- A second Scottish independence referendum is not the base case after the 6 May regional elections.
- PM Boris Johnson is likely to strike down respective demands by referring to the pandemic, trying to win time until after the next UK general election.
- A conversation about constitutional reform could be a way forward, but transforming the House of Lords has posed a formidable challenge to previous PMs.
For the last six months, opinion polls have consistently shown a lead for the pro-independence side for the first time in history. In the last month, the polls are back at about 50/50. Meanwhile, the row around harassment allegations against First Minister Nicola Sturgeon’s predecessor Alex Salmond do not appear to have made a huge difference to election polling. The Scottish Nationalists (SNP) remain on course to obtain a convincing victory. Even if they fall short of an overall majority, there will be broad support for a second independence referendum jointly with the Greens.
Salmond has launched the new pro-independence Alba Party but is predicted to win less than the 6% he needs to win several regional list seats under the mixed electoral system; he may only win one or two. It is, therefore, possible that the Alba Party does not increase the number of seats won by pro-independence parties. At the same time, the Conservatives and Labour – both with relatively new leaders – are failing to make a breakthrough, although it is still possible for the polls to narrow during the course of the campaign. The Conservatives are in second place and Labour in third with around 18-22%.
Almost certainly, the power to hold a legal referendum on Scottish independence resides in Westminster, although the UK Supreme Court has not yet been asked to give an opinion. In 2014, the SNP and the UK Conservatives agreed that for a referendum to be legally sound, Westminster needed to pass a section 30 order under the Scotland act 1998 and grant the Scottish government the right to hold a referendum.
On this basis, Johnson will likely say “not now” if Sturgeon calls for a referendum after 6 May. The PM will remind Scots of the union’s economic support to help pay for Covid and the vaccine procured by the UK government for the Scottish authorities to roll out. Johnson might be reassured by opinion polls showing that most Scots do not want a referendum while the pandemic is still raging. But by the time the UK’s recovery might be fully under way, it will likely be time for another UK general election. This would give the PM a further excuse for delaying a vote. In the meantime, he will hope that the pendulum will swing against the SNP, as the party has been in government in Scotland for 14 years, with a mixed record on education and the NHS.
While most legal experts are clear that referendum powers reside squarely with the UK government, Johnson might still not want to take the very small risk of losing in the courts. More likely is that he would simply assert that it is clear that the power resides at Westminster, reminding the SNP that it agreed in 2014. Johnson would then wait for Sturgeon to be pressed by radical SNP supporters and the Alba Party to hold an unofficial referendum or declare independence unilaterally. But Sturgeon is unlikely to have changed her mind since 2016/2017 when she refused to embark on this trajectory, although the 2016 Scottish elections had produced an SNP/Green majority for independence.
The pressure will likely be more intense on Sturgeon this time because of the emergence of the Alba Party, Brexit and its economic consequences, Johnson’s extreme unpopularity in Scotland, and a consistent polling trend suggesting that an independence referendum might be winnable by the Yes side. Even some Conservatives believe that if Sturgeon has a clear majority for an independence referendum, it would be politically impossible to resist it forever as to do so would go against the democratic will of the Scottish people. But the PM remains unlikely to listen to these voices.
Johnson’s third way?
In short, neither side can afford to lose a potential referendum. The UK government cannot risk any gambles when it comes to the union, and the SNP cannot afford to lose the unfulfilled desire for independence as a tool for mobilizing voters. This situation makes it doubtful that either side would commit to holding a vote any time soon.
Instead, Johnson may consider some sort of third way reform by setting up a royal commission on the nations and regions of the UK, looking at the balance of powers across Scotland, Wales, Northern Ireland, England, and across the local authorities and regions of England. The obvious route to make the UK more federal in a way that might appease Scottish nationalists would be to reform the House of Lords to turn it into an elected body representing the nations of the UK and England’s regions.
Such a project would, however, have far-reaching consequences for the UK’s constitutional order and system of government. Moreover, not even master campaigner and chief disruptor Tony Blair achieved Lords reform with his substantial majorities. Therefore, the idea is not currently favored in the Conservative Party and remains unlikely to materialize, at least in the short term.