“There is always a choice…Or, perhaps, an alternative. You see, I believe in freedom, Mr Lipwig. Not many people do, although they will of course protest otherwise. And no practical definition of freedom would be complete without the freedom to take the consequences. Indeed, it is the freedom upon which all others are based.” – Havelock Vetinari, Going Postal.

You would have thought that Lockdown would have opened up more time for me to look after my blog but instead Common Weal dove headlong into its busiest session of policy-making we’ve ever seen. Between pushing for more effective Covid strategy, analysing the impact of the pandemic on the Scottish economy and launching our post-Covid reconstruction plan I’ve been writing everywhere BUT here.

But most of that has now been completed and I’m currently on holiday which means that instead of writing about politics for work I now get a little time to write about politics for FUN!

Over the next few blog posts I intend to lay out what I see as the main strategic block on the development of the Scottish Independence campaign. Namely, a focus on developing “mandates” for another Scottish independence referendum rather than working out how to actually get one, where to go if one doesn’t happen and what to do after one happens.

This kind of thinking is long overdue but in the absence of it coming from the Scottish Government I’d like to offer my own thoughts and analysis to and for the sake of the independence movement.

Substantial parts of this series will be drawn from Common Weal’s strategy for gaining independence Within Our Grasp which you can read here.

This series was precipitated by a recent tweet by Pete Wishart who was trying to suppress discussion amongst his colleagues about looking at a potential “Plan B” for independence given that Boris Johnson continues to show no sign of any interest in granting a Section 30 order to allow “Plan A”, a referendum organised on lines similar to 2014, to proceed.

I don’t actually disagree with Wishart on his explicit point here and any “Plan”, including any alternatives to “Plan A” must tackle with this problem. However, I do disagree with his implicit point that therefore we shouldn’t really bother talking about the broader pros and cons of all of the strategies capable of achieving Scottish independence. This is what I’ll explore in Part Two of this series but here in Part One, I’ll illustrate of the reasonable options for making Scotland’s views clear.

A Democratic Event

The language in Within Our Grasp was quite specific. Without a doubt the only fair way that Scotland can become independent is via a Democratic Event – an expression of the democratic will of the people of Scotland that can be recognised internationally as such. While this may be a dedicated referendum it doesn’t have to be – countries have become independent in various ways and not all of them required a referendum (indeed, some that used a referendum could hardly have been said to have employed expressions of free democracy even if the purpose of the referendum was to try to give the appearance of one). Whichever route Scotland chooses we must be mindful of the UK constitution and both the national and global political context. Though we may not want to start from here, it is where we currently stand. The following list includes my thoughts on some of reasonable options open to Scotland though the fact that I’ve labeled them “Plan A”, “Plan B” etc shouldn’t necessarily be taken as an indication of order of preference.

“Plan A” – A Sanctioned Referendum

This is the plan that is currently the Scottish Government’s preferred Plan (to the point of it being their only one).

Essentially, this is the route taken for the 2014 referendum where the lack of clarity in the UK constitution was sidestepped by the Edinburgh Agreement which saw the UK Government sanction a referendum and both the UK and Scottish Governments promising to abide by the results.

This agreement came about in no small part due to the then low support for independence. No-one, not even the SNP, expected the 2011 Scottish election to result in an SNP majority and with the Greens then neutral to skeptical on the prospect of independence a pro-independence majority in the Scottish Parliament was an unlikely outcome. The shock majority victory saw the SNP compelled to deliver their manifesto promise for a referendum and David Cameron decided that the best defence was attack – to force the Scottish Government to step up, crush them in the campaign and put the question to bed forever.

We all know what happened next. While Scotland did vote No the margin was far, far narrower than was comfortable for proponents of the Union and the political shifts in the aftermath has shown that another pro-independence majority, or even an outright SNP majority, in Holyrood is no longer a near-impossibility but now more likely than not. No pro-Union campaign will look at another referendum with the assumption that their victory will be easy, total and inevitable.

No pro-Union Government will have any intention of sanctioning another referendum unless they really have no choice to do otherwise. While it costs them less to say “No” than to say “Yes”, a sanctioned referendum will not happen. This will especially be the case when “talking tough to the Scots” actually doesn’t cost them at all but on the contrary wins them pro-Union votes across the UK. A new study by UK Labour into their recent electoral performance made that clear when it found that its stance on the constitution has cost them many of its older voters in Scotland to the Tories.

So why does the Scottish Government pursue what seems to be a doomed strategy?

Well, precedent is always important. While other approaches have been successfully used by countries leaving UK control and other strategies have been discussed specifically within the Scottish context this “Plan A ” has not only been used in a way that was internationally recognised, it has recently been used IN Scotland. Any other strategy has to be able to justify itself before it can be used and, as we shall see in Part Two, Scotland would need to persuade the UK Government and pro-Unionist groups to accept the actuality of the campaign around the democratic event (i.e. to campaign and lend legitimacy to the process, not boycott the event and not try to frustrate it from happening at all). This would be in addition to persuading the UK Government to accept the results of the event and come to the table to negotiate Scotland’s independence.

I can see the appeal of trying everything to make sure that a second independence referendum comes about via “Plan A” – it is my preferred option too – but, unfortunately, what I do not see is the Scottish Government showing any signs of trying everything to make sure that it comes about before breaching their own red lines (such as those drawn around Brexit). Standing by meekly and hoping that Johnson changes his mind on a Section 30 order while offering platitudes and unfulfilled promises appears to provide more of an excuse to inaction than a sign of principled reason.

“Plan B” – An Advisory Referendum

The last few years has seen this plan disparaged with pejorative language such as calling it an “unofficial” or “illegal” referendum. In reality, this plan refers to an independence refrendum that comes about solely via an act of the Scottish Parliament voting by majority to hold one without the sanction of the UK Government, a formal Section 30 order or an equivalent of the Edinburgh Agreement.

The UK’s lack of a codified, written constitution is an advantage to those who want to make major constitutional changes based on political whim but also can also mean that important aspects of the structure of the state can be vaguely defined.

Schedule 5 of the Scotland Act clearly marks matters of the union as a reserved power but while that same act lays down the principles and regulations surrounding elections in Scotland it had little to say about referendums – especially “advisory” referendums with the purpose of guiding future policy of the Scottish and UK Parliaments. The result of such a referendum would not be “binding” in the sense that there would be legal consequences if either Government did not abide by the result but the process would be very much akin to the 2016 Brexit referendum in that failure to recognise the results may have significant POLITICAL consequences both at home and internationally for any Government that is seen to ignore a clear democratic event.

The Scottish Parliament’s powers to legislate in reserved matters are clear. The Presiding Officer has the role of determining if any matter lies outwith the scope of the Parliament and attempts to legislate on these matters can be challenged in the courts with legislation found to be outwith rendered null and void. It is also generally recognised that the Scottish Parliament can hold a Scotland-wide advisory referendum on any topic within the scope of its powers but what is not clear is whether or not it is possible for the Scottish Parliament to hold an advisory referendum specifically on a reserved matter that it, itself, could not legislate on.

There has been discussion of a court case to clarify the constitution with regard to the reserved issues question but, strangely, without support from the Scottish Government. A group of ordinary citizens are involved in such a case and, as with cases challenging aspects of Brexit, it may well yield important results but if it DOES result in the courts ruling that the UK Constitution allows for an advisory independence referendum then it will raise serious questions about why the Scottish Government didn’t bring this case itself. I personally would want to know if the constitutional ambiguity was being used as a shield against having to mount an indyref campaign as much as a barrier to contesting one.

There is a fear that attempting to hold such an advisory referendum would be open to interference from majority pro-Union councils (Scottish Local Authorities have the role of running ballots) which may refuse to facilitiate the referendum meaning that in some areas it could be difficult to cast a vote. This fear has been largely mitigated by the 2019 Referendums Bill which gives a legal framework for such a referendum to take place subject to a bill to hold that referendum passing through the Scottish Parliament.

Of course, the court case could go the other way such that an advisory referendum on a reserved matter is not possible. This would be a mortal blow to this “Plan B” but while it could be that the current ambiguity suits both the Scottish and UK Governments having this option firmly removed from the table stills gives greater clarity and allows us to move the discussion constructively in another direction.

“Plan C” – An MP Plebiscite

In this scenario a UK General Election would be fought by the SNP (and/or other pro-indy parties either independently or as part of a coalition) specifically on the matter of independence and with the express aim of using the result of a majority of seats won in Scotland as a mandate to proceed directly to negotiations for independence.

There has been talk about this situation applying to Scotland throughout the years and as recently as 1997 this was the SNP’s stated manifesto promise. In that election they went on to increase their seats from 3 to 6 out of 72. This does seem a bit like a promise from another age the post-devolution era where both the number and the importance of the Scottish contingent of MPs has reduced significantly. It also is a plan with major downsides compared to a referendum.

The first should be obvious. The First Past the Post voting system used in UK elections is grossly disproportional given that it is possible to win a seat with less than 25% of the vote in that constituency and it is possible to win not just a majority of seats in Scotland but almost all of them based on less than 50% of the vote as the SNP did in 2015.

A second disadvantage comes from the present political circumstances. In 1997 it was possible for even pro-Union politicians to accept the SNP’s promise sure in the knowledge that it would never be fulfilled. Since 2015 we have seen a majority of SNP MPs returned in three elections in a row without, and this is crucial, any demand from them to come to the independence negotiating table. As stated previously, precedent is important and may have to be overcome.

A third disadvantage is one of franchise. Scotland has the second most liberal electoral franchise in the UK after Wales (which offers broader voting rights to prisoners than Scotland does) and can be expected to offer a vote in a future independence referendum to all people aged 16+ with permanaent legal residency in Scotland. The UK electoral franchise, however, is a lot more restrictive being limited to people aged 18+ and with much stricter terms regarding citizenship. To give just one example, EU citizens who voted in the 2014 independence referendum would not be able to vote in a UK General Election being used as an independence plebiscite.

A final, but not unimportant, disadvantage of this Plan is that we may have to wait up to five years for another general election (although given that we’ve had four UK general elections in a little over that time…who knows how Strong and Stable the UK will be over the next five years). Given looming challenges such as the climate emergency, Scotland has precious little time left to wait around for independence to present itself.

One circumvention to this problem could be for the current group of 48 SNP MPs to simultaneously resign their seats and force 48 by-elections. If a sufficient number of those MPs are re-elected, then this could be used as a plebiscite. Such an event would result in the largest number of simultaneous by-elections in UK history, surpassing the 1986 by-elections forced by the Ulster Unionist Party’s protest against the Anglo-Irish Agreement.

There could be one of two responses to the SNP initiating this strategy. The first could be to simply ignore the by-elections and leave the SNP to be re-elected without contest – doing so would effectively nullify any claim that the results represented a pro-independence endorsement. Or they could contest hard (especially in key areas) to claim marginal seats or knock out keystone MPs like the party leader, senior office holders or effective opponents in certain portfolio areas. This strategy could backfire if it resulted in many (indeed, any) SNP MPs losing their seats and as non-SNP MPs would not be likely to resign themselves it would not be possible for the SNP to increase their seat number as they could in a full UK election. The politics of the display of the MPs walking out of Parliament cannot be underestimated however. The temporary walkout of the SNP in 2018 made national headlines and led to a surge in membership of party. Timing an independence walkout to co-incide with, say, PMQs would mean it happens on live broadcast TV and would surely bring immediate international attention.

However, there is also the issue that with only 48 out of 59 seats availible for this strategy, even if every SNP MP retained their seat, there would still be doubts over the validity of the plan as a true expression of democratic will given that a substantial chunk of the Scottish electorate (both pro- and anti- independence) would be effectively locked out of the discussion.

“Plan D” – A Holyrood Plebiscite

In this plan the Holyrood elections are used as a plebiscite on independence. As with “Plan C”, the SNP and other pro-independence parties could independently or as part of a coalition declare in their manifesto that if a majority of seats are won by pro-independence MSPs then they would take this as a mandate to begin negotiations on independence.

In at least two ways, this Plan is stronger than using a UK General election. First, there is a Scottish election scheduled for 2021 so, barring another catastrophic collapse of UK governance, it will happen sooner than the next General Election. Although with so little time left to wait this may also be a curse unless the SNP are already planning this – which if they are, they are keeping those plans so secret and so low key that their current movements are completely indistinguishable from inaction.

The second advantage is that the Scottish parliamentary elections are much more proportional than First Past the Post so if a majority is gained then it is much easier to claim it as a genuine democratic mandate (Though note that the Scottish system is not completely proportional and still favours larger parties and discriminates against smallers ones to some degree). Unlike the UK General Election, the Scottish Parliamentary election would also have a broader electoral franchise and would include all permanent residents aged 16+.

Of course, making it harder to win a majority means that, things being equal, it may be harder for a single party to cross that threshold. It may also be difficult for the SNP to claim votes for the Greens or other pro-indy parties as part of their mandate without an agreed coalition to use the election as an independence plebiscite – especially if those other parties don’t necessarily agree with the SNP’s post-independence proposals (or vice versa) or if they feel they may be locked out of the independence negotiations.

One complication in the process will be the twin track system of voting used in the Scottish elections. There will inevitably be discussion about co-ordinating the campaign to try to “game” the voting system by voting for the SNP on the constituency vote and for another pro-independence party (new or extant) in the Regional vote.

I may tackle this thorny problem in detail in a later blog post but one thing to consider is that gaming the number of seats up while not increasing the actual overall percentage of pro-independence voters may not be as persuasive to Westminster and the international community as some might hope.

If a majority of seats is gained based on a minority of overall votes cast, there would certainly be a case for Westminster to try to dismiss the results and refuse to come to the negotiating table.

If the timetable dictates that the 2021 election is not suitable for a plebiscite then it may be possible for the pro-indpendence parties to collapse the Scottish Parliament and call an extraordinary election ahead of the next scheduled one. A motion of no-confidence in the Government can be called by any MSP so long as they can gather 25 signatures. If the motion is passed by two-thirds super-majority, the Government would resign and an election would be called. This would only be a likely scenario if the members of the Scottish Goverment were either very confident that they’d be re-elected or if they valued their commitment to independence over their political careers.

The final option within this Plan would be to again follow the example of Plan C and for the individual MSPs to resign en masse and call by-elections. This is much less of a runner of a plan than it would be in Westminster again due to complications thrown up by the dual track voting system.

For constituency MSPs, the matter is simple enough and directly comparable to Wesminster as in the constituencies, voters technically vote for people rather for than parties and those people can resign and call a by-election.

But on the Regional vote, we vote for parties, not people. If a Regional MSP resigns then the next person on that party’s list of MSPs for that region takes the seat. You might think that that person could simply resign as well but the seat would simply move down the list again. Once the list is exhausted, still no by-election is called – the seat simply remains vacant until the next full Scottish Election.

On the other hand, in 2016 the SNP won 59 of the 73 constituency seats which in percentage terms is comparable to the number of MPs at Westminster so pulling this trick may have a similar impact in terms of a show of strength (though it would also have a comparable impact in terms of disenfranchisement of voters whose MSP did not resign). It should also be said that the SNP would have to balance the strength gained by the First Minster putting her career on the line for independence with the comparative remoteness of Scotland from Westminster meaning that the actual walk-out wouldn’t be directly and literally in the face of Boris Johnson. This relative remoteness would also have an impact in terms of attracting internation media and attention to Scotland’s situation.

“Plan E” – A National Covenant

In this plan, we can again look to an example of a democratic event that has already been used in Scotland. In the 1930s and 40s a movement grew up around the idea of a mass petition arguing for Scottish Home Rule. The Scottish Covenant was launched in 1949 and was eventually signed by over two million people (out of a total population of around 5.1 million).

A similar idea was formed around the 2012 Yes Declaration which was signed by one million people by the time of the independence referendum (though this petition was used much more as a campaigning covenent than as a tool to replace the referendum).

As an expression of democracy, this kind of petition is on a much stronger footing than either of the plebiscite Plans as they would be free from convoluting the vote for independence with votes for or against any particular party, person or other aspects of the offered manifestos.

It could also happen at any time and need not wait till a convenient election comes along nor would one need to be manufactured. Instead, the Covenant could be organised outwith the day-to-day politics, could be managed by an organisation analagous to Yes Scotland or could even be started by independence activists without or even in spite of the SNP or Scottish Government. Indeed, I’m aware of at least one organisation already attempting to do just this.

In terms of downsides, there are a few surrounding the technical issues of the petition and the ways in which it ensures that signatories are actual residents of Scotland AND ensures that the data it gathers is held safely but these are largely manageable via normal data protection processes. There are also issues that might arise if it takes a significant period of time to gather the signatures – what happens if someone who signed changes their mind and wishes to be taken off the list? – but these are also potentially mangeable (or, at least, should be made to be).

The biggest issue about this Plan – and you may be seeing a running theme by now – is one of acceptance.

The 1949 Scottish Covenant was deliberately ignored by the UK Government (possibly in part because it failed to be signed by an overwhelming majority of people in Scotland) so while there is precedent for holding such a democratic event, there is precedent for its failure too.

This goes double for any petition that is not launched or endorsed by the Scottish Government. Put yourself in Boris Johnson’s shoes on this point. If you were faced by a Scottish Covenant that Nicola Surgeon had herself ignored and not signed, why should you pay it any more attention?

“Plan F” – Unilateral Declaration of Independence

In some countries, independence has not come via a referendum, election or petition but has come from the regional or national Parliament passing a bill declaring their independence. In 2010 the International Court of Justice ruled that such an act is not prohibited by international law but this does not prevent the state of which the region is a part responding against what would be an act of secession.

From the breakup of the USSR, the dissolution of Yugoslavia, the secession of several colonies and territories from the United Kingdom amongst other examples, this has proven to be a viable route to independence for at least a dozen countries throughout the 19th and 20th centuries but it is also a route that has precipitated wars, killed tens of thousands of people and has led to territories becoming nominally independent but without international recognition leading to a kind of limbo existence where it is difficult run a livable country nevermind meaningfully engage with the world. You may hope that you can be Belgium, Bangladesh or Indonesia but you could just as easily become Kosovo, Somaliland or Artsakh.

It almost goes without saying that this wouldn’t itself be a democratic event – though it may well be predicated on strong democratic feeling within the country and may be the result of the failure of efforts to bring Westminster to the negotiations AFTER a democratic event but the act itself would be one taken by the Parliament alone. Much like the events that led Scotland to join the United Kingdom – an act which caused riots in the streets when it happened.

There is also a very substantial barrier to this as an option in that unlike the questions around the ability for the Scottish Parliament to pass legislation for “Plan B”, this plan quite clearly would be prohibited by the Scotland Act and thus when the bill is brought forward by the Scottish Government, the Presiding Officer could (and almost certainly would) declare it “ultra vires” or outwith the power of the Parliament. If the Parliament went ahead and passed the bill anyway it could be challenged in the Court and rendered null and void. Maybe not even Kosovo – but more like Catalonia.

Needless to say, this is hardly a strong position from which to demand that Boris Johnson comes to start dividing up debts and assets.

As romantically tempting as this option might be to some, the only way I can see it working is as a fall-back after the failure of one or more of the other Plans. Scotland would have to fight a court case to clarify the UK constitution with regard to the Scotland Act and the Treaty of Union (Did that treaty represent Scotland and England joining a single Union as two equal nations or did it represent, as the UK Government has argued, England subsuming Scotland and rendering the latter legally “extinguished“?). There would have to be a clear demonstration of public and democratic support – perhaps through an unsanctioned referendum – and there would have to be sufficient international support such that the UK or USA would not use its veto to block our accession to the UN (The Scottish Government HAS been using its trade missions and other unofficial diplomatic ties to build support within the EU nations the way that Catalonia was unable to, hasn’t it?). If ALL of that happens, then UDI wouldn’t be so much a bold declaration of intent but as a near-footnote worth of formality to complete a process already underway. In Part Two I’ll discuss the importance of international pressure both to support Scotland’s case and as a tool to encourage the UK’s acceptance of our independence.

The Important Step

You will almost certainly have noticed a running theme in all of these options. Pete Wishart certainly did. With the exception of “Plan A”, all of them can be undertaken without the express permission of the UK Government (which, right now, is disinclined to grant permission) but with the exception of “Plan A”, none of them can compel the UK Government to recognise the result of the act or to turn up at the negotiating table to start untangling our respective affairs. In effect, all of these plans, no matter how clever, legally nuanced or democratically sound, will bring Boris Johnson to recognise an independent Scotland while the is one vote more in it for him to say “No” than there is to say “Yes”. However, as “Plan A” requires the sanction of the UK Government to initiate, then the result is a distinction without a difference.

But on the other side of this, if the UK Government can be persuaded to come to the table then it matters a lot less which of the above plans are actually employed to make our point democratically clear (though they may baulk more at a UDI than an unsanctioned referendum).

I believe therefore that the focus should be less on which “Plan” we aim for – though feel free to discuss your preferences in the comments and within your party – but rather how we push past the next barrier – Bringing Boris to the table.

For that, come back here for Part Two.

[Edit 0900 12/07/2020 – Fixed some minor typos.]