The UK Supreme Court ruled last week - as predicted - that the Scottish Parliament does not have the constitutional right to hold an independence referendum without the consent of Westminster. I arranged to meet two friends outside Holyrood to be there when the historic verdict was due to be announced. There was one film crew speaking heavily accented English - but the total absence of UK media on that grey November morning told its own story.
The small knot of indy supporters whooped and waved their saltires at one point and we were briefly misled - I think by the international film crew - into thinking it had gone the other way and we had a scoop. After a moment of excitement, we realised our mistake and adjourned to Clarinda’s cosy cafe for a restorative cuppa.
What did seem surprising, when I read the judgment later, was its quashing of the question of the right to self-determination. The Supreme Court said that this right only belongs to a colony, that Scotland is clearly not a colony and therefore has no right to “secede”. I was not the only person surprised by this.
In the current issue of Prospect magazine, Sionaidh Douglas-Scott, who is an expert on Scots and UK law and a fellow at Princeton, writes that the Supreme Cort took a narrow procedural view of the question and did not confront the underlying issues.
Douglas-Scott writes: “Constitutional relations between Scotland and England have existed for over 300 years, since the UK was established by a Treaty of Union between two sovereign states... But this relationship, and the issue of consent of both parties to it, is an ongoing one.”
She writes that “time and time again” the UK government has indicated that Scotland is a voluntary partner in the Union and has the right to consider its future. “Through its own conduct over many years, the UK government has generated an expectation allowing for independence in principle. If the UK government refuses to countenance any new independence referendum, it will undermine the characterisation of the Union as voluntary.”
Douglas-Scott argues that by failing to recognise the Scottish government’s mandate, the UK government risks undermining the principles of democracy and the rule of law. There is precedent for using an election as a plebiscite as Sinn Fein did in 1918 but Douglas-Scott argues that it would be better for the UK government to change its mind and allow a referendum.
A plebiscite election is the independence movement’s plan B; so unless something fundamental changes, the small knot of people outside Holyrood were witnessing the starting gun being fired on that new campaign.
As we waited for the verdict that morning, my friend the storyteller Marie Louise Cochrane recalled holding a vigil with Christian friends at the time of the last referendum, to recognise they held differing views on the constitution and to pray for a peaceful outcome. That is perhaps the ground we should seek now. It seems to me there is a collective drawing in of breath. The newspapers are mostly on one side or another; so are the politicians. But ordinary people are part of networks of friends and family who hold different views.
I have changed sides since 2014, when I struggled to make my mind up for months before becoming a vehement “No”. I barely slept the last few days before the vote. I had become convinced that a marginal “Yes” would be a disaster and spent my time falling out with “Yes” voting friends on Facebook and having long phone conversations with my two closest “No” friends - one of these now does not want to vote against independence and the other, who lives in London, is still No. The two pals I was at Holyrood with last week were both “Yes” last time - now we are on the same side, as are most of my close family. My husband and I were on different sides last time - he has been a long-time supporter of Scottish independence, a fact he puts down partly to having worked in London much of his life, where he feels Scotland is generally regarded with indifference. it is good to be on the same team now. However, within my wider family and friends, there are some equally committed “Nos” and I am aware that their perspective is different.
Reading Joe Pike’s warts-and-all account of the 2014 campaign recently “Project Fear”, I realise I was squarely in the frame for most of the Better Together messaging back then. They ignored the groups most likely to vote “No” or “Yes” and concentrated on the two in the middle. These were called “Comfortable Pragmatists” and “Uncommitted Security Seekers”. The first was mostly male - they tended to vote Labour or Lib Dem but credited the Scottish Government with some important successes. The other was mostly female, and that was where I was. Concerned about our own and our family’s finances, we security seekers wanted to know which side would be better for jobs.
But focus groups found negative messages could be perceived by both these vital groups as anti-Scottish and backfire - they had to retreat from implying that Scotland is uniquely incapable of self-government. They had the most success with messages that were carefully calibrated to cast doubt on independence plans - using phrases like: “Could this go wrong?”, “What’s the time scale?”, “But what’s plan B?”
The trope of the time - a voter deciding whether to follow Alex Salmond rushing down a hill shouting “Freedom” while Alistair Darling coughed drily and asked if they had fully considered the consequences was deliberate. This actually worked pretty well for Better Together.
In 2016, the Vote Leave campaign in the Brexit referendum learned from 2014 - they chose to be deliberately vague about what Brexit would look like because they had seen how Better Together wrong-footed the Yes campaign by quoting sources - sometimes of dubious authority - who contradicted their plans.
That Brexit vote changed the picture for me and many others in Scotland. The leaflet that Better Together sent to every house in Scotland in 2014 asking us to vote for the Union to ensure we have a seat at the top table in the EU was blatant mis-selling.
Douglas-Scott acknowledges in her article that Scots were misled in the 2014 referendum: “During that campaign, the pro-UK Better Together alliance conspicuously argued that Scotland could only retain its EU membership by remaining in the UK. This was not so; and since then, Brexit has taken place. In the 2016 EU referendum, Scotland voted 62 percent in favour of Remain. Although the Scottish government protested that it was undemocratic for Scotland to be taken out of the EU against its will, this argument was ignored by the UK government, and the whole UK exited the EU on 31st January 2020.”
Brexit was a game-changer in more fundamental ways. Back in 1707, the Union had the solid backing of a great many middle-class Scots because they saw it as a route to opportunity. Union with post-Brexit little England is a fundamentally different proposition.
One lesson from the Better Together campaign might be that telling Scotland that it is no longer a country but is a region of the UK without the right to self-determination could be a risky move. Personally, I would like to see the Labour Party change its stance and promise another referendum on Scottish independence - I think that would be consistent with its democratic principles.
I love your honesty about the last IndyRef Jackie - I remember your anxiety and doubts very well. I’m glad you changed sides - it is such a divisive issue and I am grateful that you explain the granular detail so well.
An interesting and nuanced post Jackie, thank you. One question, if Scotland did become independent, what do you think would happen to the SNP?