With just over two weeks to go until the UK Supreme Court (UKSC) hearing on the matter of whether the Scottish Parliament has the competence to hold a strictly consultative and non-self-executing referendum with the question ‘Should Scotland be an independent country’, or whether this proposed referendum relates to a reserved matter and is therefore outwith the competence of Scotland’s democratically elected Parliament, it is difficult to discern which outcome the Scottish Government would consider a win. Assuming the UKSC hands down a decision which is clear-cut rather than some kind of fudge, it will be either a finding that means either no, the referendum may not be held or yes, there can be a referendum so long as it is solely for the purpose of measuring public opinion and has no consequences for the Union. But which might the Scottish Government prefer? Which finding would best suit Nicola Sturgeon?
We know, because the First Minister has told us, that a negative finding by the UKSC would trigger the Plan B that not so long ago the SNP leadership flatly rejected and wouldn’t even allow to be discussed. We know that the Scottish Government will ‘respect’ the decision of the court ─ as, indeed, it must ─ and move to make the coming UK general election a plebiscite, or de facto referendum, on the same question as is proposed for the referendum. The hope is that by confirming that the UK is not a voluntary political union the UKSC rejection of the proposed referendum will provoke enough indignation to prompt a flood of votes to the SNP or other pro-independence parties.
A positive decision by the court would obviously allow the proposed referendum to go ahead on 19 October 2023.
From the perspective of the SNP/Scottish Government there are pros and cons to both outcomes. If the referendum is disallowed this buys them yet more time and, most importantly, makes voting SNP in the UK general election all but compulsory for independence supporters. The SNP is rather good at winning elections. Its record on winning referendums is somewhat less spectacular. It is easy to understand why the party might prefer that the constitutional issue should be made the subject of a plebiscitary election.
One consideration which cannot be dismissed is money. A referendum will demand funding for a campaign. A de facto referendum rolls that cost into provision that would have to be made anyway. In short, a referendum involves additional expense. It’s not at all certain that the SNP has the resources or the capacity to raise sufficient funds.
If the UKSC gives the nod to a referendum, that can easily be presented as a major victory for the SNP/Scottish Government. Nicola Sturgeon will be the hero who (eventually) delivered the referendum for which she has a drawer-full of mandates.
There are advantages for the SNP/Scottish Government whichever way the UKSC goes. But there are also difficulties. Should the referendum go ahead, there are severe doubts about whether the SNP has a campaign strategy capable of delivering a Yes vote. Likewise with a de facto referendum. Even with independence apparently at stake it is not at all certain that SNP-Yes can win. Or win sufficiently. For one thing, it’s a UK election and the franchise is therefore limited compared to what is the case for Scottish elections. And the First Minister has volunteered that a won for SNP-Yes would require not merely a majority of the seats but a majority of the vote. That’s a mountain to climb at a time when the SNP is shedding members and coming under increasing criticism from sections of the independence movement.
But the big problem with either a referendum or a plebiscitary election is what happens if the independence side wins. Expectations have been raised which can only be dashed when reality dawns. That reality is that whether it is a Yes vote in a referendum or a Yes vote in a de facto referendum, nothing happens. The Scottish Government’s entire argument for the UKSC declaring the proposed referendum lawful is the fact that it has no direct legal consequence. It cannot impinge on reserved matters as it doesn’t actually do anything.
The problem with a de facto referendum is clearly stated by Professor James Mitchell, a constitutional expert at the University of Edinburgh, who points out that,
There is no such thing as a de facto referendum.
An election cannot be a referendum because no one party can dictate that the election be about a single issue. Neither other political parties nor the electorate are under any obligation to go along with the SNP’s de facto referendum. Politically, there is absolutely no reason why they should and every reason why they shouldn’t. The bottom line is that the outcome of this exercise can simply be dismissed by the British state.
Likewise, a Yes vote in an actual referendum, if this is permitted by the UKSC. The British government isn’t merely able to discount a Yes vote, it is obliged to do so. It cannot contradict the Scottish Government’s position that the referendum is strictly consultative. More importantly, the UK government cannot go against the decision of the UKSC which would have given the go-ahead on the understanding that only a referendum with absolutely no effect is lawful. For either the UK or Scottish Government to attempt to give it effect after the fact would automatically and necessarily render the referendum unlawful.
Bear in mind, too, that Nicola Sturgeon’s position remains that any action prompted by a Yes vote in either a referendum or a plebiscitary election would still require the consent and cooperation of the British state. The SNP/Scottish Government has no proposals for what it might do should that consent and cooperation be withheld. The democratic exercise that is being presented as overcoming the British state’s veto actually leaves it intact.
So, what is the point? That is the question some of us are asking now. After the event ─ referendum or de facto referendum ─ a lot more people will be asking what was the point. Because nothing will have changed as far as Scotland’s cause is concerned. Except, of course, that the British will be able to say, with full justification, that we’ve had our ‘indyref2’ and should now STFU about the constitutional issue for a century or two. In fact, the aftermath of either of the proposed ineffectual votes will create the ideal circumstances for the British state to legislate so as to ensure there can be no further votes in the lifetimes of most of us. Or ever.
The question of which UKSC finding the SNP/Scottish Government would prefer probably comes down to which will longest delay the moment when they are obliged to face the wrath of a massively disappointed electorate.
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Peter A Bell 
“the moment when [the SNP] are obliged to face the wrath of a massively disappointed electorate.
Which may lead to a massive collapse in support for Independence – which may be exactly the aim desired by the SNP and the UK State.
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Sturgeon will have moved on. No reason for her to care. I becomes her successor’s problem.
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Reblogged this on Ramblings of a now 60+ Female.
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“An election cannot be a referendum because no one party can dictate that the election be about a single issue.”
If no one party can dictate the terms, then any party involved effectively has a veto by refusing to participate. So we are left with the only option of a referendum which, by precedence, is only advisory.
It seems that on the constitutional front and every other front we’re tying ourselves in proverbial knots trying to “be kind”. Either we have the right to self-determination or we don’t.
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A referendum is only advisory unless you say it isn’t. The difference between an advisory referendum and a binding one is political will.
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Everything you say is right, Peter, which is why we have to do things differently and leave the constitutional situation attaching to the Scotland Act and devolution aside now. They will take us nowhere because both the Act and devolution take us to a cul de sac. Domestic constitutional law cannot help us any more than domestic political policy because both are entirely within the gift of Westminster, and, if the Treaty and CoR are brought into the equation, very likely to have been illegal in any case. Upsetting that particular applecart, which just happens to be the one on which the Union case rests from the English viewpoint could lead to direct rule a la Stormont. I really believe it is impossible to escape the Union via England’s interpretation of the Union.
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‘the moment when [the SNP] are obliged to face the wrath of a massively disappointed electorate.’
‘Which may lead to a massive collapse in support for Independence – which may be exactly the aim desired by the SNP and the UK State.’
Or it may have the opposite effect of driving the people to action. It’s also possible that – if the wrath of the people is finally triggered (by the appalling actions of the Tories and the disgraceful inaction of the SNP) – we would be left with an angry and militant independence supporting electorate and the ignominious end of a toothless SNP leadership.
It’s a pity we have to jump through so many pointless hoops to get to this stage, but at least it brings things to a head.
Sturgeon’s cabal and the unionists will have achieved their aim of delaying independence for a long as possible, but, hopefully, new leaders will then emerge to finally get independence done!
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Time is real.
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If Brexit was the single worst piece of self-harm inflicted on a country, then surely the SNP’s afterthought of a requirement that a majority of the votes as well as the majority of seats in the next Westminster election runs it close. “Here is a victory which is winnable and has long been accepted as valid by Westminster – let’s not put ourselves at risk of winning it, lets scuttle our chances of winning by attaching a near impossible condition”. I’m sorry but we can draw only one conclusion from this, the party leadership does not want independence, and wants to make sure it doesn’t happen for decades. Job Done.
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John Swinney’s ‘reasoning’ as he squirmed himself back in line with the Sturgeon doctrine was as follows.
“Referenda, including de facto referenda at a UK General Election, are won with a majority of votes. Nothing else.”
Fuck knows why he’s speaking in Latin. But let’s attend to what he says rather than the language he uses.
Referendums are decided by a majority of votes. Well, duh! How else would they be decided? What else is there? The question of whether votes or seats is the deciding factor only arises because the de facto referendum is not a referendum. It is an election. It must be. Because it is decided by seats and not votes.
The whole plebiscitary election notion was daft when it was just Alba pushing it. It’s no less daft now that the SNP has seized on it.
Here’s a wee thought exercise which I hope will bring home the ridiculousness of the whole plebiscitary election nonsense.
Suppose the SNP was to win over 50% of the vote in this de facto referendum. Meanwhile, the British parties win a majority of the seats. Which do you suppose will be deemed decisive? It will be seats, of course. Because UK general elections are won with a majority of seats. Nothing else.
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‘Time is real.’
Time is relative. Come to think of it, so is independence.
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And under colonialism the nation is perishing.
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It’s a win, win situation for Sturgeon and the UK government, no mock indyref and Sturgeon will do her usual finger pointing at Westminster and the indy masses will elect many SNP MP’s at the next GE. If the UKSC gives the mock indyref the greenlight nothing will come of the result even if yes romps home, the union will be once again safe, as if that was ever in any doubt.
The games a bogey, the decks stacked, the dice are loaded as they sayings go, as long as Sturgeon is FM the indy masses will be played like a piano by the SNP under Sturgeon and Murrell, and some indy supporters, no matter what Sturgeon does will still laud her as our saviour, who’ll take us out of this union.
Sturgeon is on record saying that Scotland doesn’t need independence, she said that years ago when she first became FM, that should’ve set alarm bells ringing in the indy ranks. It did for some but even back then most wrote it off, hindsight is a wonderful thing, eh?
Right now, Sturgeon is finger pointing at Westminster for their horrendous mini budget, however it doesn’t mean a thing, consecutive UK government have scored umpteen own goals, and no matter how poor they govern or how bad it gets, Sturgeon won’t take us out of this union.
It leaves me wondering just how bad it has to get before Scots act, I think it will need to get a hell of a lot worse before Scots wake up and say enough is enough, even then, Sturgeon is still the FM and will carrot dangle until 2026, we’re stuck in a mixture of Edvard Munch’s Scream painting, and The Twilight Zone until 2026.
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“Suppose the SNP was to win over 50% of the vote in this de facto referendum. Meanwhile, the British parties win a majority of the seats”.
Luckily, the chances of such a scenario becoming reality are so vanishingly, infinitesimaly small its not something any sane person need concern themselves with.
The point of any referendum is to get 50+% of the vote in your favour, nothing more, nothing less. Once you have that definitive proof of majority public support, you can move forward with whatever will then achieve independence.
There is NO legal route to independence, within the Scottish govt’s control, within the UK framework. That makes it imperative we have the definitive proof of majority public support BEFORE we make that move. Any attempt at a Hail Mary play without that proof is almost certainly doomed to failure. Not that that will bother some of those pushing for immediate action. They seem more interested in the thrill of the fight whether or not it is won.
Peter states;
“Bear in mind, too, that Nicola Sturgeon’s position remains that any action prompted by a Yes vote in either a referendum or a plebiscitary election would still require the consent and cooperation of the British state”.
Of course it would. It cannot be otherwise. Even a UDI would require it. Whether that “consent and cooperation” is given freely, grudgingly or at the point of a diplomatic gun is the only question here.
Take Peter’s plan for instance. He feels we should just declare a UDI now, legislate for a binding referendum afterwards, then hold that referendum several months down the line. The question is, who is paying the bills and administering the day to day stuff while Scotland is stuck in the self-imposed limbo between the UDI and the referendum that will confirm it is the will of the people …. or not? That, at the very least, will require the cooperation of the UK govt. Why should they give it? They could easily withold it, watch Scotland flounder, then take back control with the likely consent of the majority of Scots who would be angry with an arrogant Indy movement that had put them in that predicament. Holyrood would no doubt be toast after that avoidable shambles.
The better route, in my opinion, is referendum/plebiscite first, then UDI followed by immediate, and necessary, negotiations with the UK govt to make independence a reality. No limbo period that would allow the “dark forces” of the UK state (they would not be rendered impotent by the UDI as Peter appears to believe) to destroy any chance of independence forever.
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Of course there is a legal route to independence. It is a guarantee by the UN that any people who wish independence can, given public support, declare it so.
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My e-mail tells me “Jams O’Donnell” has replied to my post but it does not appear here. I’ll reply anyway, in the hope it does appear eventually.
Jams wrote;
“Of course there is a legal route to independence. It is a guarantee by the UN that any people who wish independence can, given public support, declare it so”.
I know that, but I was explicitly referring to the UK framework. UN guarantees are not always worth relying on. The West Bank, for instance, should be under the sole sovereignty of the Palestinian people according to UN resolutions …. yet it is still under Israeli occupation.
That being said, it is definitely a drum that needs banged loud an often. Especially within earshot of the EU. International pressure will be absolutely crucial in re-establishing Scottish independence.
I would also draw attention to the phrase “given public support”. This is what this very real, not “mock”, referendum and/or plebiscite will establish. As I said before, any move towards a UDI that does not have this explicit, definitive support behind it is doomed to almost certain failure. With it, a UDI will have a far better chance of succeeding.
Unlike Peter, I do not believe the will of the Scottish people, as expressed in any referendum whether “advisory” (like in 2014) or “binding” (like in …. never), is worthless and easily ignored by a hostile UK govt and the international community. It is a powerful thing and needs to be the basis of any independence bid, whether a UDI or otherwise.
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I note that you still have not grasped the idea of #ScottishUDI. I am resigned to the likelihood that you never will no matter how often or how comprehensively it is explained to you.
Just as you will never acknowledge the fact that the 2011 United Kingdom Alternative Vote referendum was determinative and not merely consultative giving the lie to your assertion that there has never been a referendum that was not merely advisory.
You are not to be taken seriously.
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A UDI is a Unilateral Declaration of Independence. You appear to believe your particular take on #ScottishUDI is different to other UDIs. In that you are correct. Your version is a “mock” UDI. It is a UDI that doesn’t deliver actual independence. It merely declares “we are independent …. kind of …. we’ll decide on that later …. we’ll get back to you on it”. That is a scenario that is not to be taken seriously.
I don’t refuse to acknowledge the Alternative Vote referendum. Like the vast majority of the population, I just forget it ever happened. The points I make, however, make it moot. The UK govt will NEVER agree to a “binding” referendum, but that does not matter. A referendum, whether “advisory” or “binding”, that delivers a majority in favour of independence is a powerful thing. That should be the basis of any subsequent independence bid, whether a “proper” UDI or otherwise. By “proper” I mean one that delivers independence by its enaction. Not your “mock” one as described previously.
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“Luckily, the chances of such a scenario becoming reality are so vanishingly, infinitesimaly small its not something any sane person need concern themselves with.”
It was a thought exercise. Evidently, you lack the tools.
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No, it was a silly attempt to muddy the waters using an impossible scenario to justify your antipathy towards a plebiscitery election. What is required is 50+% of the votes in either a referendum or a plebiscite …. nothing more. The seats are irrelevant. The Tories/unionists may have said otherwise at some point in the past, but then they have said a lot of things in the past regarding Scottish independence. None of them were worth the breath it took to utter them. It is the will of the Scottish people that counts. Once that is definitively established, independence comes within our grasp.
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