The steps that will follow a big SNP election win in 2021
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It is May 2021. The morning after the Scottish parliament election. And in line with the most recent polling, the SNP has won a landslide, taking 56% of the constituency vote and 47% of the regional vote.
The result means a significant Holyrood majority for the SNP and Nicola Sturgeon declares it a clear mandate for a second independence referendum.
So: what happens next? Will Boris Johnson continue to say no? And, if he does, how will the SNP force his hand? If Sturgeon does secure a second referendum, how will the campaign be waged? And if Yes wins, what then? How long will it take for Scotland to uncouple itself from the rest of the UK and rejoin the EU? A labyrinth of possibilities awaits.
How does the SNP secure a second referendum?
This dilemma has been fiercely debated in pro-independence circles. The 2014 referendum took place after prime minister David Cameron granted a Section 30 order, temporarily transferring powers to the Scottish parliament. Ideally, a second referendum would follow the same course. But Johnson has said he will never agree, insisting that the vote six years ago was a once-in-a-generation event.
Last year, Holyrood passed the Referendums (Scotland) Act, which provides a general framework for holding referendums, setting out rules on issues like spending and campaigning activity. But there still needs to be a piece of legislation which triggers the application of the Referendums (Scotland) Act. So can Holyrood enact that legislation itself, or will it need the permission of Westminster, another Section 30 order?
This question is currently being tested at the Court of Session in Edinburgh by pro-independence and disability campaigner Martin Keatings. He wants the court to declare that, under the provisions of the Scotland Act 1998, the Scottish parliament does have the power to legislate for the holding of an independence referendum, without the consent of the UK government.
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But his legal action is not supported by the Scottish government. This is because a win would likely be appealed by the UK government (and there is no guarantee that Keatings, who has 7,000 supporters for a crowdfunding effort, would be able to raise the funds to keep on fighting), while a loss in the case would rob the SNP of any future leverage.
The terms of a successful action would also be set out in a judgment, allowing Westminster to pass legislation to close the gap. In other words, the Conservative government could enact a new law which would render a future referendum illegal.
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Crucially, the Scottish government wants an independent Scotland to be part of the EU, so the result of any future referendum needs to be internationally acknowledged as legitimate. For that to be guaranteed, it requires not only the consent of the UK government to stage a referendum, but also its active participation in a Yes/No campaign.
Conservatives opposed a fresh referendum in their 2019 general election manifesto and since then, Johnson has refused to budge, telling a Westminster committee of MPs: “I don’t think a generation has elapsed since 2014 from my understanding of human biology.”
If Johnson keeps refusing to consent to a referendum, Nicola Sturgeon will find it difficult to marshal the hardliners in the movement who believe she is too cautious.
However, most within the SNP mainstream see this as a 'don’t blink' moment. They believe that if they stand firm, Johnson will bow to pressure. In the face of an SNP majority in Scotland, Labour and the Liberal Democrats would almost certainly support a second referendum (while continuing to oppose independence). And there would be a clamour from the international community too.
Former head of communications for the Scottish Conservatives, Andy Maciver says there has already been a behind-the-scenes shift from 'Not ever' to 'If it’s going to happen – how should it be done?' So a U-turn by the prime minister is not impossible.
If consent were given shortly after the election, a referendum could be held as early as November 2021, but is more likely to take place in Spring 2022.
What would the campaign look like?
Much has changed for both sides since 2014. Let’s start with the Unionists. In the run-up to the last referendum, the No campaign was led by Labour because – despite a ruling Tory/Lib Dem coalition in Westminster – Labour held more sway north of the border.
But Labour is much weakened in Scotland. It currently has just one Westminster MP (compared to the Conservatives’ six) and 23 MSPs in the Scottish parliament (compared to the Tories’ 31).
An SNP victory in May’s Holyrood election will almost certainly end Richard Leonard’s tenure as leader of the Scottish Labour Party, and who knows who’ll be left to take his place?
So there is less argument for the No campaign to be led by Labour this time. Equally, however, it is difficult to come up with a Conservative who wouldn’t be viewed as toxic.
On top of this, Scottish Labour blames its current misfortunes on having campaigned alongside the Tories last time round and may refuse to share a platform. All this being so, Unionists would be left with two options: a disparate No campaign where each political party makes its own case (difficult for broadcasters who are always looking for a head-to-head); or a campaign led by someone outside of the party system – JK Rowling is the most well-known anti-independence public figure, but after wading into the trans rights debate, the author is divisive in her own way.
But Maciver says focusing too much on who will lead the campaign misses the point. “The problem is not the messenger, it is the message,” he says. “They need to come up with a vision of what the union is going to look like for the next 100 years, so people have something positive to vote for rather than pulling between negatives.”
Earlier this month, Johnson undermined such efforts when he branded devolution “a disaster north of the border”. He may have tried to backtrack, but the damage was done.
“It’s beginning to look like the 1990s again for the Tory party in Scotland,” says Maciver, by which he means they could be wiped from the political map as Labour and the Lib Dems shift in favour of a new sort of union with more powers for Scotland “with the Tories out on a limb as the people who don’t respect devolution”.
Like No, the Yes camp is more divided than before, though it seems likely they will put their differences to one side in pursuit of their goal. The hardest task may be for the SNP to cater to those on the left of the movement – the Greens, All Under One Banner, Common Weal – without scaring off centrist people who voted No before but are persuadable now.
The trickiest policy areas for the SNP remain the same as in 2014 – how do you answer fundamental questions about currency, the economy, pensions? Recent polls suggest the majority of wealthier so-called ABC1s are now pro-Yes, though there are those within the business community still sceptical about the SNP’s fiscal competence.
Overall, however, the arguments about economic stability have lost some of their force: it is easier to make convincing economic arguments for the status quo during a time of stability than when the UK is heading over the Brexit cliff. Last time, the No campaign used the 'Project Fear' tactic, playing upon anxieties about whether a vote for independence was a vote for financial ruin. Amid the economic shocks of Covid and Brexit, a leap into the unknown might not seem quite so frightening.
Rejoining the EU after a Yes vote
Given 62% of Scots voted to Remain, it seems likely the government of an independent Scotland would want to rejoin the EU.
According to Anthony Salamone, managing director of Scottish political analysis firm European Merchants, there are no insurmountable impediments to going back in, but nor will the country be granted any fast-track deal. It will have to make its way through the various steps just like everyone else.
Scotland cannot apply to join the EU until it has uncoupled from the UK and is formally independent. But Salamone says in the wake of a Yes vote, the Scottish and UK governments should negotiate a framework agreement around the process of separation, establishing that the UK government accepts the Scottish government entering into discussions with the EU.
“I think it’s crucial to talk early to set up the so-called ‘association agreement’, which establishes what the relationship between Scotland and the EU would be from the date of independence to the day it joins,” Salamone says. “That’s where Scotland should spend whatever political capital it has: in trying to get a really good interim relationship for those years when it is trying to join the EU where it has as close a relationship with the single market as it wants.”
As a developed democracy, Scotland should meet most of the EU’s baseline demands, the Copenhagen criteria for accession: an ability to demonstrate stable governance; protection for human rights; a market economy; and the ability to adhere to the EU’s political and economic aims.
It should also quickly meet the requirements of the acquis – Europe’s common rights and obligations that make up the body of EU law – in areas that are devolved to member states. However huge swathes of the acquis relate to matters carried out at UK level.
“An independent Scotland would need a central bank, a competition regulator and other institutions,” Salamone says. “All those things would have to be set up and that would take time.”
Some sceptics have suggested Scotland’s deficit and a perceived reluctance to join the Euro would be problematic.
But new members are required only to commit to working towards monetary union and a deficit of below 3%, and there is no set timetable. Croatia, the last country to join, did so in 2013 with a deficit of 5.3%, which it has since reduced.
Salamone believes Scotland could negotiate an opt-out from Schengen passport and border controls that would allow it to be in an amended Common Travel Area with Ireland and the rest of the UK, although there would have to be some sort of control over goods.
“I think it’s manageable,” he says. “Yes, you have to meet the aquis, including the deficit stuff, but it is all subject to negotiation, and that’s what has happened for every country which has joined.”
How long might it take?
If a second referendum were agreed soon after the Holyrood elections, and held in the spring of 2022, experts suggest Scotland could be fully independent and back in the EU by 2030. This includes two to three years to uncouple from the UK, and four to five years to meet the requirements for joining the EU.
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