28 June 2022
The Scottish Independence Referendum Conundrum
Anthony Salamone on the dichotomy between the democratic arguments for a referendum and the realities of modern statehood
After months of intermittent anticipation, we now witness the Scottish Government endeavour to advance its promise of holding a new independence referendum by the end of next year. It is common these days to note the remarkable differences in Scotland’s substantive circumstances today compared to those at the 2014 independence referendum – in respect of Brexit, the coronavirus pandemic, the Ukraine war and the inflation crisis, among others. Equally relevant, however, are the serious contrasts in Scotland’s political situation vis-à-vis a referendum between then and now. Like before, a majority of the Scottish Parliament actively advocates a referendum taking place (and the same majority supports independence). Unlike before, no consensus exists across Scotland’s mainstream political parties on the issue; the UK Government has not agreed to a referendum; and a viable pathway to independence is not clearly in view. For over five years, beginning with Nicola Sturgeon’s letter to Theresa May on the subject in March 2017, the Scottish and UK Governments have been locked in the same simple, yet decisive, dispute: the former wants a vote, and the latter does not. A resolution to this intergovernmental divide continues to appear as elusive as ever.
As I have explored elsewhere, the root of the referendum dispute is competing interpretations of democracy and sovereignty in relation to Scotland within the United Kingdom, including whether the Scottish Parliament or the UK Parliament has greater legitimacy to represent the Scottish public. These issues existed in advance of the 2014 referendum, but they were rendered effectively inert because the Scottish and UK Governments decided to cooperate – to hold the vote, to respect its outcome and, if the result were in favour of independence, to make Scotland a state. Presuming that the first objective of the independence movement remains to establish an actual path to statehood for Scotland, the Scottish Government will have to forge a cooperative relationship with the UK Government on the matter at some point, regardless of their current mutual animosity. With its present commitment to holding a new referendum next autumn, the Scottish Government has put itself on a collision course with the UK Government. If that course is maintained, and neither side changes its positions, it is difficult to imagine how this situation could end well.
The referendum conundrum
The 2014 referendum established a number of constitutional precedents: the UK state accepted that Scotland could become independent; decisions on Scottish independence were given to the Scottish electorate alone (not the UK electorate); a referendum became the means for the Scottish electorate to decide whether Scotland should become independent. Given those precedents, it is evident that another referendum could take place in the future and that, depending on its result, Scotland could become independent. Since the Scottish electorate determines Scotland’s constitutional future, it is logical that the electorate should also determine whether a referendum takes place. The democratic means for the Scottish electorate to indicate its views on holding a referendum rests in its selection of its representatives – the members of the Scottish Parliament and members of the UK Parliament for Scottish constituencies. A majority in favour of a referendum currently exists in both cohorts of representatives. During last year’s Holyrood election campaign, the SNP and the Scottish Greens specifically pledged to hold a new referendum during the next parliamentary term (2021 – 2026) – and, together, they have a majority in the parliament. Accordingly, it is unsurprising that the Scottish Government feels confident in its democratic case for a new referendum next year.
At the same time, modern statehood requires far more than a people or land simply declaring itself independent. Today, statehood involves recognition by other states, including major powers, core partners and neighbours; membership of international organisations – most fundamentally, the United Nations and the wider UN system; and, for most European countries, integration into the European Union or a trajectory towards it. In my Right to Decide report, I define the constitutional outcome with all of these features as “effective independence”. For Scotland, I say that effective independence means: “the establishment of a sovereign Scottish state with full powers and widespread (if not universal) international recognition.” In practice, creating a viable pathway to independence for Scotland would require cooperation between the Scottish and UK Governments. As I outline in the same report, that pathway would consist of three principal stages, in the event of a result for statehood: (1) a referendum; (2) the transition and negotiations between Scotland and the residual UK; and (3) independence and international recognition. Given that Scotland would be separating from the UK, all three stages would inherently require partnership between Scottish and UK institutions. The need for extensive bilateral cooperation could not be substituted or bypassed.
In consequence, it becomes clear that the democratic arguments for a referendum and the realities of modern statehood are two distinct enterprises. The conundrum is now in evidence: a persuasive democratic case for a new independence referendum is not alone sufficient to secure a binding vote with the option of effective independence. In other words, a viable pathway to Scottish independence depends above all on the participation of the UK state. Moreover, the presence or absence of that participation is the prerogative of the UK state. Even if a unilateral referendum were found, by the UK Supreme Court for instance, to be competent or operative, that would only address the first stage of the pathway. The UK Government could not be obliged to negotiate meaningfully with the Scottish Government on delivering independence or to recognise Scotland as an independent state. This conundrum is rooted in the facts of contemporary international relations and it exists irrespective of its perceived unjustness or passivity. Those who desire a new referendum cannot simply dismiss the conundrum because it is inconvenient. Conversely, the UK Government must reflect on the rightness and sustainability of refusing to engage substantively on the matter of an independence referendum because it finds the subject unappealing. Regardless of political and legal realities, a resolution of one form or another to the dispute over a referendum should be found, in the interests of the public.
The European and international dimension
Having extensively analysed Scotland’s European and global relations, I have often commented on the paucity of informed political debate on the subject. That dearth of applied knowledge within the political system has practical consequences, beyond suboptimal public policy. In particular, it fosters inaccurate expectations of international relations and how external actors consider matters relating to Scotland. Most nations believe that they are special and unique. In our case, however, such beliefs are sometimes inflated, creating an artificially enhanced sense of Scotland’s relevance to the world. In reality, most policy-makers in the EU and beyond are not overly interested in the details of the Scottish independence debate. States are not going to change their interests or positions, in terms of their bilateral relationships with the UK, to support the Scottish Government in a dispute over an independence referendum. Frankly, most EU government officials would probably not feel much concern if a new referendum never happened and the independence debate were never resolved. The increasingly prevalent argument that the UK Government’s approach to the referendum dispute is not in accord with democratic principles is unlikely to generate much reaction from EU decision-makers. The EU has its own policies to manage and challenges to address – both in abundance.
In short, the EU and the rest of the world will deal with Scottish independence when necessary. If the Scottish electorate voted for independence in a future referendum agreed with the UK Government, the EU would undoubtedly be gracious in its official response. If Scotland applied for membership, after independence, the EU would consider that application in its usual way. To some degree, the EU would be involved in Scotland’s transition to independence, since the EU-UK Trade and Cooperation Agreement would need to be amended to extricate Scotland. Reopening the treaty would provide the UK Government with an opportunity to change other terms that it no longer found convenient – a prospect which would be likely viewed with concern by the EU. As in other contexts, it would be beneficial for proponents of independence to acknowledge that the transition to Scottish statehood would create new challenges for Scotland’s neighbours. If the Scottish Government pursued a unilateral referendum or other unilateral action, the EU and the wider world would in all likelihood follow the position of the UK Government, since the UK would be the state in question. Ultimately, other states would have no compelling reasons to extend themselves on the question of Scotland’s constitutional future. Such realities should be recognised, not dismissed, to avoid future surprise.
The cooperation imperative
A referendum with an option of effective independence should include both the endorsement of the UK Government and the support of mainstream Scottish political parties. Those features should ensure that the vote is binding and that Scottish politics will be in a position to accept its result. In practice, securing the former should deliver the latter. If the UK Government agreed to a referendum, it is probable that pro-UK Scottish parties would also support the vote. The reverse is, however, not necessarily true. Scottish political consensus on a referendum, while persuasive, would not guarantee acceptance by the UK Government. In any event, the cooperation imperative for the Scottish Government on an independence referendum should now be abundantly evident. If no consensus exists about holding a referendum, then why would it materialise about accepting the outcome? If the Scottish and UK Governments cannot negotiate with each other on a referendum, then how will they manage to negotiate potential Scottish independence? Whatever the arguments advanced, the issue of independence always returns at some point to the relationship between the two governments.
Accordingly, for a Scottish Government determined to establish a viable pathway to independence, its singular priority would logically be to secure the support of the UK Government. Given the present antipathy between the two administrations, such a mission would surely be challenging. It would likely demand dedication, ingenuity and compromise. More to the point, it would require the Scottish Government to treat its counterpart more like the government of a foreign state than a domestic political opponent. Tact and finesse would replace insults and broadsides. The SNP would have to separate constitutional relations and normal politics in the Scottish Government’s dealings with the UK Government – admittedly a significant change for a party which has built its ethos, in large measure, on eternal opposition to the Conservatives. The decisive question here is whether and how much the SNP would be willing to compromise in order to create a viable pathway to independence. The ultimate necessity of good bilateral cooperation between the Scottish and UK Governments on independence is inescapable. The test of whether such cooperation is ever established will determine whether Scotland has a genuine prospect of becoming an independent state.