Can Boris Johnson stop Indyref2?

With the Scottish Parliament elections approaching, the Unit gathered together three experts to discuss the prospect of Boris Johnson seeking to block a second Scottish independence referendum, and how the Scottish government might respond to such efforts. Charlotte Kincaid summarises the contributions.

With the May 2021 Scottish Parliament elections approaching, and the recent attention on the continuing political conflict between First Minister Nicola Sturgeon and her predecessor Alex Salmond, eyes are very much on Scotland and the prospect of a second independence referendum (‘Indyref2’). Boris Johnson has said he would refuse a referendum, but is this possible, and what would be the ramifications? To explore the possibility of Indyref2 and how such a referendum would be brought about, the Constitution Unit hosted a webinar with three experts: Professor Aileen McHarg of Durham Law School; James Forsyth, political editor of The Spectator magazine; and Dr Alan Renwick, Deputy Director of the Constitution Unit. The summaries below are presented in order of the speakers’ contributions.

Professor Aileen McHarg

Professor McHarg explored a number of pathways to a referendum from a legal perspective. She first addressed if the UK government can prevent a second Scottish independence referendum: it can, and it isn’t required to agree to a Section 30 order, or amendments to the Scotland Act to enable Holyrood to legislate for a second referendum – as was the case for the 2014 referendum.

But can the Scottish Parliament legislate for a referendum without a Section 30 order? This is less clear. The SNP has marked its intention to unilaterally introduce a referendum bill with or without a Section 30 order if it wins a majority in Holyrood following the May elections. If the bill passed, it would be subject to legal challenge. If the bill were judged as beyond the Scottish Parliament’s competence, any referendum which followed would not have a legal grounding, and in Aileen’s view, the idea of a referendum was ‘a non-starter’. She described talk of a wildcat referendum – such as that experienced in Catalonia in 2017 as ‘entirely misplaced’. There would be questions concerning the legitimacy of a unilaterally-called referendum, even if it were ruled lawful by the Supreme Court; unionists may be unwilling to engage in such a referendum.

Another possible pathway, although unlikely, is Westminster legislating to dissolve the Union. This is possible because a referendum on Scottish independence is not a legal requirement of independence.

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The history behind Nicola Sturgeon’s call for a Claim of Right for Scotland

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Nicola Sturgeon has stated her intention to endorse a modern Claim of Right for Scotland, but there has been little discussion about the 1988 Claim that is the precedent for her new proposal. David Torrance describes the Claim’s history, and argues that it has meant different things at different times to various people.

Speaking in Edinburgh last week, First Minister Nicola Sturgeon said she intended to invite Scotland’s ‘elected representatives’ to ‘come together to endorse a modern Claim of Right for Scotland through a new Constitutional Convention’ to:

‘declare that it is for the Scottish Parliament to decide whether and when there should be an independence choice and build support for that principle amongst civic Scotland.’

The First Minister was referring to the 1988/89 Claim of Right, which argued for a Scottish Constitutional Convention. That Claim is much cited but little studied. This blog will look at three different uses of the Claim: devolutionist, nationalist and the ‘right to choose’.

Origins and publication

The impetus for the Claim of Right was the 1987 general election. The Campaign for a Scottish Assembly established a Constitutional Steering Committee (CSC) of ‘prominent Scots’ to make practical recommendations on persuading the UK government to devolve power. The idea of a 1689-like Claim probably came from a fringe group called ‘Scotland-UN’, which had submitted Scotland’s Claim of Right to Self-Determination to the United Nations in 1980.

Sir Robert Grieve, an eminent planner, led the cross-party CSC, which included Una Mackintosh (widow of the Labour MP and devolutionist John P Mackintosh), Judy Steel (a Liberal) and three prominent SNP figures: Isobel Lindsay, Neil MacCormick and Paul Henderson Scott. It was drafted by a retired civil servant called Jim Ross. Professor James Kellas called them ‘worthy Scots from the middle-class professions’.

Henderson Scott believed the final CSC report ‘was closer to the views of the SNP than of Labour’, with its talk of the Union as ‘a glaring anomaly’ and ‘a threat to the survival of a distinctive culture in Scotland’. Yet as the cultural historian Scott Hames has observed, the Claim ‘veers away from the consequences of its central argument’ and instead urges the creation of a constitutional convention ‘to draw up a scheme for a Scottish Assembly’. Continue reading

Ten things you need to know about a hung parliament

professor_hazell_2000x2500_1.jpgimage1.000.jpg.pngWe know there will be an election on 12 December, but the outcome, in terms of parliamentary seats and who will form the next government, remains uncertain. Robert Hazell and Harrison Shaylor answer some of the key questions about what happens if the election creates another hung parliament.

With an increasingly volatile electorate, and uncertain forecasts in the polls, it is possible the 2019 election will result in another hung parliament. Although bookmakers currently have a Conservative majority as comfortably the most likely election result, and the Conservatives are currently polling around 11 points ahead of Labour, a hung parliament is by no means out of the question. It would be the third hung parliament in four general elections. This explains what lessons can be learned from our previous experience of hung parliaments at Westminster and around the world. It addresses questions such as how a new government is formed, how long formation of that government will take, what kinds of government might emerge, and what the most likely outcomes are.

How common are hung parliaments in other countries?

In most democracies across the world, single party majority governments are the exception. Whereas the ‘first-past-the-post’ (FPTP) voting system used in the UK has had the tendency to encourage adversarial two-party politics and majority government, this is far from a default setting. Proportional representation tends almost always to produce coalitions: many countries in Europe currently have a coalition government.

Recent years have shown that, even in countries using FPTP, hung parliaments can occur quite frequently. In Canada, whose parliament uses the same electoral system as Westminster, there were 10 minority governments in the 20th century. There have already been four since 2000, including the incumbent minority government led by Justin Trudeau, formed after the Liberals lost their majority in the October 2019 federal election.

What is the experience of hung parliaments at Westminster?

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Westminster has more experience of hung parliaments than is generally recognised. There were 20 governments in Westminster in the 20th century: four were coalitions, and six were minority governments. But single party majority governments dominated after the Second World War. The 2010 coalition government was the first since 1945 and the product of the first hung parliament in 36 years. Since 2010, however, two out of three general elections have produced hung parliaments (and the fact that David Cameron’s Conservatives succeeded in obtaining an absolute majority in 2015 was a surprise). Continue reading

The narrative of devolution twenty years on

gtwuaP6C (1)Today marks the twentieth anniversary of the first Scottish Parliament elections. In this post, David Torrance looks back at how political parties in Scotland have fought to control the narrative of devolution and examines how that ‘story’ has evolved over the past two decades.

Pollsters and sociologists have long understood the power of political storytelling. James Carville, who engineered Bill Clinton’s 1992 presidential victory, believed that an effective narrative was ‘the key to everything’, while the NATO strategist Mark Laity has described how a narrative with historical overtones can influence decision- making more than logical argument.

This is not, however, a contemporary political phenomenon, but rather something as old as spin and fake news. As others reflect on the twentieth anniversary of devolution in Scotland, it’s worth looking at the role narrative – or rather political ownership of narrative – played in the run-up to the establishment of the Scottish Parliament in May 1999, and indeed thereafter.

Broadly speaking, the ‘story’ of devolution in Scotland was owned, at first, by the Scottish Labour Party from the 1980s until the early 2000s, before the Scottish National Party (SNP) assumed control in the mid-2000s. More recently, ownership has become more competitive, with the Scottish Conservative Party belatedly expressing comfort with devolution and challenging the SNP’s claim to ‘stand up for Scotland’.

As I’ve argued in an earlier essay, this narrative marketplace has much deeper roots, for since the late nineteenth century every major political party in Scotland has told a ‘story’ of an autonomous Scotland while claiming to defend that autonomy from internal and external threats. Initially it was the Liberals with ‘Home Rule’, then the old Scottish Unionist Party, which presented itself –most ostentatiously between the early 1930s and mid 1950sas the main ‘guardian’ of a distinct Scottish national identity, while extending what was known as ‘administrative devolution’ within the United Kingdom.

Later, this political story passed to Scottish Labour in augmented form, at its most salient after the 1987 general election when the party resolved various internal debates to emerge as the main champion of a devolved Scottish Assembly/Parliament. A necessary corollary was delegitimising the Scottish Conservative Party’s claim to guardianship of Scottish identity, thus the charge that the governments of Margaret Thatcher were ‘anti-Scottish’ and hostile to distinctively Scottish institutions.

There were echoes of the earlier Unionist approach. Not only did Scottish Labour draw upon its considerable reserves of political symbolism, but it pushed the SNP’s competing nationalism (‘independence in Europe’) to the periphery of political discourse, all the while pursuing its own electoral strategy north of the border with the tacit approval of the UK Labour Party, classic features of what the sociologist Michael Billig called ‘banal nationalism’ and Jim Bulpitt’s description of territorial management in the United Kingdom.

Although the SNP attempted to challenge Labour’s ownership of the devolution agenda – Alex Salmond used to claim the party couldn’t ‘deliver a pizza let alone a parliament’ – Donald Dewar, Scottish Secretary after 1997 and Scotland’s inaugural First Minister in 1999, understood well the power of political storytelling. His memorable speech at the Scottish Parliament’s official opening on 1 July 1999 invoked:
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