Scottish independence: Ambiguity around basis for second Indyref is an absurdity – Martyn McLaughlin

Thresholds are dangerous places, neither here nor there, and those who give up safe footing to venture towards them do so at their peril. In the case of Alister Jack, time will tell if his confidence is misplaced.

The Scottish Secretary’s recent clarification on the basis for a second independence referendum is not without ambiguity. There would, he said, need to be consistent polls showing 60 per cent of Scots are in favour of a vote. But what struck me as significant about his contribution was the manner in which he chose to announce it.

The details emerged following an interview he gave to Politico – a widely respected political news site, though perhaps not the most appropriate forum in which to blithely announce the terms under which Scotland’s future will be decided.

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It would be too kind to the Secretary of State and his Cabinet colleagues to chalk up such carelessness as accidental. Throughout the pandemic, Boris Johnson and his ministers have made a habit of briefing significant announcements to sympathetic contacts in the press. The contempt for parliament has been a strategic choice.

The same is true of their approach to Scotland. Only last month, Michael Gove set out his view that if there is “clearly a settled will in favour of a referendum, then one will occur”. He did so in the pages of a Sunday newspaper.

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Alister Jack says Scottish independence referendum could happen if polling shows...

Both demonstrated contempt for their fellow MPs, and gave the not unreasonable impression that, when it comes to the issue of a second referendum, Whitehall is still doing things on the hoof.

If that seems uncharitable, it is worth revisiting recent history to see how Mr Jack has flip-flopped on the circumstances and timing of a second vote. As recently as November, he said the answer should be “no” because a “generation hasn’t passed”, telling the BBC: “It’s no for a generation? Is it 25 years or is it 40 years? You tell me, but it’s certainly not six years, nor ten.”

Alister Jack's position on the basis for a second independence referendum has shifted in the past 10 months (Picture: Hollie Adams/Getty Images)

Ciaran Martin, a former constitution director at the Cabinet Office who was directly involved in the creation of the Edinburgh Agreement back in 2012, ventured that Mr Jack’s statement was “ad hocery in an interview” and “not a real policy”.

It may be flam. If it is, Mr Jack should show his office the courtesy of clarifying his comments. Otherwise, leaving the issue hanging traps all the main actors in the same old circular debate around the legitimacy of mandates, legislative competence, and the legal basis for any future referendum.

The timing of Mr Jack’s remarks is telling, given they came on the day that members of the Scottish Greens voted to ratify the party’s power-sharing agreement with the SNP. Given both defined a pro-independence majority at Holyrood as a trigger for a second referendum, they are well placed to argue that any attempts to block a vote would be a denial of a basic democratic principle.

By focusing instead on opinion polls, Mr Jack is shifting the goalposts. When you consider that only eight months have passed since support for independence reached a record high of 58 per cent, it is a dangerous tactic, and one which actually lowers the bar relative to what senior SNP figures were proposing as recently as 2015. Back then, party sources suggested a trigger point would be a consistent showing of 60 per cent support in the polls for independence.

Granted, the pro-independence surge has ebbed since December’s high water mark, and a poll last month found that only 40 per cent of Scots wanted a referendum in the next year. But in Scottish politics, the winds of change can pick up a fair gust.

Either way, it seems First Minister Nicola Sturgeon is not inclined to engage with Mr Jack on the whats, hows, and whys, preferring to assert Holyrood’s independence majority as the only meaningful reflection of the nation’s will.

Some seven years after Scotland went to the polls to answer the question of whether it should become independent, it is absurd that there has been no amendment to the Scotland Act to set out an explicit legal provision for holding a second referendum. This is especially true when you consider how the issue is less muddled in other parts of the UK.

Amid the debate over Holyrood’s powers to hold a referendum, the relevance of the Northern Ireland Act 1998 to Scotland’s constitutional question is sometimes forgotten.

It states that “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the UK and form part of a united Ireland”, then the Secretary of State should enable a border poll to take place.

This wording is hardly precise, evidenced by debate over how to determine the existence of a majority. That said, the most obvious and widely accepted indicator is a clear demand for reunification in a succession of polls, and significantly, it is a matter of law which can be challenged in the courts.

It may be that by speaking to Politico, Mr Jack was hinting that the same rationale should apply in Scotland. Maybe that is a step too far – for now. But hints and winks are insufficient.

As the Secretary of State, he may not be inclined to devolve the power to hold a referendum to Holyrood, but he has an obligation to start bringing about legislative parity at Westminster, and ensure that the preconditions for any future referendum are clear.

At the very least, he could facilitate a collaborative process to begin answering these questions. In this respect, the Smith Commission was an opportunity missed. The continued squabbling over how a second referendum can take place may be convenient to some, but in the long run, Scotland is poorly served by it.

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