Who ended the week with the upper hand in the constitutional battle between the UK and Scottish governments? It started with Nicola Sturgeon, the Scottish first minister, wrong footing London with her plan for a second independence referendum in either late 2018 or early 2019. As a result, Theresa May appeared to delay triggering the Brexit clause, Article 50 of the Treaty on European Union, until the end of March.
But on the eve of the SNP spring conference in Aberdeen, the prime minister sought to seize back the initiative: with the repeated message of “now is not the time”, she signalled she wouldn’t discuss a potential referendum before the Brexit negotiations are complete. Sturgeon’s team responded by insisting that the vote would happen on her timetable, while the first minister hinted at “other options” if she is formally turned down by the UK government.
May looks to be in the stronger position. The Conservative government can in theory prevent a referendum by withholding permission, while opinion polls tend to indicate that a majority of Scottish voters do not want a referendum without knowing the results of the Brexit negotiations first. In appealing over the heads of the Scottish government, May’s position will play well both with voters most committed to Brexit and those fearful of greater uncertainty.
Risk and reward
Nevertheless the approach carries risks. After the Scottish parliament votes in favour of Sturgeon’s proposal on Wednesday March 22 – all but inevitable because of the pro-independence majority between the SNP and Scottish Greens – Sturgeon will claim to have a democratic mandate. This will rally supporters and create a Scotland versus Westminster fight. The debate will shift from the pros and cons of independence to who has the right to decide on the vote.
The pro-independence side is guaranteed to exploit the Conservative democratic deficit to the hilt throughout. And May has the further weakness that she has no personal mandate at UK level either, relying instead on David Cameron’s victory in 2015. If she were to decide for other reasons to address this by calling an early election, it could provide Sturgeon with a fresh Westminster mandate for a referendum if the Scottish nationalists were to repeat their near clean sweep of 2015.
In the short term, this polarisation between Sturgeon standing up for Scotland and May refusing to alter her course from hard Brexit might suit both their parties at the upcoming council elections in May. These are likely to be viewed as a test for both leaders – as a barometer of May’s early premiership and an opportunity for the SNP to take the last big prize in Scottish politics, Glasgow City Council. In this kind of nationalist/unionist battle, Labour and the Liberal Democrats are both likely to struggle.
The question though is how long the UK government can delay even discussing a potential referendum. To do so for the two years of Brexit negotiations will be difficult. This will depend on avoiding a sustained Yes lead in opinion polls and is unlikely to succeed without a concerted and risky campaign warning about the dangers of independence to the Scottish economy, currency and borders. Sturgeon’s latest hints about “other options” might mean there would be petitions and protests to contend with along the way.
Sturgeon no doubt expected the response that has come from Westminster. With May unwilling to agree to amendments over the Brexit bill from the House of Lords and fighting High Court battles over the process, she was hardly likely to discuss a referendum for Scotland until after Brexit negotiations were completed.
This being the case, might she be thinking about holding a referendum without Westminster’s permission? Such an option is highly risky and the issues of legality would be paramount. Certainly the SNP government would want to avoid a situation where the process was blocked in the courts. As Catalonia demonstrated in 2014, holding such a referendum without permission can result in No voters boycotting it and rendering the result meaningless. The early indications from the nationalists are that they are not heading in this direction.
For May, fighting on two fronts is never advisable. And when she does finally agree to a referendum it will be treated by the SNP as a victory over Westminster. May’s recent response makes that seem inevitable sooner or later, while Sturgeon has indicated she is willing to negotiate on timing. One big question both sides will be asking themselves is who benefits more from holding the referendum after Brexit. Until more is known about the terms of the final Brexit deal, this is almost impossible to answer.
In the meantime, the SNP’s focus will be working out a strategy of how to win a referendum while maintaining and increasing support in the polls for independence. Crucially it has still to formulate arguments on the currency and economy, both of which were key weaknesses in 2014; and also how to deal with the important minority of potential Yes voters who don’t want EU membership.
Indeed, if May had wanted to wrong foot the SNP she could have offered an earlier referendum. The UK government’s obsession with avoiding anything that makes it look weak to EU negotiators has limited its options, however.
Instead over the next few months the nationalists will have to work on the substance of their independence proposals. Sturgeon may score numerous political points over this second referendum, but lose sight of the underlying case and it will not matter much when it comes to the crunch.