Stephen Daisley

The SNP has no mandate for a second referendum

The SNP has no mandate for a second referendum
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Tom Bradby got them started. On Friday night, the News at Ten anchor opined that ‘if the SNP can assemble a pro-independence majority’, he couldn't see ‘how it would be credible to deny them another referendum’. In fact, ‘it would make an absolute mockery of the principle of democratic devolution’. 

We can expect much more of this now that the Scottish Parliament elections are over. While the SNP fell short of a majority, pro-independence parties combined crossed the 65-seat mark thanks to the Scottish Greens, a nationalist party. Nicola Sturgeon says this represents a mandate for another referendum. That view will be dutifully echoed by sections of the media, academia, civil society and even some of Sturgeon’s quasi-opponents in the ranks of ultra-devolutionism. The Scottish establishment looks after its own.

However, the Nationalist narrative will be amplified by swathes of the London print and broadcast media, as well as sundry politicians, activists and intellectuals. They will say much the same as Bradby: that it would be democratically objectionable not to permit another plebiscite. Some will be sincere, though misguided. Others will be the sort who yearn for a Big Bang event to open up new political possibilities in England. Although there are right-wingers who see Scottish secession as a route to a revived sense of Englishness, it will mostly be leftists convinced the break up of the UK would give socialism another shot.

Others still will be the FBPE contingent, still madder than a sack of squirrels about Brexit and the failure of anything to go their way since. Boris won, Dom Cummings has still not been outed as a Kremlin asset, the vaccine rollout was a roaring success — with each fresh humiliation they have grown embittered and more impotently vengeful. They desperately want something to go wrong and independence is particularly attractive given the crossover between Continuity Remain and the sort of metropolitan progressive who longs to be able to vote for Nicola Sturgeon. (They never seem to long for the outcomes she produces for those of us who live in Scotland.)

At risk of spoiling their fun: the SNP did not win a mandate for a second referendum on Thursday. As I have argued before, it is impossible to obtain a mandate for the exercise of reserved powers at an election to a devolved parliament. Sure, both the SNP and Green manifestos promised to pursue another vote. Each also pledged to see the UK’s nuclear submarines removed from Scottish waters. Is Westminster expected to accord this ‘mandate’ the same deference as that on independence? You might say a referendum is different because it specifies a mechanism for determining an outcome rather than expressing a point of principle, but if that is the case then the SNP and Greens need only pledge a referendum on booting Trident out of Faslane in their next manifestos to activate the same principle.

Devolution is not a system of principles but of ever-shifting expediencies that evolve to suit the latest requirements of ever-weaker Union. The devo-ultras rankle at fuddy duddy concepts like Westminster sovereignty while nationalists use Holyrood as a shakedown operation to extort more powers from national government. That secessionists see nothing wrong with this is one thing, but what does it say about devocrats that they seem untroubled by this development? Devolution today is underpinned by the convention that all powers not devolved are reserved until such time as Tom Bradby tweets about them.

The question, then, is what is Boris Johnson going to do about this? If his track record, and that of most of his predecessors, is anything to go by nothing much. Governments Conservative and Labour have shown themselves fantastically indifferent towards Holyrood empire-building. The Scottish Government is openly pursuing a separate foreign policy but Whitehall barely shrugs. In part, this is a function of the centre’s unofficial policy of ‘devolve and forget’; in part, it reflects a government too scared of its own shadow to stand up for something as fundamental as the integrity of the state.

Michael Gove’s love-bombing approach has its merits but so far it has proved to be a toothless tiger. Absent a touch of enforcement, it risks making the UK Government look weak and plaintive, suing for peace even as the drumbeat of war emanating from Bute House grows louder. Give voters a choice between confidence and concession and they will more often than not favour confidence. The separatists are trying to dismantle the United Kingdom and are using a parliament created for devolution to do it. Love-bombing is all well and good, but Downing Street must recognise that the incoming missiles are not filled with flowers and chocolates.

The problem seems to be that the government would rather have this problem go away than have to solve it. Anything to get Scotland back out of the headlines. Whenever Scotland ends up in the headlines, Boris eventually has to go there. I don’t care how the man got the money for his wallpaper — no one deserves that.

Short-termism is the bane of Unionism. When Labour devised devolution, it could not see past its own 40-year dominance to a time, just a decade later, when it would be displaced by the SNP. When the SNP formed minority government in 2007, the Scottish Conservatives jumped at the chance to rack up a few policy achievements in exchange for backing Salmond’s administration in key votes. Salmond got their votes, the credit for their policies and the credibility that came from being able to legislate his government’s agenda. When he parlayed this into a majority in 2011, David Cameron thought he could call Salmond’s bluff and agreed to a referendum. The last decade of constitutional gridlock is the legacy of that decision.

Even now, there are senior ministers and advisers in Whitehall who want Boris Johnson to retread the Cameron path and propose a referendum in the autumn, figuring they can wrongfoot Sturgeon. The polls are precarious right now and the SNP leader could not be guaranteed victory, or so the thinking goes, and this might prompt her to knock back the offer, sparking a fresh civil war within her party.

Again, it sounds clever, but the idea that the woman who just guided a 14-year-old government to a fourth consecutive election victory isn’t canny enough to see that play coming is risible. At best, she would say the Scottish Parliament would decide the timing of a referendum, not a Tory prime minister playing politics during a pandemic that killed 10,000 Scots. That is if she didn’t agree to the autumn, make said political games a central issue of the referendum, and convince enough undecideds for a narrow Yes majority.

The Prime Minister should not fall into any of these traps. He should make clear there is no mandate arising from the Holyrood election because the constitution is a Westminster matter. He should then have a Bill drawn up for a new Act of Union that puts the legal questions beyond doubt. This is necessary for the reasons outlined by James Forsyth in this week’s magazine, though he would not be down with my solution.

The legislation should state unambiguously that sovereignty resides in the Crown-in-Parliament, that the constitution is a reserved matter, and that a devolved legislature may not hold a referendum or any other form of plebiscite, binding or advisory, without a Section 30 order. It should stipulate that Scottish Government civil servants may not be directed to and must not comply with any instruction to prepare, plan or organise an independence referendum prior to a Section 30 order and that public resources may not be expended on the same. I would go further than this — see here, for instance — but that is more than enough to be getting on with for now.

Grasping the thistle will naturally be painful. The massed ranks of the Scottish establishment will line up to howl that Scotland is being oppressed, that Westminster is disregarding democracy, that Number 10 is only driving more Scots to back independence. Among them will be opponents of the SNP who have no particular ardour for the Union but also those who do and sincerely believe the Prime Minister is making a lethal error. There will be protests; there may be civil disobedience. A certain type of Scottish nationalist views the unrest that greeted Catalonia’s unlawful referendum as an exemplar rather than a cautionary tale.

Given the fervour with which separatists would oppose any attempt to legislate, some might wonder whether it is worth attempting it. Better to kick the can down the road for another year or two than go through all that anguish. This sentiment is understandable but it rests on a false choice. If Sturgeon is determined to hold a referendum during this coming parliament, there will be an ugly constitutional clash anyway. The only question is whether you want a clash that is followed by a referendum or one that puts a referendum off the agenda for decades.

The government’s strategy cannot be constructed around the political preferences of the London hackocracy, the airy suppositions of Spads far removed from Scottish politics, or the yearning of the Prime Minister for an easy life. But there has to be a strategy, it must be built to win and those in charge of implementing it must have the backbone to stick with it, whatever comes. There is no magic trick, no tactical ruse, that will short-circuit the SNP’s agenda. They mean to tear our country apart. Stop them, or prepare for defeat.

Written byStephen Daisley

Stephen Daisley is a Spectator regular and a columnist for the Scottish Daily Mail

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