Three conferences and a court case: what did we learn about indyref?

by | 7 Oct 2021

The political forces impacting on independence appear to be cancelling themselves out in a stalemate. The only variable which seems to be in play is public support.

We have now had the three main political party conferences with significance to an independence referendum and a Supreme Court case on the limit of the powers of the Scottish Parliament. Collectively these offer a number of hints about where things are in terms of an independence referendum. The conclusions doesn’t look great for independence supporters in the short term.

First we had the SNP conference at which the primary interest is the leader’s speech. This was surprisingly sparse, particularly on independence. But that in itself may prove noteworthy – a close observation of what was said will show that it did not include a confirmation of the pledge to hold a referendum ‘whatever’.

Many have been led to believe by previous statements that Nicola Sturgeon is committed to a path which involves asking for a Section 30 Order, passing a Referendum Bill regardless of the outcome, and then fighting for the competence of that Bill all the way to the Supreme Court. (There was never a clear confirmation that a referendum would actually be held if the court case was won. That has been super-imposed on her statements by others).

But at this conference Sturgeon focussed only on an ‘intention’ that she would hold a ‘legal referendum’ before the end of 2023. These are substantively different promises; the September conference comments do no preclude a more aggressive stance on the referendum but neither do they indicate any commitment to it.

This was followed by the Labour conference. While this is the least significant of the three, it was not without significance. Any tonal hint that Labour would reluctantly recognise a mandate for an independence referendum which was common during the Corbyn period is gone.

Starmer was bullishly pro-Union at the conference and the ‘patriotic Labour’ model he is developing seems to preclude any accommodation with Scottish independence. But the other key learning point from the Labour conference is that few have any real confidence this will matter one way or the other, as Labour look a long way from power just now.

Commentators who continue to claim that democratic mandates will make an independence referendum ‘inevitable’ seem little informed by historic precedent

Finally came the Conservative conference. The position on independence was predictable at this but nonetheless clear. There is absolutely no incentive for the Tories to give any ground – their target voters outside Scotland don’t care and their core vote in Scotland demands a firm position on the constitution.

Indeed there are pretty clear signs that they are willing to be substantially more interventionist in Scotland than either the Cameron or May administrations, with the apparent hope that this can either weaken the SNP grip on electoral politics or boost the case for the Union.

Either way, commentators who continue to claim that democratic mandates will make an independence referendum ‘inevitable’ seem little informed by historic precedent. The mandate for a devolved settlement was arguably stronger in the 1980s and certainly in the 1990s than that for independence just now. And yet for 18 years the Tories blocked any constitutional change.

There appears to be no dynamic which implies the situation is different now and so long as Scotland appears to be split 50/50 on independence, there seems to be little pressure on a Johnstone administration to do anything other than ignore calls for a referendum.

Then, coinciding with the end of the Tory conference, came the outcome of the Supreme Court’s deliberations on two pieces of legislation from the Scottish Parliament challenged on the basis of exceeding the legal competence of the Scottish Parliament. This appears to have implications for a ‘go it alone’ Referendum Bill.

But while there are implications, it is important not to overstate them. Irrespective of the subsequent positioning of all concerned, this is primarily a story of shallow policy-making and shoddy drafting. Particularly in the case of the children’s human rights legislation, this appears to have been presentational first, thought-through second. Human Rights seem to have been treated like a ‘cost free’ way to appear to do good things, the impact of which is in the future as it requires individuals or organisations to take legal action to enforce the rights.

But from there the real problem was with the drafting of the legislation – rather than engaging with the constitutional difficulties with the approach these were simply bypassed by throwing in a clause that pushed the interpretation of this onto courts, effectively asking courts to adjudicate on a case-by-case basis of what was and was not legally competent.

This was incompetent drafting of an ill-thought-through proposal struck down on a basic interpretation of the law as it stands. This was neither a ‘strategic assault’ on the reserved powers of Westminster by the Scottish Government nor a ‘unionist plot’ to curtail or reduce the powers of the Scotland Act.

The lesson from three conferences and a court case appear to be fairly simple – the Tories are content with a logjam on the constitution and the SNP has no idea how to break that

That does not mean there is nothing we can learn, however. It does imply that the Supreme Court is going to rule fairly closely to the letter of the Scotland Act and is unlikely to grant much interpretative leeway in how it looks at disputes between Westminster and Holyrood.

It doesn’t rule out a successful defence of a legal challenge to a Referendum Bill, but it places an enormous weight on the Court’s interpretation of the extent of the Parliament’s ‘consultative powers’ in reserved areas. What it doesn’t do is give any greater reason for hope that a non-Section 30 Order referendum will be deemed legal.

This combined creates an unfortunate set of circumstances. In reality we’ve now had about seven years of stasis – almost all the key factors are where they were in 2014.

The SNP has a fairly slim mandate for independence in Scotland, the Tories have a mandate to say no from England. The two parties seem locked into electoral dominance for the foreseeable future but both have electoral bases which will respond to precisely the opposite positioning on independence. Labour is neither a credible government nor one sympathetic to a referendum. And the ‘settled will’ of Scotland remains settled for now – as in ‘evenly split’.

This is the only variable which is open to change in the near future. If opinion polls remain effectively 50/50, it isn’t even easy to build the kind of campaign (as in the 1980s and 1990s) which eventually led to devolution. Without real and consistent ‘weight of majority’ support for Scottish independence, there isn’t an obvious factor which will break the current stalemate.

The lesson from three conferences and a court case appear to be fairly simple. The Tories are content with a logjam on the constitution and the SNP has no idea how to break that. Tories can’t change Holyrood or the Scottish voting patterns, the independence movement can’t change Westminster or the voting patterns of the rest of the UK.

That leaves that one variable which appears to be ‘in play’ – public support for Scottish independence. Unless steps are taken to change that, all the indicators are that stalemate will define the 2020s.

Pin It on Pinterest

Share This