Scottish independence: Why a 'de-facto' referendum could see the SNP fail to achieve indyref2, even if they win

The problem with losing control of the path towards your political goal is that you can end up down a different, less desirable route with no way of turning around.

With her move towards a ‘de-facto’ referendum, essentially choosing to fight the next “national” election on the single issue of independence, Nicola Sturgeon has embraced a degree of political jeopardy that is as risky as it is out of character.

Defeat would likely lead to her resignation. It could kill independence stone dead if, as touted, the election is considered to be a genuine expression of Scotland’s wishes in relation to its constitutional future. Having it both ways and claiming defeat did not really mean Scotland wants to remain in the union would be seemingly untenable.

The preferred route for the First Minister is a Section 30 enabled repeat of 2014. It would be legal, sound and democratic, but the bosses of Scotland’s ability to vote on such a question are refusing to play ball. Under pressure, this ‘de-facto’ route is now Plan B, though questions remain as to its efficacy.

SNP leader and First Minister of Scotland Nicola Sturgeon issues a statement at the Apex Grassmarket Hotel in Edinburgh following the decision by judges at the UK Supreme Court in London that the Scottish Parliament does not have the power to hold a second referendum on independence.

How would a win at a de-facto referendum move the SNP forward?

This is a question that appears to have been missed by much of the discussion around the SNP’s new approach to gaining independence for Scotland. If we set aside the mountain that is reaching 50 per cent plus one of the vote in a general election and assume the SNP (and friends) hit that target, would that actually change anything?

At the post-First Minister’s Questions briefing with journalists, the First Minister’s official spokesperson was asked by this newspaper why the Scottish Government had not simply begun negotiations with the UK Government on independence based on the mandate that exists within Holyrood. That mandate being a pro-independence majority and government of two parties.

The answer, correctly, is that Nicola Sturgeon and the SNP have a “mandate for a referendum”, not independence itself. The spokesperson added: “I think in fairness, if we started talking about opening negotiations with anyone on independence, people with a bit more legitimacy, shall we say, than some of the pushback we get on other aspects of the election result, they would say ‘wait a minute – negotiations, what are you talking about, you never talked about that’.”

That mandate for a referendum, won at the 2021 Holyrood election, is being “blocked” by pro-union politicians and the UK Government.

How, then, does a general election, an election for the Westminster Parliament, change that fact or that mandate? How does the First Minister move from calling for a referendum to negotiating independence without the UK Government simply throwing up further roadblocks.

Modern, devolved Scottish politics operates on the fact the First Minister derives her mandate and her position from the balance of power within the Holyrood chamber. The SNP may well stand in Westminster elections, but there is no change to the mandate MSPs receive following a Holyrood election after a Westminster vote mid-term.

While the context within which Holyrood operates changes – reflected in alternating positions held by Scottish Tories leader Douglas Ross with different prime ministers in post – the mandates of those sitting in its chamber seats does not.

The reason a Westminster election is preferable for a de-facto referendum is not just because it is likely to be sooner, but because the maths is cleaner. A Holyrood election would see votes cast proportionately as well as under first past the post. Do you count one or both? What about counting second or third preferences? It is a messy scenario.

Following a victory in a de-facto referendum at a Westminster election, the First Minister would have an extremely powerful political weapon, but it would not be a mandate she herself stood on. It would not be Nicola Sturgeon’s mandate, but the SNP’s in Westminster. It is one to which the UK Government could continue saying no.

Stewart McDonald, the SNP MP, said any decision by the party to move towards a de-facto referendum must “do what it says on the tin – it must be able to lead to independence”. The current proposition does no such thing. Suggesting it could be used to secure a 2014 re-run, as put forward by SNP policy chief Toni Giugliano, would also fail that critical test.

The Alba problem

It is taken as read that votes for the Scottish Greens would count towards the final pro-independence total in such a vote, but what about less mainstream parties such as Alba?

Would Nicola Sturgeon seriously countenance accepting Alex Salmond back into the mainstream bubble of Scottish nationalism? The former first minister is the least popular politician in Scotland and disliked by most Yes voters.

A decision to say yes to a plea for a cross-party alliance, of potentially standing a single candidate from one of the pro-independence parties in each constituency, would force Ms Sturgeon to share a platform with Mr Salmond. It would not happen.

A tertiary problem to accepting other party votes is if, as expected, the Scottish Greens stand in every constituency, Labour will likely win more seats than they would otherwise in what could weaken any post-election argument for negotiations to begin.

How could unionists respond?

Nicola Sturgeon has repeatedly warned unionist politicians of not being triumphalist following the Supreme Court decision due to the implications it has on the nature of the union and the devolution settlement. Unionists would be wise to listen.

Complacency on this issue is the one thing that mainstream unionists must avoid at all costs. Believing the roadblock in front of the SNP means the end of them as an imminent risk to the union is wishful thinking, particularly as more populist, emotive language and rhetoric becomes the norm.

There will be cries of the SNP creating division, but Scotland is already divided and many politicians do not think there will be a solution until there is another referendum. Sitting back and hoping the SNP’s poor domestic record or their internal psycho-drama will see them self-combust is a folly.

It is easier for the Conservatives to simply say no and not countenance any move towards a referendum given they will likely not be in power after the next election and cannot lose touch with their core vote of ardent No voters.

For Labour, however, failing to offer an option that goes beyond the usual mood music of more localism would mean ever more furious Scottish nationalism knocking at their door.

Northern Ireland may offer a solution as the only part of the union with an explicit route out. The Good Friday Agreement states a border poll leading to a united Ireland can take place “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 United Kingdom and form part of a united Ireland”, at the discretion of the Northern Ireland secretary.

Sir Keir Starmer providing a similar route, as vague and discretionary, could nullify the accusations of democracy denial and weaken the power of the rhetoric for the SNP. Otherwise he will be dogged, as he already is in Scotland, of claiming to be a democrat, but refusing to set out a democratic route to independence.

Labour consistently says it is for the SNP to set out the route to independence. The SNP did and it was ruled unlawful and are now left without a democratic route that does not engage the UK Government. It is time for Labour and unionism more widely to respond substantively to that question.

Escaping this constitutional stalemate is a solution only politicians can provide.

Want to hear more from The Scotsman's politics team? Check out the latest episode of our political podcast, The Steamie.

It's available wherever you get your podcasts, including Apple Podcasts and Spotify.