The case for a consultative independence referendum

I've been having an exchange on Twitter with Iain Macwhirter over the last 24 hours about the possibility of holding a consultative referendum on independence in the absence of a Section 30 order.  I think it might be worth expanding on some of my points here, because 280 characters is a rather limiting format.

* First of all, there seems to be a perception that those of us who advocate a consultative referendum are arguing that it would somehow be superior to a Westminster-approved process.  That's not the case at all.  Of course a Section 30 order would be preferable, because it would dispense with any uncertainties caused by the possibility of a legal challenge, and would give voters greater confidence (albeit not absolute certainty) that their decision would be enacted.  So by all means Nicola Sturgeon should renew her request for a Section 30 order and await Theresa May's answer.  But if May once again says "no", a consultative referendum is an answer to the question "what then?"  And there does actually have to be an answer to that question - it's not as if we're going to say "thank you so much for considering our request, Prime Minister, and we humbly accept your decision".  And nor is it credible for us to keep seeking mandates for referendums at successive Holyrood elections if we know that the answer is still going to be "no" and if we have no intention of taking any further action.

* There also seems to be a perception that proposing a consultative referendum is synonymous with preparing the ground for UDI.  That'll be news to Alex Salmond and John Swinney, because under their leadership the SNP went into no fewer than four Holyrood elections (1999, 2003, 2007 and 2011) committed to holding an independence referendum within the Scottish Parliament's existing powers, and without any requirement for a Section 30 order.  The purpose of such a vote would not have been to provide a justification for UDI, but rather to secure a mandate for the Scottish government to enter into negotiations with the UK government on an independence settlement, which would then have been legislated for by strictly constitutional means.  Of course in the event of a future Yes vote the ball would be in the UK government's court - no-one can force them to respect the Scottish people's decision or to negotiate.  But I think Iain and others seriously underestimate just how difficult it would be for Westminster to completely ignore such a vote, as long as the turnout was at least respectable.  Psychologically it would be a game-changing moment, and the eventual outcome (albeit perhaps with a good few twists and turns along the way) would most likely be that either the mandate would be respected, or a compromise would be reached involving a further referendum held on an agreed basis.

* When I mentioned the possibility of a consultative referendum functioning as a gateway to a later Westminster-approved referendum, Iain reacted incredulously and suggested this meant I was conceding that a Section 30 order would ultimately be "needed" anyway, and that my argument was therefore a circular one.  Not at all: it would be infinitely preferable for the UK government to simply respect the outcome of a democratic vote, and that would very much be Plan A.  But if they remain intransigent, we'd then have a political dispute that can only be resolved by negotiation and compromise.  In other words, the Yes vote would then become very useful leverage.

* No matter how many times the claim is erroneously made, it is simply untrue to suggest that a consultative referendum would be "illegal", "non-legal" or "extra-legal".  This is not Spain - holding a democratic vote is not a criminal act in the UK, as Brian Souter proved by holding a private referendum on Section 28 in the year 2000, and as Strathclyde Regional Council proved by holding a consultative referendum in 1994 on the UK government's proposals to remove control of water from local authorities.  In fairness to him, Iain conceded that nobody would end up in jail for organising a referendum without a Section 30 order, but he insisted that "extra-legal" was appropriate language because the vote would not be legally binding.  That's a peculiar argument, because of course the 2014 referendum was not legally binding either, even with a Section 30 order.  David Cameron's government made a political commitment to respect a Yes vote, but there would have been no way of holding them to that commitment through the courts.  And if you think the distinction between a political commitment and a binding decision is a meaningless one, just look at the Supreme Court's refusal to uphold the Sewel Convention only last year.  There was actually a lot of concern in 2014 that a Yes vote might not necessarily lead to independence - I didn't share that view at the time, but the current uncertainty over whether Brexit will ever happen does illustrate the point rather nicely.  So essentially the only difference between a consultative referendum and the 2014 vote is that this time we probably wouldn't have a political commitment in advance that the result would be respected, but we'd nevertheless still be looking for that commitment once the UK government are confronted with the reality of a Yes vote.

* I'm puzzled by the automatic assumption that a consultative referendum would be boycotted by unionists.  The most likely way for a vote to come about would be for the Scottish Parliament to legislate for a Referendum Bill, which would then be probably be challenged in the Supreme Court, where it would either be upheld or struck down.  Would unionist parties really boycott a referendum that had been upheld as the law of the land by the United Kingdom's highest court?

* The main thrust of Iain's argument is that, as a result of the Edinburgh Agreement, it is now the established "constitutional position" that a referendum can only happen as the result of a Section 30 order.  That's self-evidently untrue, because the signing of the Edinburgh Agreement didn't in itself alter the British constitution one jot.  It's fair to say it did create a political precedent, but the British constitution is comprised of constitutional law and not of political precedents.  In any case, Theresa May has already binned the precedent of the Edinburgh Agreement by refusing to even enter into discussions on a Section 30 order when the elected Scottish Parliament voted to request one.  Clearly if one precedent no longer applies, something else has to take its place.

When I challenged Iain on his claim that a Section 30-approved referendum is required by "the constitution", he prayed in aid the fact that the current policy of the SNP leadership is that a Section 30 order must be sought.  I must say I'm bemused by the notion that SNP policy carries some kind of weight in British constitutional theory!

* Iain talked in reverential terms about "applying for a Section 30 order" as if that is a recognised constitutional procedure.  As far as I can see, what happened in 2017 is that Nicola Sturgeon sent a letter and it was completely ignored, which tells a rather different story.  There is pretty obviously no formal "application" process recognised by the UK government.

* As I understand it, Iain's alternative to a consultative referendum is to wait until 2021 and then seek yet another mandate for a referendum at the scheduled Scottish Parliament election.  That implicitly suggests he expects the UK government to cave in to democratic pressure - and yet he ridiculed the idea that the democratic pressure of a Yes vote in a consultative referendum could possibly yield any results.  That seems somewhat contradictory.  Essentially, any non-UDI route to independence depends on the belief that London will not behave like Madrid, and will ultimately respond to the verdict of the voters.  So the only question is which "democratic event" would be the most appropriate and effective way of securing the necessary leverage.  The case for a consultative referendum is that it avoids a needlessly long delay that clearly would suit the UK government down to the ground, and it also avoids creating a precedent that London can simply say "no" to a mandate for a referendum at its own whim.