You might have seen the other day that a couple of SNP MPs tweeted a piece by the constitutional law experts Chris McCorkindale and Aileen McHarg, setting out their thoughts on the legality of an independence referendum. It was suggested that the article would explain why the Scottish Government have settled on the approach they have. So I read it with an open mind, wondering if it would identify a legal opportunity that will arise if we're cautious enough at this stage. But by the time I'd reached the end, I didn't know whether to laugh or cry, because it's infused with magical thinking. It summarily dismisses pretty much every practical step that could realistically be taken to bring about a mandate for independence (and in some cases the dismissal is based at least partly on rather vague and dubious political arguments rather than legal ones), but then suggests that an SNP win in next year's Holyrood election may somehow break the logjam, without really explaining how. And I thought: "Seriously? Is that honestly the plan? The last three immaculate SNP mandates were ignored by Westminster, but next time it's going to be different because reasons?" If that really is the "strategy", there's going to have to be a rethink, because the flaw in it can be spotted from outer space. In fairness to the authors of the article, it looks like they wrote it before the Secretary of State for Scotland announced that no Section 30 order would be granted until after Nicola Sturgeon dies from old age - in other words their reasoning is a little out of date, because they were working on the assumption that a post-2021 Section 30 order hadn't yet been ruled out by the Tories. It most definitely has been now.
I'm not going to take issue with the legal arguments in the article, but as stated above, the critique of alternative routes to an independence mandate is often based on political points, or points that hover ambiguously between law and politics. And some of those points really ought to be challenged. (For the avoidance of doubt, the words in italics below are paraphrases rather than exact quotes.)
'There is no legal requirement for an independence mandate to be secured via referendum but there is arguably a constitutional requirement due to precedent.' This reminds me of Alan Trench back in the day arguing on his Devolution Matters blog that there was a de facto constitutional bar on Westminster legislating on devolved matters without consent, due to the precedent of the Sewel Convention being repeatedly respected by successive UK governments. And yet when a Tory government suddenly decided not to respect the Sewel Convention anymore, the Supreme Court judges said "that's fine" because they were only impressed by the letter of the law, not by informal constitutional conventions or established practice. In any case, major constitutional changes have in the past been enacted in the United Kingdom without a referendum - most obviously, there was no referendum before the Heath government took the UK into the Common Market in 1973. It may have become the norm since then to seek constitutional mandates by referendum, but if that option has now been made much more difficult due to factors outwith our control, it seems logical and natural to at least consider reverting to the previous practice of seeking a mandate via a scheduled election, and it's a statement of the obvious that there is no constitutional bar on doing so. (Persuading the UK government to respect that mandate would be harder, of course, but that's a separate issue - the first step is to actually get the mandate.)
'If the Scottish Parliament pass a Referendum Bill without a Section 30 order, the UK government might pass legislation to unambiguously make the holding of referendums a reserved matter.' Well, yes, it might do, but then it could pass such legislation at any time, and so far it has not done so, presumably because there would be a political cost attached. If McCorkindale and McHarg feel it's a viable strategy to seek yet another mandate for a referendum in the 2021 election and cross our fingers that it's respected this time, I'm struggling to see why it would be any less viable to pass a Referendum Bill and cross our fingers that there is no blocking legislation at Westminster.
'A referendum held without a Section 30 order might be boycotted by unionists.' Yes, it might be, and in that case the challenge for the Yes campaign would be to secure enough votes (roughly 1.8 million) to demonstrate that victory would have been secured even with a 2014-style turnout on both sides. It's not an argument against holding such a referendum.
'Using the 2021 election to secure an outright mandate for independence wouldn't work for three reasons: a) the Scottish Government have already said they are opposed to the idea, b) the UK government wouldn't accept the mandate, and c) the process wouldn't be accepted as legitimate in Scotland, the UK and the international community.' These are all circular arguments. The first one is a nonsense because to pursue this strategy the Scottish Government would first have to change its mind on the principle of using an election to seek a mandate, and if it changes its mind it would clearly no longer be opposed to the idea! Similarly, if the Scottish Government and UK Government reach an agreement that retrospectively recognises an election result as a mandate for independence, all doubts over legitimacy would fall away. The international community certainly wouldn't raise any objections if the UK government were on board.
So it all boils down to the central question: how do you get the UK government to respect a mandate? And McCorkindale and McHarg have failed to explain why challenging London to respect an outright mandate for independence is any less promising a strategy than challenging London to respect a fourth mandate to hold a referendum. I would argue that it's a more promising strategy, because it would decisively move the narrative forward. The SNP would no longer even be arguing for a referendum - it would be arguing that Scotland has already opted for independence and would be seeking negotiations to bring that into effect. If the London parties (most obviously Labour and the Liberal Democrats) wanted to counter that by saying that major constitutional changes should only happen by referendum, it would be up to them to make the case for a second independence referendum, which would radically change the dynamic.
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Poll fundraiser: Thank you to everyone who donated - the fundraiser reached its target within only a few hours! It'll take at least a few days before I can access the funds (that would have been the case with pretty much any crowdfunding platform) but I'll move forward as quickly as I can. Given that independence has shot up the news agenda over the last 24 hours, it's entirely possible that a mainstream media outlet may finally produce a poll over the coming days, but even if that happens I'll still go ahead - there'll be no harm in more than one poll.