Happy new year.
I wrote in my last blog about the extent that what happened on 12th December has completely changed the political agenda. For the first time since 2005-2010 we have a government with a clear majority and are only now remembering that Government's with clear majorities can do what they like.
Leave the EU? Done. Abolish the Fixed Term Parliaments Act? Done. Change the system of recruitment to the senior Civil Service? Done. Reform the remit of the Courts to intervene in matters of Government? Done.
But Scottish politics hasn't yet appreciated the biggest "Done" for us. Stop there being a second Independence Referendum? Done.
You see the Tory Manifesto was quite explicit on this. And let me remind you that they have just won election to the only Parliament that matters on this issue. Westminster. Because holding a referendum on independence or giving Holyrood the power to hold a referendum is a reserved matter under the 1998 Scotland Act. Simple as that. This is precisely why there was the "Edinburgh Agreement" giving temporary power to hold what turned out to be the September 2014 Referendum by means of a "section 30" order under that 1998 Act. A necessity the SNP conceded at the time
The standing assumption in Scotland is that if the SNP win an absolute majority at the 2021 Holyrood Election (for all sorts of reasons there can't be a referendum this year even if the UK Government was willing) on a clear commitment to holding a second vote then they would be allowed to have one. But I ask a simple question. Why are people making that assumption?
What could the SNP do if they weren't so allowed?
You see the powers of Holyrood are defined by statute and they do not include the unilateral power to hold a binding referendum on whether Scotland should leave the Union. That is the constitutional settlement approved by the 1997 referendum and enshrined, as I say, in the 1998 Act.
So, what happens if, hypothetically returned with 65 or more Holyrood seats in May 2021, whoever leads the SNP by then requests the power to hold another referendum and the British Government, with the support of the British Parliament, simply says no? The answer is nothing. Nothing happens.
For what options would the Scottish Government then have? None.
They could pass legislation to have a vote anyway but it would just be struck down in the Supreme Court. Any possible reading of Miller (No.1) in the Supreme Court tells you that. So it couldn't proceed by a legal route. I don't mean couldn't proceed legally, I mean couldn't proceed. For any attempt to instruct civil servants or local authorities to go ahead anyway would be met with prohibitory court orders which, if breached, would ultimately engage the criminal law and any illegal expenditure involved would leave its instigators open to personal surcharge.
So that's that.
They could try and organise a legal referendum about something short of a unilateral declaration of independence. If you know the history of this in detail, you will recollect that this was something the Nats themselves later conceded had been in their mind during the 2007 Parliament. I have considerable doubt about whether they'd get away with this legally but suppose they did? There has been a legal referendum on a direct proposition in 2014. Just over 2,000, 000 people voted no. Does anybody think more than that would vote yes in this "advisory" vote when the other side didn't engage and the UK Government said in advance they would ignore the outcome? So even suppose that the Nats did this and won 1,500,000- nil, so what?
They could try and organise a referendum without using the formal structures of Holyrood at all, which, as far as I can work out, is the strategy of the marchers, but......I'm falling about laughing now.
They could declare UDI. Only they couldn't for the simple practical reason that, in its immediate aftermath, they would have no practicable way of raising taxes and thus paying (devolved) public sector wages, including their own. They don't have the legal vires to do that but they don't even have the logistical capacity. That's why devolving certain benefits has proved so complex even with willing parties on both sides. And Westminster would be hardly likely to continue to hand over the block grant for that purpose in these circumstances. This would be more likely simply to lead, of necessity, to the suspension of Holyrood and the establishment of direct rule. That, as much as anything else, was why the unilateral declaration in Catalonia was such a farcical episode and had that precise outcome without the Cat Nats being able to do much about it.
They could, as a Party, engage in civil disobedience. Except that in Scotland they would only be inconveniencing themselves while in the rest of the country they would lack the capacity to achieve much. That's why this tactic has also quietly died out in Catalonia.
They could appeal to international public opinion. Good luck with that.
Finally, obviously, they could engage in domestic terrorism elsewhere in the UK but I doubt many even of the most dedicated of nationalists have the stomach for that and one suspects it would be completely counter-productive to their cause in Scotland if they did.
So, you see, there is really no downside to the UK Government saying no. The Tories would be unpopular with a fair bit of Scotland but the Tories are unpopular with a fair bit of Scotland now.
So maybe we should take Boris at his word. There is not going to be a second referendum for (at least) the promised "generation". That was actually decided on 12th December 2019 without anybody really noticing. As, regrettably, it looks like the Tories will now be in power for the best part of that generation. Majorities of 80 seldom fall to a single blow. Maybe, that will allow the current "outrage" of a, I accept a substantial, minority of Scottish public opinion to continue indefinitely. Or maybe, eventually, people will just realise that it is time to move on.
