Nicola Sturgeon has a key advantage in her independence fight

29 June 2022

1:59 AM

29 June 2022

1:59 AM

Nicola Sturgeon has unveiled her plan for another referendum on Scottish independence. The plebiscite – which Westminster will have to legislate for – will use the same question as in 2014 (‘Should Scotland be an independent country?’), and take place on 19 October 2023. The Lord Advocate, one of Sturgeon’s ministers, has referred the provisions of the Bill to the Supreme Court to determine whether they are in line with devolved powers. Writs have been served on the UK Government this afternoon. If the Court rules against the SNP, they will fight the next general election solely on independence, which Sturgeon asserts would be ‘a de facto referendum’.

We can expect the London political, media and think-tank class to now wet their pants. They always do whenever Sturgeon rattles her sabre. Brace for impact from people who have read entire Wikipedia entries about Scottish politics clamouring for yet more powers for Holyrood or the blessed viaticum of federalism. The devolution industry’s endless search for a deal that would lead the SNP and its supporters to renounce independence and embrace the gospel of Unionism is a faith-based initiative. In fact, at this stage, it is bordering on fundamentalism. There have been three great set pieces of devolution: the initial Blair tranche in 1998 followed by Cameron I (2012) and Cameron II (2016). All three, we were assured, were certain to strengthen the Union and sate the beast of separatism. Instead, after 15 dismal years in power, the SNP is using the embryonic state Westminster built for it to directly challenge Westminster’s sovereignty. Weakness is generally punished in politics and more importantly it deserves to be. Few governments have deserved anything as richly as Westminster deserves today.

Lifelong devosceptics and those of us who arrived more recently have spelled out at length the dangers of leaving devolution unreformed. Devolution reform exists on a sliding scale, from mere tinkering to thoroughly overhauling the current settlement. The milder forms of this are, perhaps unsurprisingly, procedural measures. This includes a Clarity Act, modelled on legislation passed by Canada in the wake of the 1995 Quebec referendum, in which the province voted by the narrowest of margins against declaring sovereignty. Under the Act, it is not enough that a province votes by majority to become independent. The House of Commons must satisfy itself that the result shows ‘a clear expression of a will by a clear majority’ before the government can enter into negotiations for the province to break away.

Proponents of a UK Clarity Act typically argue for statutory specifications of when a referendum may be held, who decides on the question, and whether a supermajority is required for secession. This is the weakest of safeguards against the constant threat of separatism. For one, the entire premise is that Scotland’s place in the Union hasn’t been resolved and will be the subject of another referendum one day. For another, setting even a high bar to secure another plebiscite would only galvanise nationalists by giving them a target to aim for.

The next step up would be to amend the Civil Service code and/or the Scotland Act to forbid civil servants assigned to the Scottish Government and its public bodies from undertaking any activities relating to independence. If the UK Parliament decided to grant another referendum one day, the relevant legislation would have to provide for the temporary suspension of this rule for an appropriate period before polling day. This would partly remedy one of the most grievous errors of devolution — handing Scottish ministers their own quasi-state, which the SNP has used to wage war on the UK state — but it still begins from the assumption that another referendum could, or should, take place eventually.

A more enhanced procedural reform would be for Westminster to legislate an amendment to the Standing Orders of the Scottish Parliament stipulating that questions and answers about reserved matters, including independence, are out of order. Both this and the civil servant rule would not prevent separatist parties from campaigning for independence. They would be free to do so and, where a separatist party was in government, its special advisers could still carry out independence-related duties. However, the loophole allowing secessionists to use the institutions of devolution to dismantle the state would be substantially closed. This would have the happy side benefit of ruining the cosy set up Unionist parties have at Holyrood. They rail against independence but won’t countenance any reform of devolution because railing against independence is their entire electoral strategy. Goodbye to that.

As for the more robust measures for countering the SNP menace, all would require new laws. First up is an idea first floated on Coffee House by Glasgow University law professor and former MSP Adam Tomkins. He suggested legislating to create a legal duty on public bodies to ‘facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives’. When the learned professor first advanced this solution, there were howls of protest from the Scottish nationalists about his remedy being typical of the Brits’ contempt for democracy. In fact, Tomkins’ proposal was taken verbatim from Article 4 of the Treaty on European Union, the rulebook of the organisation the SNP wants independence in order to join.

More comprehensive would be a new Act of Union. Among its provisions would be a reassertion of the UK as a unitary state in which Westminster is sovereign, a recalibration of devolved and reserved powers and a prohibition on expending Scottish parliamentary or ministerial resources on reserved matters including independence. The advantage of this approach is that it is not simply about frustrating independence but about reasserting, reviving and renewing the Union for the 21st century. It would get the Union off the defensive and put national unity at the heart of the policy and legislative agenda.

Arguably the most thoroughgoing expression of devolution reform would be to legislate for indivisibility. This would make the question of independence entirely academic by establishing in statute that the UK is an indivisible or indissoluble state. Jack Straw called for this change in the law after the No vote in the 2014 referendum. Such a move would have the Scottish separatists and their ultra-devolutionist fellow-travellers up in arms but, again, they need only look to the very EU nations they long to emulate. Germany, France, Spain, Luxembourg and Finland are among the European countries with constitutional provisions making them indivisible.

In the end, it is not about independence or referendums or finding new and exciting ways to salami-slice the UK out of existence. It is about sovereignty. Where does political authority lie in this country: with the UK Parliament or with the rival parliaments it foolishly set up in opposition to itself? It is about power: who has it and who doesn’t. (The answers are usually a) whoever is willing to use it and b) whoever lacks the will to do so.) Finally, it is about confidence. Nicola Sturgeon is driven by her absolute, unquenchable faith in an independent Scotland. Few on either the Treasury or opposition benches at Westminster give the impression of having a similarly steely faith in the United Kingdom. This fight will not be won with more powers or extra spending or graphs about the financial viability of an independent Scotland. The victors will be those with the greater reserves of national self-confidence. Scottish ministers believe in their country, do UK ministers believe in theirs?

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