a thoroughly decent man, and he is always worth listening to. He thinks we need another Constitutional Convention. So does Alex Salmond. And so did the First Minister when she announced her way forward on Brexit day in January 2020. So, let’s get one off the ground.

Regardless of what the Supreme Court may have said about the right to self-determination in international law, history tell us that the political reality is that movements for self-determination can be delayed but not, ultimately, denied. The way forward now is to try and limit the delay by getting our long-term strategy in order and building support.  
 

Joanna Cherry KC MP

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