Prime Minister Liz Truss has taken a tough line on Scotland in the leadership campaign, and will continue to resist the demands of the Scottish Government for a referendum in 2023. The Scottish Government’s only other feasible option for a 2023 plebiscite – an advisory referendum – could be removed as soon as next month when the Supreme Court publishes its response to the question of whether a non-binding vote is within the powers of the Scottish Parliament.
If, as expected, the option of both a binding and non-binding legal referendum in 2023 is ruled out, the Scottish National Party (SNP) will seek to make the next UK general election a de facto referendum on independence. If the SNP and other pro-independence parties do well in the election – and particularly if they secure over 50% of the vote – it will pose a substantial challenge to the incoming UK government. Currently, they are polling just shy of the 50% mark. Such an outcome would continue to test the limits of the UK Government’s “now is not the time” policy, and ensure the future remains highly unpredictable.
During the leadership campaign, Truss drew applause from Conservative audiences in Scotland and elsewhere in the UK by promising to be tough on the Scottish Government. Central to this is her refusal to contemplate a second independence referendum during her premiership. She has also made a commitment to strengthen scrutiny of the Scottish Government by widening the scope of parliamentary privilege for MSPs to allow them to reveal sensitive material without fear of prosecution. Further, she has committed to increase the presence of UK government ministers in Scotland and to by-pass the Scottish government by dealing directly with local government in Scotland. Recent media speculation suggests that she may also act to restrict the circumstances in which a referendum can be held (by requiring polls to record support for independence of at least 60% for over a year) and raise the threshold for a ‘yes’ vote in any future referendum to over 50% of the total electorate (not just those who turn out to vote).
On the face of it, this is a return to the more ‘muscular’ approach to relations with Scotland as seen in the early days of the Johnson government. The pay-back on this strategy was limited; most polling suggests that people in Scotland want the two governments to work together rather than take antagonistic positions and the Scottish government tends to get the better of arguments about who best represents the interests of Scotland. Despite some discontent with the way in which the SNP is governing, it will remain an uphill battle for the UK government to shift the dial in terms of support for the Union in Scotland.
The working assumption of the UK government is that it has the power to determine whether a referendum on independence should be held or not, as it did in 2014. This is because constitutional issues are reserved to the UK government under the devolution settlement. The Scottish Government is challenging that view, arguing that the Scottish Parliament has the power to authorise an advisory referendum. It has applied to the Supreme Court for a ruling on this issue.
The Supreme Court is likely to issue its ruling around 12 October, just after the SNP party conference. It may decline to answer the question on the basis that it is hypothetical; alternatively, it could make a definitive ruling. If the latter, most legal opinion predicts that it will rule that the holding of a referendum is outwith the powers of the Scottish Parliament.
Should this be the outcome, the SNP will claim that the ruling, together with the refusal of the UK government to sanction a legal referendum, is denying the Scottish people their sovereign right to determine their own future. This argument would form the platform for their next general election campaign.
As mentioned, the SNP and the Scottish government are not short of their own problems. After fifteen years in power, the party’s performance in key areas such as health and education is coming under increased scrutiny. Totemic issues like the number of drugs-related deaths in Scotland continue to undermine the Scottish Government’s record. Despite her length of time in government, it is likely that Nicola Sturgeon will remain in post in order to hold the nationalist cause together, at least through to the next UK general election. Despite some fraying at the margins, the SNP continues to be a formidable electoral machine, a strength that will continue to serve the party.
Whenever the next general election is held, it is likely that the future of Scotland in the Union will be a central feature of the campaign. Given how the SNP will be campaigning, the Conservative party will be tempted to claim, as they did successfully in the 2015 election, that a minority Labour government will be in hock to the SNP and thereby threaten the future of the Union. Labour will aim to end that debate well before the election by conclusively ruling out any sort of deal with the SNP.
Whoever forms the government after the election will have to face the continuing nationalist challenge. Much depends on how well the SNP and other nationalist parties perform. If in line with previous outcomes, then the incoming government will have a difficult Scottish question to answer, amongst SNP claims of a renewed mandate for a referendum.
Led by Gordon Brown, the Starmer Commission – a review of the UK constitutional framework to inform Labour’s Union policy - is due to report later this year.
The Commission’s proposals are likely to include ideas for further devolution in Scotland but set in the context of a wider change to the way that the UK is run. This would include substantial devolution in England, replacement of the House of Lords by a Senate of the Nations and Regions and statutory principles of inter-governmental cooperation. It remains to be seen whether the Commission will set out its views on the conditions under which another independence referendum might be held.
How much of this blueprint will be adopted by a Labour government is uncertain. If in coalition, the Liberal Democrats and Greens would likely be supportive. Despite this support, an incoming Labour government would still face a multitude of challenges; how much political attention it would choose to focus on constitutional change remains to be seen. Moreover, there are no guarantees that the sort of refreshed constitutional framework it proposes for the UK would, at least in the short term, cause much of a shift in Scottish public opinion.
Philip Rycroft advises clients on UK politics, particularly concerning devolution and the future governance of the UK. Philip was previously head of the UK Governance Group in the Cabinet Office, with responsibility for advising ministers on all aspects of the UK constitution and devolution. He wrote this piece with input from Rhydian Jones and Anna Trevers.
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