Boris Johnson’s refusal of Scottish First Minister Nicola Sturgeon’s request for permission to hold a second independence referendum this year comes as no surprise.
The Conservatives are buoyed by their election victory in England and Wales, and are focused on Brexit. It would, in any case, have been logistically impossible to complete a referendum vote before the end of 2020.
The argument should, rather, be seen as part of the manoeuvring leading up to the Scottish parliamentary elections of May 2021.
It also serves to manage the division within the party between the more prudent elements in the SNP, who would like to wait until a clear majority for independence has been established, and those who want to press the pace now.
One feature of the Scottish independence debate, in contrast to almost all other similar cases (such Catalonia, for example), is that the UK government does not deny that the Scots have a right to self-determination.
Margaret Thatcher and John Major both made that explicit, while the Labour Party signed up the Claim of Right which stated the principle in the 1980s. Instead the unionist parties have always argued (with the exception of the Edinburgh Agreement of 2012) that “now is not the time”.
Following the referendum of 2014, unionism had an additional argument, namely that Scotland had already exercised the right, and the vote had been in favour of preserving the union.
Some unionist politicians have squared their support for the Claim of Right with opposition to an independence referendum by saying that the devolution referendum of 1997 met the test.
Yet the Scotland Act of 1999 – which followed the referendum result and created Scotland’s devolved government – made clear that Westminster remained sovereign.
This raises the question of what ‘the right time’ is, and under what circumstances Scotland can exercise its self-determination rights.
On the nationalist side there are two arguments.
The first is that it is up to Scotland, via its parliament, to decide when to exercise its right. The second is that, since the referendum of 2014 there has been a material change of circumstances, in that Scotland is being taken out of the EU against its majority Remain vote. In the last Scottish elections, the SNP had reserved the right to demand another referendum if that happened.
There is no law or constitutional provision governing these matters. One might argue that, following the precedent of the two EU referendums and the Scottish independence referendum, a government gaining a parliamentary majority has the right to put such questions to the people.
The electors can always vote ‘No’, or not re-elect governments that give them unwanted referendums. This has not yet, however, attained even the status of a constitutional convention.
There has been speculation that, deprived of a legal and agreed referendum, the Scottish government could stage one unilaterally.
While the constitution and the union are clearly beyond the competence of the Scottish parliament, it might be that a strictly advisory referendum could be legal. Even if that survived court challenges, however, it could be a meaningless exercise as the unionist parties could simply boycott the vote.
This is what happened in Catalonia, where more than 90% of those who voted supported independence, but turnout was less than half the electorate.
It is highly unlikely that the UK government, or indeed the police, would try physically to stop people voting, as the Spanish authorities did, but ignoring the event would actually be more effective.
As usually happens in UK constitutional arguments, this issue will be decided politically.
One political arena is in Scotland, where the Conservatives will campaign, as they have since 2014, on refusing a second independence referendum, while the SNP will seek a mandate in favour. Labour is at present divided on the issue and seeking to revive ‘third way’ ideas about federalism or devolution-max.
The other political arena is in England. The UK differs from Spain and other such plurinational states in that the majority nation is not particularly hostile to the self-governing aspirations of the smaller ones.
Lord Ashcroft’s 2019 survey shows that two fifths English voters think that it is up to the Scots whether they want to become independent. The British Social Attitudes survey has regularly shown that a fifth of them actually want Scotland to be independent.
In a future argument, English Remain voters might sympathise with Scottish independence aspirations, while Leavers could resent extra attention and money going north.
No politician wants to be wants to be the last prime minister of the United Kingdom, and there will be strong resistance to another referendum. Support for independence in Scotland has been running a little below 50%, well under the level that would constitute an overwhelming demand.
If the SNP can shift the argument away from independence to the ‘right to decide’, as happened in the Basque Country and Catalonia, its drive for a referendum might gain more support.
History shows that, when Scotland is governed for a long time by a UK party for which it did not vote, support for self-government increases. This is an issue that will not go away but none of the parties can be sure that their current strategies will work.