As someone who has been banging the drum for Westminster to legislate to secure the Union, it might seem churlish to gripe when legislation is proposed. In my defence, I am Scottish: churlishness is my birthright and griping my national pastime. So allow me to explain my grievances with the referendum act, which the Sunday Times says Liz Truss will introduce to ‘wreck the campaign for Scottish independence’.
For one thing, I’m a traditionalist in these matters. I prefer the wrecking of the campaign for Scottish independence to be left to the experts: campaigners for Scottish independence. For another, passing a referendum act plays into the nationalist narrative that another referendum, or even independence itself, is inevitable. It is not. Years ago, I tried to draw up suitable encumbrances on independence but the very exercise is defeatist. There need never be another referendum.
The legislative scheme being proposed establishes a three-step journey to Scottish independence. Step One is public appetite. This would require ‘evidence for more than a year that at least 60 per cent of voters want a new referendum’. A government source reasons to the Sunday Times: ‘After all, the SNP said after the 2014 referendum that they would not seek another one until polls consistently showed more than 60 per cent of the public would vote to leave the UK.’
The referendum act sounds like an attempt to find a shortcut through the UK’s constitutional woes
This is the statistical equivalent of the ‘once in a generation’ test Liz Truss and others have unfathomably adopted. Whether it’s demanding a year of polls with support for another referendum above 60 per cent or saying a generation hasn’t yet passed, these are the SNP’s tests, not Westminster’s. There is a reason they established them in the first place — because they believe they are surmountable. Dragging up the SNP’s old talking points to zing them for hypocrisy is all well and good but writing their strategic goalposts into law is rank foolishness.
Twelve months of six-in-ten Scots wanting another chance to break up the UK might sound robust, but is it? Across eight ComRes polls between May 2021 and June 2022, median combined support for another referendum within five years stood at 49 per cent. Across seven Panelbase polls between March 2021 and April 2022, the figure was 54 per cent. So 60 per cent is a hurdle but you wouldn’t have to be Aries Merritt to clear it.
Let’s imagine a not-too-distant, all-too-plausible future in which the UK is in recession, burdened by vast public sector debt, and the prime minister of the day decides to embark on a programme of austerity. Let’s imagine, too, that the SNP still controls the Scottish government. Financial hardship, small businesses closing, public sector workers (22 per cent of the Scottish workforce) at risk of redundancy, and an entire devolved government working overtime to frame it as Westminster victimisation of the Scots. In these circumstances, there would be potential for short-term economic anxiety to be channelled into support for independence and to produce polling that would not be seen in more prosperous times.
Step Two is ministerial discretion: do ministers think another referendum should be held? Straightforward enough, though the government can expect questions about just how much discretion the Act would give ministers.
Step Three is the holding of a referendum, with the proviso that 50 per cent plus one of votes cast would not be sufficient for victory. Instead, a majority of all eligible voters in Scotland would have to vote for secession for the result to be valid. It’s hard to tell whether this provision was deliberately included to troll the devocrat establishment or whether the architect of this would-be law has really never heard of George Cunningham.
Not only would this stir memories of 1979, separatists would note that a similar rule would have spiked the Brexit vote. There might be another problem. Among the many extra powers the Tories surrendered to Holyrood in 2012 and 2016 was substantial competency over elections. I’m not a lawyer and couldn’t tell you whether the SNP would be able to work around an enhanced majority requirement by legislating for compulsory voting, but I can tell you they would use every power at their disposal to overcome it.
An enhanced majority is not a bad idea in itself but there are more robust ways of doing it. In Australia, constitutional referendums are only carried if they secure a majority of votes across the Commonwealth and a majority of votes in a majority of states. In Canada, the House of Commons decides post-facto whether a sovereignty referendum represents ‘a clear expression of a will by a clear majority of the population’. Whilst the turnout is one consideration, others include ‘the size of the majority of valid votes cast in favour of the secessionist option’ and ‘any other matters or circumstances it considers to be relevant’. None of this is well-defined, and is so by design: specify the barriers to independence and you tell secessionists exactly what they must do to achieve it.
The referendum act, at least as described by the Sunday Times, sounds like an attempt to find a shortcut through the UK’s constitutional woes. There are no shortcuts. Westminster must be in it for the long haul. Too much damage has been done to the UK constitution in the past quarter-century. It will take time and more than a Referendum Act to repair.
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