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.
After a dramatic referendum and UK general election, the Scottish remain divided on both independence and on whether to increase tax and public spending, while the English are becoming increasingly vocal in the devolution debate.Jim Gallagher considers the possibilities of a constitutional relationship that will satisfy Scottish aspirations and also be acceptable to the UK as a whole.
This is the second in a series of posts based on the Unit’s latest report, Devolution and the Future of the Union, publishedhere.
Within the last year the Scottish people have said two apparently contradictory things. They want to stay in the United Kingdom, and they want to be represented by the SNP. In Holyrood, the SNP exercise dominant control over both Parliament and government. In Westminster, they will be the overwhelming Scottish voice, but will control nothing.
The partisan politics of the general election have been extraordinary. The Labour vote collapsed, and the SNP showed remarkable skill in building a coalition of voters, some for independence, others perhaps against austerity. But this tells us less about overall Scottish attitudes on either question than meets the eye. Scotland remains divided on both independence and on whether to increase tax and public spending, and not on the lines you might expect. Many independence supporters are anything but high spending socialists.
Federalism has rarely been seen as an attractive option by the British political class. Yet it may be the only solution to the deep imbalances which will come with radical new powers for the Scottish Parliament if the Smith Commission proposals are implemented, writes Stephen Tierney.
The Smith Commission Reportissued on Thursday promises a restructuring of the United Kingdom which may prove to be more significant than the devolution settlement of 1997-98 itself; the acquisition of extensive tax and welfare powers would make Scotland one of the most autonomous regions in western Europe.
Notably the UK’s economic and fiscal coherence has hitherto been a key factor in allowing the asymmetrical and ad hoc nature of devolution to embed itself without any great disruption to the constitutional structures of the central state. With the dismantling of this system it seems that a tipping point might well be reached for our lop-sided and messy system of territorial government. The Smith Commission proposals, if implemented, will have knock-on consequences for several fundamental features of the UK constitution: parliamentary supremacy, the idea of the House of Commons as a national chamber for Britain, possibly the nature and composition of the House of Lords, and the relative freedom of the UK Government in its dealings with the devolved executives. It is perhaps ironic therefore, but I believe also inevitable, that a process which was designed studiously to avoid the federal question will now bring federalism to the table as possibly the only medium term solution to the deep imbalances which will come with further, radical powers for the Scottish Parliament.
How does Smith raise the federal question?
Federalism has rarely been seen as an attractive option by the British political class, and its feasibility as a constitutional project for Britain is certainly not beyond question. But some kind of federal solution will surely be needed to deal with two related issues: the extent to which Scotland’s representation within the House of Commons, so far only marginally affected by devolution (reduced from 72 to 59 by way of the Scotland Act 1998 as amended), will appear ever more anomalous as the Scottish Parliament’s powers expand; and the very real risk that as Scotland becomes ever more detached from Westminster, the Union will become largely irrelevant to many Scots. The latter is far more dangerous since it could well mean that Scottish independence is in the longer term now more rather than less likely. If this is true the unionist parties, which make up the majority of the Smith ‘Commission’ (which was in reality an inter-party bargaining group), risk seizing defeat from the jaws of referendum victory.
Today’s result came as a relief to many but it is not an excuse for complacency. Jim Gallagher writes that both Westminster and Holyrood must consider the lessons learned from the campaign and start delivering politics for Scotland, not just about Scotland.
Well it’s over. 2 years of campaigning. 5 years of shadowboxing before that. Acres of newsprint, millions of social media posts. TV debates, and family arguments. Street stalls, and chanting mobs outside the national broadcaster. Oh, and truckloads of academic analysis. It’s been a fascinating, exhilarating but also worrying campaign.
But Scotland has finally made a decision. Independence has been rejected, and the UK affirmed. In an extraordinary democratic act, 97% of the population registered to vote and 85% of those voted. The authority that gives the decision is overwhelming. The choice is made.
For many people the overwhelming feeling will be one of relief. They didn’t demand a referendum, and were never part of the Yes project. It was not campaigning that made them worried about the risks. They are Scots who were comfortable in their own constitutional skin, and have now been found to be the majority.