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Is Scotland heading for a Catalonia-style constitutional meltdown?

Adam Forrest
·10 min read
Scottish independence protesters in Edinburgh (PA)
Scottish independence protesters in Edinburgh (PA)

If you’re one of those people who hoped the end of Donald Trump’s rule would make politics boring again, prepare to be disappointed. Boring is a long way off.

Since the 2014 referendum on Scottish independence – the one in which the Queen was said to have “purred” with satisfaction as the UK remained intact – Britain’s age of chaos has seen three general elections, the Brexit wars and the Covid crisis.

Nicola Sturgeon and her Scottish National Party team are hoping to make 2021 another year of high drama and upheaval.

The SNP leader is pushing for a second referendum on Scottish independence – promising to hold a “legal” vote on a breakaway if a majority of pro-independence MSPs are returned to the Holyrood parliament at next month’s election.

Boris Johnson insists the UK government will not grant the powers needed to stage a referendum, setting up a high-stakes stand-off which could dominate the political scene for months, possibly years, to come.

It raises the possibility of a “wildcat” referendum. The last time we witnessed one of those was in Catalonia in 2017, when the Spanish government launched an ugly crackdown and separatist leaders were forced into exile.

So what’s going to happen after the 6 May election? The Independent spoke to leading political figures and legal experts about the possibilities ahead if the SNP emerges triumphant and claims a mandate for indyref2.

No one wants or expects a repeat of the violence seen in Catalonia. But a similarly dramatic political impasse – a constitutional crisis involving court battles and street protests – now looms just over the horizon.

What will Sturgeon and the SNP do if she gets a majority?

Most polls during the Holyrood election campaign have put the SNP on course to win a narrow majority. Even if the SNP has to rely on the pro-independence Scottish Greens to form a majority in favour of indyref2, Sturgeon will push ahead with plans for another vote on separation.

She is widely expected to demand the UK government grants a section 30 order (a provision in the Scotland Act of 1998) so the Scottish government can legally hold another referendum; the same process which saw then-prime minister David Cameron agree to the first referendum in 2014.

However, Johnson has made clear he believes referenda on Scottish independence should be “once in a generation” events – suggesting that 40 years between votes was a “good sort of gap”.

But the PM knows that refusal to grant a section 30 order will prompt carefully orchestrated outrage from Sturgeon.

Alex Neil, the retiring SNP MSP, thinks Johnson will come under intense pressure to give way if the pro-indy majority at Holyrood (70 SNP and Scottish green MSPs) is made significantly larger next month.

“If you end up between 80 and 90 pro-independence MSPs, it makes it politically impossible for a prime minister to ignore that mandate,” says Neil. “You would be saying no to a democratically elected parliament.”

Nicola Sturgeon with Boris Johnson at Bute House in 2019PA
Nicola Sturgeon with Boris Johnson at Bute House in 2019PA

If Johnson does refuse a vote, what will Sturgeon do?

The SNP leader’s plan B will be to pass an independence referendum bill in the Scottish parliament to hold a vote without consent from Downing Street. This would likely spark a legal challenge from Johnson’s government.

Dr Elisenda Casanas-Adam, lecturer in public law at Edinburgh Law School, says it will be up to the UK Supreme Court to decide whether a referendum without a section 30 order would be allowed.

“The Scottish government could argue that a referendum would only be advisory, that it would be done to simply consult the Scottish people,” says Dr Casanas-Adam.

“And the UK government’s position would be that the purpose of asking that independence question would be, ultimately, about the possibility of breaking up the union – so it could not be in the competence of the Scottish government to hold it.”

She adds: “I think it’s an open question what the Supreme Court would decide. It could go either way. The court will certainly by under huge pressure, politically, but there are strong legal arguments on both sides.”

Alex Salmond and David Cameron agreeing to 2014 referendumPA
Alex Salmond and David Cameron agreeing to 2014 referendumPA

If the court rules against a referendum, what will Sturgeon do?

Sturgeon and the SNP will hope Johnson’s refusal to grant a referendum pushes poll support for independence up towards 60 per cent. Confident of sufficient backing among Scots, she could decide to stage a “consultative” or “advisory” independence vote without consent from Downing Street.

The bold move may depend on the firmness of a court ruling; the precise wording of a judgment on what it does and does not say in the Scotland Act of 1998.

This would take us into unprecedented, Catalonia-type territory. Scottish Conservative party leader Douglas Ross has already pledged to “boycott” any “wildcat” referendum Sturgeon could decide to stage without UK government consent.

“That wildcat scenario – I don’t think you can say it definitely won’t happen,” says Andy Maciver, the Scottish Tories’ former media chief. “But it would be a failure by both governments if it got that point.”

He thinks Sturgeon will remain reluctant to do anything radical enough to spook the EU, since the SNP’s plans involve an independent Scotland attempting to re-join the bloc at some point in future.

“I think if a wildcat referendum were called, the Tories would lead a boycott campaign,” says Maciver, who now runs the Message Matters PR company. “And I think a boycott would be successful, in the sense that union-supporting Tories in Scotland would not take part and it would delegitimise the whole thing.”

Dr Casanas-Adam – who is from Catalonia and knows the political situation there well – doesn’t think we will see a repeat of the scenes from 2017, when Spanish police forces seized ballot boxes and arrested campaigners to prevent the referendum staged by separatist leaders.

Spanish police drag man outside polling station in 2017Getty
Spanish police drag man outside polling station in 2017Getty

“The strong-handed reaction by the Spanish government – those terrible images, I would hope it won’t come to that. I think the Catalan precedent is a warning to both sides. The recent Catalan elections have again returned a pro-independence majority, so the issue has not gone away,” says Dr Casanas-Adam.

“But I think many [separatist] people in Catalonia would recognise they were a bit naive about trying to force the issue and expecting EU and international recognition.”

She adds: “I think Nicola Sturgeon will want to secure a process that would be recognised by everyone. It becomes hard to go back once you go down a certain path.”

What other options are available to Sturgeon?

Alex Neil – who remains loyal to the SNP, but is also a friend of Sturgeon’s Alba party rival Alex Salmond – thinks Sturgeon must continue to push for independence, regardless of Downing Street’s stance.

The retiring MSP has previously said he thinks a “consultative” referendum could be legal even without UK government consent – but he doesn’t want Sturgeon and her bloc to get too hung up on legal matters.

“If [Boris] Johnson chooses to undermine Scottish democracy … the pro-independence MSPs would have to decide what to do,” he says. “They cannot just sit back for five years and say, ‘Oh that’s a shame – Johnson won’t give us a referendum’.

“They have to engage in other tactics to force Johnson to accept the will of the Scottish people. You could force another election to the parliament on a mandate for independence itself. I’m not recommending it, but it’s one option – I think there are other options.”

Salmond – keen to be the hard man of the indy cause – has talked about an ongoing campaign of street protests and an attempt to mobilise international support for Scottish “self-determination”, efforts which Neil supports.

“You cannot rule another country against the wishes of the people of that country … that’s what Boris Johnson will find out,” he says.

Independence supporters stage protest outside Scottish parliament last yearPA
Independence supporters stage protest outside Scottish parliament last yearPA

What’s the Labour party position on all of this?

Labour leader Keir Starmer and the Scottish party boss Anas Sarwar have both talked vaguely about more devolution for Scotland. But for now, they remain firmly opposed to another referendum.

Retiring Labour MSP Neil Findlay says he has been “extremely frustrated” by his party’s refusal to engage on indyref2. He has been a leading advocate of a referendum with a third option on the ballot – a “devolution max” or devo max option that would see almost all powers transferred to Scotland.

“If the SNP wins a majority, Labour cannot just continue to say, ‘No – let’s focus on other issues.’ It’s untenable. Labour has appeared reluctant, curmudgeonly and grumpy about the whole issue when they should be positive and enthusiastic about constitutional change.”

Maciver thinks senior Scottish Labour people are not so opposed to another referendum as they appear to be right now, and he believes it could be a matter of time before they back indyref2.

“I’m pretty certain Sarwar and those close to him understand that hitching themselves to a Tory ‘no, no, never’ approach is not the smart way to go. I suspect there could be situation where Keir Starmer and Anas Sarwar will back a referendum in the event of a clear SNP majority, even though they can’t say so during the election campaign,” says the PR strategist.

“When the argument becomes about how the referendum should be held, the idea of a third question of the ballot paper, the devo max option, might just get them somewhere.”

Dejected Yes voters in Glasgow on the night of the 2014 referendumPA
Dejected Yes voters in Glasgow on the night of the 2014 referendumPA

Could Johnson and his team at No 10 change their minds?

If Labour and Lib Dems were to back another referendum at some point in 2021, it would help the pressure on Johnson and his team to relent and start negotiations over the terms of an independence vote.

The PM is said to be “100 per cent against” indyref2. Yet some senior people in government are now considering whether it may be in their interests to face up to a vote sooner rather than later. “The time to do it would be in the middle of economic chaos, not when it’s all looking rosy,” one minister recently told The Sunday Times.

Senior civil servants are thought to have started planning for a referendum, should the PM decide to plunge ahead. Cabinet Office minister Michael Gove remains close to Scottish secretary Alister Jack. They – along with Douglas Ross, Ruth Davidson and Scottish Tory party director Mark McInnes – remain trusted voices at No 10 on scenario planning and SNP thinking.

“I don’t think No 10 has a clear position at the moment,” says Maciver. “The thing the senior people in the [Tory] government have failed to understand is, the longer it goes on, the worse this gets, and the less chance they have of winning a referendum. To be crude, there will be 10 more years of deaths among No voters.

“My understanding of what’s going on behind the scenes in the government is that there are now influential voices saying, ‘You cannot keep refusing’,” he adds.

“If it all comes down to one person in influencing Boris Johnson, it’s probably Michael Gove. From what I hear, Gove has become a bit more closed to the idea of a referendum recently. But he may think more clearly about it once the [Scottish] election is done.”

It is now only a little over two weeks until the picture comes into sharp focus. Grandiose statements will be made on election night. Feverish late-night strategy sessions will be held. And the fun and games shaping Scotland’s future will finally begin.

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