In less than 100 days we may face a grave constitutional crisis. Before your summer holidays, a conflict between the Scottish and UK Parliaments could be a reality.
On 5 May Scots vote for a new Scottish Parliament. Seven weeks later it is the turn of the EU referendum across the UK. Another overall SNP majority in Holyrood appears to be a racing certainty. With respect to the EU, all the polls show Scotland voting to Remain.
The picture across the UK is far less certain. The ORB poll in last week’s Telegraph puts Leave ahead on 49% with Remain on 47% (4% undecided). The Brexit vote increases to 52% once based upon those who definitely plan to vote. Polls can be wrong, way wrong, but right now a Leave vote by the rest of the UK and Scotland choosing to Remain is a distinct possibility. It is widely expected that this would swiftly be followed by an SNP-dominated Scottish Parliament calling for a second independence referendum.
The SNP website is clear that “our manifesto for the Holyrood election will lay out the possible circumstances for any future vote on independence.” We await the manifesto but SNP supporters would be astonished if a UK Leave vote isn’t on the list as an obvious “possible circumstance”. However, no matter how many Scots and non-Scots may wish it, independence is not a matter for the Scottish people alone. Independence is reserved for Westminster.
Westminster could appease Holyrood. The SNP after all would have a mandate and the outcome of a second independence referendum would be far from certain, but Westminster may refuse. David Cameron, talking in July 2015, has already rejected any talk of a second referendum before 2020. MPs as well as many voters across the UK would protest that the referendum that was supposed to be the “once in a generation, perhaps even a once in a lifetime, opportunity for Scotland” had been held less than two years earlier. There would be irritation that once again the future of Great Britain as a political concept, our name and our flag would be in jeopardy. Westminster decided to allow the first referendum. Allowing a second is a very different matter.
Passions will ride high if a Scottish Parliament sees its democratic mandate frustrated and a UK Parliament insists the question has already been answered.
MPs will come under intense scrutiny to explain the basis for their decision to either defy or comply with the Scottish Parliament. Sadly, voters will look in vain for a mandate either way. Despite the experience of the 2014 referendum, all the 2015 manifestos were silent on whether they would support or reject a request for a second poll.
Mr Cameron and others might argue that they don’t need a mandate. After all, MPs approved the first independence referendum without one (Labour, Conservative and Liberal Democrat manifestos were silent on independence in 2010). Yet that was an unprecedented decision. All the major constitutional changes of recent generations had consent. Whether it was joining Europe (Heath’s 1970 manifesto), staying in Europe (Wilson’s pledge in October 1974), House of Lords reform (Blair 1997) or devolution itself (every Labour manifesto from 1974 to 1997), MPs could claim a mandate from their constituents. Similarly, we may disagree on whether to Remain or Leave but we cannot deny Cameron’s right to put the question to the people. The unwritten rule is that you need consent (a manifesto pledge) for constitutional change.
We would expect no less for, say, abolishing the monarchy. Technically, Parliament could do so tomorrow. Parliament may then find itself reminded by voters and media alike that it may have the power, but it wouldn’t have the right.
Manifestos matter. They are not perfect. Voters make their choice for any number of reasons which may have little to do with the minutiae of manifesto documents. Nonetheless, on the great questions of state – the constitutional stuff – they guide the electorate on where the prospective government will stand. Manifestos are as good as it gets; as good as it needs to be. The alternative is to make things up as you go along – not ideal when the fabric of the nation is at stake. Fundamentally, being able to trace our most profound laws to the consent of the people is at the heart of the rule of law itself.
Reasserting this principle provides the solution.
Whatever the legal position, most people in Scotland and the rest of the UK do perceive independence to be a matter for the Scottish people alone. The law ought to reflect the political reality. Future independence referenda should be approved by Holyrood and not Westminster – devolving independence itself. This is a profound change. It would require consent and patience – consent from the UK electorate in a manifesto pledge (2020) and from the Scots in the Scottish Parliament elections of 2021.
With independence no longer a reserved matter, the Scottish Parliament takes on an awesome power. The Scottish people, the British people, will expect it to be exercised wisely. The Scottish electorate may not thank their MSPs for this new power to be exercised too frequently or without good cause to expect success. All that will hold Great Britain together is trust and respect. It needs nothing more.
Of course none of this will materialise if Scotland votes consistently with the rest of the UK (Leave or Remain). There will be no case for a second referendum if the SNP does not secure an overall majority or defies its website and avoids a manifesto pledge (in which case independence should not rear its head until the subsequent Holyrood elections of 2021).
Irrespective of either result, it is right that Scottish voters in May and UK voters in June go to the polls aware of the implications of each and every vote. Great Britain and the peace of the realm may just depend on it.
