The big picture
A lot of attention has been devoted recently, including by me, to Brexit and the May Deal vote and how all this might impact the result of the next General Election. So I guess it's time for an updated SITREP about Scottish Independence polling and what is the best path to a successful second IndyRef. Right now it's a typical half full-half empty situation. It has been better but it could be worse and all things considered it's fairly good. First of all, the overall trend is not bad as it shows a steady increase of the Yes vote all along 2018 after a really distressing second semester of 2017.
Recent polling fits the proverbial half-full-half-empty. Weighted average of the last six polls asking the standard question is better than the 2014 result, though not as good as The National claimed at the end of December. The National has the trend right but their numbers are on the optimistic side. Factoring in the margin of error, Yes is now somewhere between same as 2014 and 2% up.
Of course Yes not down is in itself good news given the never ending stream of Yesbaddery and SNPbaddery spewed by Unionists and their MSM cronies over the last four years. But voting intentions have been better and we can only hope they will get more better in the near future. Of course time is on our side and whatever happens Doon Sooth in Little England is just another brick in Hadrian's Wall while the 2014 trends prove that strong campaigning can now take Yes past 50%. Provided we do act on it and don't let any window of opportunity close right under our nose.
The First Minister's carefully crafted ambiguity between Independence and People's Vote can't be maintained for too long lest the Yes Movement lose all confidence in the SNP. Nicola has been warned strongly and repeatedly. Her move now.
The breakdown of Independence voting intentions by previous votes is also quite enlightening. First notable result is that 10% of both Yes and No voters have switched to the other side since 2014. While the Yes Movement should welcome 200k No voters switching to Yes, they should also be worried about the 162k Yes voters who switched to No and try finding out why they did. After all 10% of the 2014 Yes votes amounts to 4.5% of all votes cast, so gaining them back is enough to clear the 50% hurdle with some to spare.
Switching Conservative voters is kind of a long shot even with Scottish Yes Tories pushing for it. Cuddling LibDem voters is not worth the effort as there were only 180k of them in 2017 and we need >200k votes to switch the IndyRef2 result to Yes. So only one top target remains: Labour voters. Approximate triangulation says Labour-Remain voters under 34 are the most likely to agree that Scotland would face a better future as an Independent nation and could change their IndyRef2 vote accordingly. The 200k votes we need amount to 27% of 2017 Labour voters on top of the 36% already voting Yes, so getting about 60% of Labour voters to support Indy makes it. Which is very far from a done deal but also very far from impossible, just read the next section….
Note that people who did not vote in 2014 overwhelmingly favour Independence over any kind of Brexit. Statistically these are most likely to be people who were under 16 in 2014 and are now in their late teens thus making the case again that massive turnout among younger voters in one of the keys to win IndyRef2. Unionists should also pay more attention to what their own voters have to say as crosstabs of the Panelbase poll show that 46% of Labour voters and 49% of LibDem voters would favour Independence over a 'soft Brexit', rising to 55% and 59% respectively in case of a no-deal Brexit.
The magnitude of the No-to-Yes swing depends on the definition of the Brexit option but also on the period the poll was fielded. Clearly it increases with time. Here I also included the infamous Survation poll for Scotland in Union, as what is measured here is the difference between voting intentions in different situations and not the voting intentions themselves. As I said earlier the inbuilt pro-No bias in the question would skew the results the same way in all three cases, so becomes irrelevant when measuring the changes. Best proof is that the results are not massively different from other polls using the standard unbiased question.
Bottom line: Brexit switches about 7% from No to Yes, brings Independence that closer and Theresa May goes down in history as 'the first Prime Minister ever to break down the UK'. Twice. Once by splitting England right down the middle. And again by making Scotland choose freedom.
The most recent poll (Panelbase for the Sunday Times, fielded 30 November to 5 December) delivers 47% Yes / 53% No once undecideds are removed. This poll and some earlier ones also have several interesting questions about the impact of Brexit on Independence, which I will explore later. At this point it is also important to remember what happened before the 2014 Referendum and how Yes gradually gained traction all along the campaign.
The earliest poll, fielded by YouGov in April 2011, predicted 28% Yes-57% No-15% undecided or a decisive 33-67 against Independence once undecideds were removed. In the immediate aftermath of the Edinburgh Agreement in October 2012 YouGov predicted 29-55-14 so basically unchanged on 34-66 without undecideds. Then two years of campaigning shrunk the No lead from 32% to 11% despite all the lies delivered by a hate-filled Better Together and especially its Labour component used as a front by the then Coalition. Remember this 21% swing when assessing future prospects.
Why some polls should be discarded
The first obvious reason for discarding a poll on Independence is when they don't poll 16-17 year-olds. Doing so makes their sample unrepresentative of the Scottish electorate and tweaks the results towards No. The impact might be small but with close results even a 1% bias either way has to be eliminated.
The second case is when pollsters don't ask the standard question used in the 2014 referendum: Should Scotland be an independent country?. Some pollsters use different wordings that are likely to alter the results significantly. Best (or worst) example was when Survation (polling on behalf of Scotland In Union) asked: 'If there was a referendum tomorrow with the question 'Should Scotland remain in the United Kingdom or leave the United Kingdom?, how would you vote?' and offered the options of 'Remain' and 'Leave'. In the context of Brexit this wording was biased beyond shameless and the results reflected what you can expect from such a leading question: No 5% higher than in other polls fielded in the same period.
But a disingenuous and blatantly leading wording disqualifies only the headline question about voting intentions. Other qualitative questions using neutral wordings are still worth considering inasmuch as they shed an additional light on the big picture. And questions meant to assess a change in voting intentions under different scenarios are also worth including as the inbuilt bias is the same in all cases and what matters here is the difference between two results and not the individual results themselves.
Where are we now?
Recent polling fits the proverbial half-full-half-empty. Weighted average of the last six polls asking the standard question is better than the 2014 result, though not as good as The National claimed at the end of December. The National has the trend right but their numbers are on the optimistic side. Factoring in the margin of error, Yes is now somewhere between same as 2014 and 2% up.
Of course Yes not down is in itself good news given the never ending stream of Yesbaddery and SNPbaddery spewed by Unionists and their MSM cronies over the last four years. But voting intentions have been better and we can only hope they will get more better in the near future. Of course time is on our side and whatever happens Doon Sooth in Little England is just another brick in Hadrian's Wall while the 2014 trends prove that strong campaigning can now take Yes past 50%. Provided we do act on it and don't let any window of opportunity close right under our nose.
Now that Theresa May has suffered the worst defeat ever for an English Government, public opinion is likely to move more strongly towards a Yes vote. The 'significant and material change' is only days away and Scots have already made it clear that the now unavoidable hard Brexit is a major game-changer (more on this later). Nicola Sturgeon will also face intense pressure to move quickly to IndyRef2. Dave Llewellyn's and Jason McCann's initiatives are just the tip of the iceberg. Right now Scottish Greens, CommonSpace, Lesley Riddoch and even TV star Douglas Henshall are putting pressure on the SNP to move their arses.
The First Minister's carefully crafted ambiguity between Independence and People's Vote can't be maintained for too long lest the Yes Movement lose all confidence in the SNP. Nicola has been warned strongly and repeatedly. Her move now.
The demographics of Independence
The most recent poll about Independence was fielded by Panelbase in early December, asking the standard question and including 16 and 17-year olds. It delivered 47% for Yes, which looks like a realistic view of current voting intentions, and also included crosstabs that may shed some light on which parts of the electorate the Yes Movement should target first. Here is the breakdown on the usual demographics (gender, age, social grade):
It comes as no surprise that younger voters massively support Independence and other polls suggest it is even more massive when you focus on 16-24s instead of the broader 16-34s. But honestly I find it counter-intuitive that women's Yes vote lags 11% behind men's Yes vote though earlier polls show the same trend. Not because of any clichés about women's approach to politics but because recent Scottish polling shows women under 54 are more likely to support the SNP than men under 54 and you don't see this translating into Yes votes. One obvious target for the Yes campaign.
On the other hand the breakdown of voting intentions by social grade is consistent with voting intentions for pro-Indy parties in GE polling. But GE polling also shows that C2DEs are more likely to support not just the SNP but Labour too, so I guess the Yes campaign should also stress the many ways Independence would benefit the unprivileged who have been the constant targets of English austerity policies that Labour directly supported or let happen by abstaining.
The politics of Independence
The breakdown of Independence voting intentions by previous votes is also quite enlightening. First notable result is that 10% of both Yes and No voters have switched to the other side since 2014. While the Yes Movement should welcome 200k No voters switching to Yes, they should also be worried about the 162k Yes voters who switched to No and try finding out why they did. After all 10% of the 2014 Yes votes amounts to 4.5% of all votes cast, so gaining them back is enough to clear the 50% hurdle with some to spare.
Another result worth exploring further is that 10% of the SNP's Westminster voters and 15% of their Holyrood voters are also Noes to Indy. Incidentally this might explain why the SNP steadily do better on Holyrood polls than on Westminster polls: No voters choosing the SNP as the party of government in Edinburgh because they fully buy the 'managerial competence' talking point. Which is not the key to either Independence or a stronger mandate to seek it. Anyway 10% of the 2017 SNP voters would be barely 100k so switching them to Yes falls far short of what is needed to win. Further support has to gained from elsewhere.
Switching Conservative voters is kind of a long shot even with Scottish Yes Tories pushing for it. Cuddling LibDem voters is not worth the effort as there were only 180k of them in 2017 and we need >200k votes to switch the IndyRef2 result to Yes. So only one top target remains: Labour voters. Approximate triangulation says Labour-Remain voters under 34 are the most likely to agree that Scotland would face a better future as an Independent nation and could change their IndyRef2 vote accordingly. The 200k votes we need amount to 27% of 2017 Labour voters on top of the 36% already voting Yes, so getting about 60% of Labour voters to support Indy makes it. Which is very far from a done deal but also very far from impossible, just read the next section….
The Brexit Factor
In December Survation asked twice if Brexit would make respondents more or less likely to support Independence. Below are the crosstabs with the referendum vote. Data are the average of the two polls which delivered strikingly similar results well within MOE. Yes/No is based on the actual 2014 vote, not current voting intentions. 'All respondents' includes those who did not vote and those who refused to say how they voted, hence the tiny discrepancies with the Yes and No data.
Obviously 'more or less likely' does not necessarily translate into a change in voting intentions but it is still a good sign that a plurality would be more likely to support Independence, almost 18% ahead of 'less likely'. Panelbase tried another qualitative approach when they asked people 'Which do you believe would be better for Scotland?' in case of a soft or hard Brexit happened. Which also does not directly address voting intentions but sheds an encouraging light on people's feelings.
Note that people who did not vote in 2014 overwhelmingly favour Independence over any kind of Brexit. Statistically these are most likely to be people who were under 16 in 2014 and are now in their late teens thus making the case again that massive turnout among younger voters in one of the keys to win IndyRef2. Unionists should also pay more attention to what their own voters have to say as crosstabs of the Panelbase poll show that 46% of Labour voters and 49% of LibDem voters would favour Independence over a 'soft Brexit', rising to 55% and 59% respectively in case of a no-deal Brexit.
So does Brexit really boost Independence?
Polls fielded in late 2018 definitely show an increased support for Independence when Brexit scenarios are added to the questions. Pollsters usually test the baseline Yes-No vote against voting patterns in case of a 'soft Brexit' (with a deal, the exact nature of which remains unspecified as nobody including the English Government has the slightest clue about what it would actually imply) or a 'hard Brexit' (no deal, which is easier to figure out). I also included the last Panelbase poll though they did not actually ask about voting intentions in their Brexit options, but I take the optimistic view that 'Scotland better off independent' is just one millisecond away from morphing into a Yes vote.
The magnitude of the No-to-Yes swing depends on the definition of the Brexit option but also on the period the poll was fielded. Clearly it increases with time. Here I also included the infamous Survation poll for Scotland in Union, as what is measured here is the difference between voting intentions in different situations and not the voting intentions themselves. As I said earlier the inbuilt pro-No bias in the question would skew the results the same way in all three cases, so becomes irrelevant when measuring the changes. Best proof is that the results are not massively different from other polls using the standard unbiased question.
Bottom line: Brexit switches about 7% from No to Yes, brings Independence that closer and Theresa May goes down in history as 'the first Prime Minister ever to break down the UK'. Twice. Once by splitting England right down the middle. And again by making Scotland choose freedom.
Poll after poll Scots have confirmed they overwhelmingly don't want to be dragged into Tory-made Brexitocalypse against their will. A majority now see Independence as a better option even than a 'soft Brexit' and the Yes Movement need to translate this into actual Yes votes. I think the best way to achieve this is to concentrate right now on the path to Independence as Angus MacNeil argued a month ago already, and not to divert time, energy and resources towards a People's Vote. We can't assume a second EU referendum would deliver a Remain majority and the SNP's core strategy is Independence not EU membership, but they probably need to be reminded of that from time to time.
My Twitter followers might remember what I said just before the 2016 referendum: Vote Remain because it's the right thing to do right now, then get Indy and ask again. I stick to it no matter what: Indy first and EU is not our only option, EFTA should be on the table too. Joining the EEA as a member of EFTA would deliver the core benefits of the Single Market while allowing Independent Scotland to keep its own currency, thus avoiding an unnecessary and potentially divisive debate about whether to join or not to join the Eurozone.
The path to Independence
Refocusing now on the actual issue at hand, there are several paths to Scottish Independence. Each of them has upsides and downsides and some are more likely than others to happen and succeed. But whatever the road taken or not taken, time is of the essence (more on this later).
Negotiated settlement. Of course this will never happen for Scotland but there is an interesting precedent: Malta in 1964. It took lengthy and intense negotiations before an agreement was reached and Commons passed the Malta Independence Act, effective 21 September 1964. Then it took ten years for Malta to become a Republic and another five before the island finally got rid of English military presence. The negotiations were quite a protracted process and the longer it lasted, the more it fuelled anti-British sentiment on the island, in their case rightly seen as anti-colonial sentiment.
Ironically Malta was also dubbed 'too daft, too wee, too poor' by the English press at the time. Today Malta's GDP per capita is $42k (International Monetary Fund data for 2017). Higher than Italy, Spain, New Zealand and South Korea. On a par with Japan. Only slightly lower than France, the UK and Finland. Interestingly the CIA's data compiled for the United States government lead to the same conclusion on almost identical figures. Food for thought.
Claim of Right. John Bercow was possibly not paying enough attention when he allowed a debate and vote on 4 July. Or maybe he was and intended it to be one more blow for the English Government. Because the Claim of Right for Scotland has the potential to be a major game-changer. What Commons agreed to: That this House endorses the principles of the Claim of Right for Scotland, agreed by the Scottish Constitutional Convention in 1989 and by the Scottish Parliament in 2012, and therefore acknowledges the sovereign right of the Scottish people to determine the form of government best suited to their needs.
Important part is that the 2018 version does mention the 1989 version but does not explicitely quote it. So it has a much broader scope, i.e. not limited to establishing a Scottish Parliament but encompassing all possible forms of self-determination. I don't see it as an end in itself as it defines only a political principle, but as a means to an end that could be used in different situations including strongarming the English Government into granting a Section 30 Order, or in any Court to support the right for Scottish Parliament to call a binding referendum without a Section 30 Order or unilaterally repealing the infamous Union With England Act of 1707.
Section 30 Order. This one surely appears as the path of least resistance, complying as it does with England's current legal framework. Though 'legal' might not be the best way to describe it, see more on this below re: international law. And 'least resistance' might not be totally accurate either as having secured one in the past does not mean one can be secured in the future. But Nicola Sturgeon has made it part of here cautious approach so let's pretend it can actually happen. Not that Theresa May should be taken at her word here in case you wonder.
Peter A. Bell recently argued against even asking for a Section 30 Order. Some of his points are valid and important, such as Scotland having the unalienable right to self-determination under the United Nations Charter (more on this below). But I disagree with his other points and indeed his own arguments can easily be used to support the exact opposite conclusion, that Section 30 is actually a win-win situation for the Scottish Government. It's not like Nicola Sturgeon is any kind of stockholmsyndromee to Theresa May's stockholmsyndromer. Nicola might actually have more aces up her sleeve than a regular deck is allowed to contain.
Remember first that the Prime Minister of England has absolutely no reason to accept a Section 30 Order. If anything the Maybot came out of the crisis fully refuelled, reoiled, recharged and refurbished. In a word: strengthened. So let's say Nicola asks and May flatly refuses, as is the most likely scenario. Then Nicola goes to the media (I said media, not BBC) and certainly does not say that 'she tried that route and has now been forced by British intransigeance to go another way' as Peter wrote. Naw she says 'I tried that route solely out of courtesy as the Claim of Right for Scotland fully grants me the right to proceed otherwise. I see the Prime Minister reneges on a Commons vote that was supported even by her own party. So now I go for what was always my preferred option:... (pick one below)'. Game, set and match: Nicola.
Now let's try the leap into the inconceivable: May accepts the principle of a Section 30 Order but there are enough strings attached to refurbish the whole EUMS Symphony Orchestra for a full season. Peter is right, the most obvious would be a qualified majority and excluding 16 and 17-year olds from the franchise. Even better for Nicola as she can now argue May is negotiating in bad faith and never had any intention of granting the Section 30 Order. Time too to remind Englanders that Alex Salmond proposed a qualified majority (via quadruple lock) for the EU referendum and the English government rejected it. So bad faith, double standard, blah, blah and back to first scenario: courtesy, Claim of Right, PM reneging, preferred option… Game, set and match: Nicola. Again.
Getting a Section 30 Order would probably be easier with a minority Labour government forced to rely on shaky coalition or confidence and supply deals. Not that I'm advocating taking advantage of an old man facing an uncertain future. But after losing his few remaining Scottish friends in a bloodbath, Jeremy Corbyn might come to terms with the idea that it would be best after all to get rid of those pesky Jock MPs who never miss an opportunity to remind him what the word 'left' actually means.
And what better way to achieve that than granting them their wish and have that fucking IndyRef2? If Jeremy really cares about what's best for England he will swiftly go down that road no matter what Richard Leonard's successor says. Also remember that, under current voting patterns, the party who win UK-wide but lose in Scotland have a vested interest in getting rid of the SNP MPs because some 40-45 fewer opposition MPs automatically increases the share of seats for the first party. Works whoever wins, Labour or Conservatives. Just a wee smitch of math: if Labour bag 294 seats out of 650 at next GE they are 28 seats shy of a majority with Sinn Féin sitting out. With Scottish MPs gone Labour still has 293 seats (see why below) but now out of 591 which are actually 584, so they get a two-seat majority. Win-win.
Of course you can argue that seeking a Section 30 Order would be only a waste of time and energy and you would be right. It would most probably not work and all it could actually achieve would be exposing the hypocrisy, duplicity, callousness and unreliability of the English Government. All of which have amply been demonstrated time and time again. So let's forget it for now and see what the to-be-preferred options have to offer.
Scottish Parliament vote. Devolving the right to call a referendum is one of the key points of the SNP's 2016 Manifesto. And technically this is exactly what happened when Holyrood passed the Scottish Independence Referendum Act 2013.
Ironically Malta was also dubbed 'too daft, too wee, too poor' by the English press at the time. Today Malta's GDP per capita is $42k (International Monetary Fund data for 2017). Higher than Italy, Spain, New Zealand and South Korea. On a par with Japan. Only slightly lower than France, the UK and Finland. Interestingly the CIA's data compiled for the United States government lead to the same conclusion on almost identical figures. Food for thought.
Claim of Right. John Bercow was possibly not paying enough attention when he allowed a debate and vote on 4 July. Or maybe he was and intended it to be one more blow for the English Government. Because the Claim of Right for Scotland has the potential to be a major game-changer. What Commons agreed to: That this House endorses the principles of the Claim of Right for Scotland, agreed by the Scottish Constitutional Convention in 1989 and by the Scottish Parliament in 2012, and therefore acknowledges the sovereign right of the Scottish people to determine the form of government best suited to their needs.
Important part is that the 2018 version does mention the 1989 version but does not explicitely quote it. So it has a much broader scope, i.e. not limited to establishing a Scottish Parliament but encompassing all possible forms of self-determination. I don't see it as an end in itself as it defines only a political principle, but as a means to an end that could be used in different situations including strongarming the English Government into granting a Section 30 Order, or in any Court to support the right for Scottish Parliament to call a binding referendum without a Section 30 Order or unilaterally repealing the infamous Union With England Act of 1707.
Section 30 Order. This one surely appears as the path of least resistance, complying as it does with England's current legal framework. Though 'legal' might not be the best way to describe it, see more on this below re: international law. And 'least resistance' might not be totally accurate either as having secured one in the past does not mean one can be secured in the future. But Nicola Sturgeon has made it part of here cautious approach so let's pretend it can actually happen. Not that Theresa May should be taken at her word here in case you wonder.
Remember first that the Prime Minister of England has absolutely no reason to accept a Section 30 Order. If anything the Maybot came out of the crisis fully refuelled, reoiled, recharged and refurbished. In a word: strengthened. So let's say Nicola asks and May flatly refuses, as is the most likely scenario. Then Nicola goes to the media (I said media, not BBC) and certainly does not say that 'she tried that route and has now been forced by British intransigeance to go another way' as Peter wrote. Naw she says 'I tried that route solely out of courtesy as the Claim of Right for Scotland fully grants me the right to proceed otherwise. I see the Prime Minister reneges on a Commons vote that was supported even by her own party. So now I go for what was always my preferred option:... (pick one below)'. Game, set and match: Nicola.
Now let's try the leap into the inconceivable: May accepts the principle of a Section 30 Order but there are enough strings attached to refurbish the whole EUMS Symphony Orchestra for a full season. Peter is right, the most obvious would be a qualified majority and excluding 16 and 17-year olds from the franchise. Even better for Nicola as she can now argue May is negotiating in bad faith and never had any intention of granting the Section 30 Order. Time too to remind Englanders that Alex Salmond proposed a qualified majority (via quadruple lock) for the EU referendum and the English government rejected it. So bad faith, double standard, blah, blah and back to first scenario: courtesy, Claim of Right, PM reneging, preferred option… Game, set and match: Nicola. Again.
Getting a Section 30 Order would probably be easier with a minority Labour government forced to rely on shaky coalition or confidence and supply deals. Not that I'm advocating taking advantage of an old man facing an uncertain future. But after losing his few remaining Scottish friends in a bloodbath, Jeremy Corbyn might come to terms with the idea that it would be best after all to get rid of those pesky Jock MPs who never miss an opportunity to remind him what the word 'left' actually means.
And what better way to achieve that than granting them their wish and have that fucking IndyRef2? If Jeremy really cares about what's best for England he will swiftly go down that road no matter what Richard Leonard's successor says. Also remember that, under current voting patterns, the party who win UK-wide but lose in Scotland have a vested interest in getting rid of the SNP MPs because some 40-45 fewer opposition MPs automatically increases the share of seats for the first party. Works whoever wins, Labour or Conservatives. Just a wee smitch of math: if Labour bag 294 seats out of 650 at next GE they are 28 seats shy of a majority with Sinn Féin sitting out. With Scottish MPs gone Labour still has 293 seats (see why below) but now out of 591 which are actually 584, so they get a two-seat majority. Win-win.
Of course you can argue that seeking a Section 30 Order would be only a waste of time and energy and you would be right. It would most probably not work and all it could actually achieve would be exposing the hypocrisy, duplicity, callousness and unreliability of the English Government. All of which have amply been demonstrated time and time again. So let's forget it for now and see what the to-be-preferred options have to offer.
Scottish Parliament vote. Devolving the right to call a referendum is one of the key points of the SNP's 2016 Manifesto. And technically this is exactly what happened when Holyrood passed the Scottish Independence Referendum Act 2013.
Of course Holyrood back then only held a temporary right to call a referendum under the infamous Section 30 Order. The SNP want to make it permanent which would require an amendment to Part I, Paragraph 1 of Schedule 5 of the Scotland Act 1998, the key provision that defines reserved constitutional matters. Even if this is the straightforward legal path, it would trigger months of debate in the unlikely event the English Government would allow it to proceed. Which could be considered an unnecessary waste of time and energy for a provision that is meant to be used only once.
Then the suitable alternative would be Holyrood voting to call IndyRef2 no matter what, fully aware that it is not a devolved matter, and then the Scottish Government arguing that it is clearly within their prerogatives based on the Claim of Right. Of course the English Government would challenge such a vote in court, which is why it should happen as quickly as possible if the Scottish Government chooses this strategy. Because the only hope of success would be a ruling by the European Court of Justice in favour of the Scottish Government, and the ECJ has jurisdiction on UK matters only until the end of the Brexit transition period (more on this below).
The Scottish Government could also avoid any legal hassles by claiming the referendum is advisory only, which would fit nicely into one of the loopholes of the Scotland Act. And after Yes wins just pull a vintage May and say: The People Hath Spoken so let's make it binding after all and see where we go from here. Or cunningly approach the English Government with a new proposal: we agree it was only advisory so now just grant us that fucking Section 30 Order and we'll call it 'confirmatory referendum', but a binding one this time. Would be fun to watch.
Unilateral Declaration of Independence (UDI). Saved the best for last. This is the nuclear option and one that would trigger one muckle clusterfuck of a constitutional and political crisis, not to mention the international fallout. Technically all the Scottish Parliament has to do is repeal the Union With England Act passed on 16 January 1707, 312 years ago this week. Unfortunately they can't repeal the Union With Scotland Act of 1706 as this one was passed by the English Parliament of way back then. Of course this falls under reserved matters (see the already mentioned Part I, Paragraph 1 of Schedule 5 of the Scotland Act 1998) but you can argue it also fits with that part of the Claim of Right that grants Scotland 'the sovereign right to determine the form of government best suited to their needs'.
A month ago Craig Murray published an interesting article on UDI. There is one point though that Craig did not mention: Schedule 5, Part I, Paragraph 1 of the Scotland Act 1998 could (and should) be legally challenged all the way up to the United Nations' International Court of Justice. Because it submits Scottish Independence to the will of the UK by making it a reserved matter, thus contradicting Article I, Paragraph 2 of the United Nations Charter which explicitely establishes 'the principle of self-determination of peoples'. The United Kingdom would find it difficult to argue against that as they are a founding member of the United Nations, and moreover they explicitely made the point themselves that 'international law contains no prohibition against declarations of independence as such'.
More importantly the principle of UDI is considered generally to be fully supported by international law. As Craig pointed out all it takes is international recognition. Guess Russia would be too happy to oblige though that support would kind of stink. Then we would get France in the name of the Auld Alliance and the sheer joy of pissing off England. And lots of African and Asian countries who had to fight for their independence, many of them from England. Besides the United Kingdom themselves supported the validity of UDI in a legal opinion paper submitted in 2009 in relation to the situation in Kosovo. The most relevant part of this being 'representative institutions may legitimately act and seek to reflect the views of their constituents beyond the scope of already conferred powers'. Now transpose it to our here-and-now: if a majority of Scots want Independence then Scotland can go for UDI even if the Scotland Act rules it out. The UK's position, not mine.
Incidentally and ironically some English Overseas Territories threatened to secede if the were dragged into transparency about tax evaders against their will. And the English Government backed down on what was after all just one of many of David Cameron's international commitments. Of course this does not set a precedent and can't be replicated by Scotland. Unless we declare Na h-Eileanan an Iar to be a tax haven…
The timing of Independence
The obvious answer is 'the sooner the better' but many, and sometimes contradictory, factors are at play here. First of all the current mandate for independence has a shelf date which is about 25 March 2021, the likely date for dissolution of Scottish Parliament if the next election is held on 6 May 2021 as scheduled. Then the How will also be a determining factor in deciding the When. Basically the window of opportunity is between 22 January (the day after the deadline for a Commons vote on the Withdrawal Agreement) and 30 March (the day Brexit officially takes effect). 31 December 2020 (the last day of the Brexit transition period) is also a significant deadline as it would be the last day the European Court of Justice has jurisdiction over UK matters.
Campaigning for the 2014 referendum technically started in May 2012 when Yes Scotland was launched, about 28 months before the vote. Although it can be argued it started much earlier than this, like when the Scottish Government published their White Paper on Independence in Novembre 2009. But now the Yes Movement's best interests would be best served by a much shorter campaign. The pros and cons of Independence have already been discussed at length so the Yes Movement could focus a short campaign on why and how Independence would be the only way to protect Scotland's best interests in the post-Brexit chaos. Besides a short campaign would have the added bonus of allowing Project Fear III far less time to deploy and spew shameless lies and smear again.
We also must take into account the real security risks involved now that English fascists have harassed Tory MP Anna Soubry and Corbynista journalist Owen Jones in London, while Stephen Yaxley-Lennon stalks SNP MP Stewart McDonald in Glasgow. Few openly mention it but I guess many already fear the real possibility of a repeat 'Jo Cox situation'. Never forget that the Tory Party and the Tory-backing hate-spewing English press are fully responsible for this alarming state of affairs where English fascism can bloom unfettered, and never forgive. But let's not dwell in doom and gloom for too long and let's see how the Yes Movement can best use a short campaign to win IndyRef2.
First the SNP, as the major organized force in the Yes Movement, should clarify their present stand. I'm not even sure anymore Nicola Sturgeon and Keith Brown are 100% on the same page here, and obviously Angus MacNeil is on a different one and has been for a while. Sometimes I wonder if Keith actually knows which page he's on when he mishmashes contradictory options. Clearly the tight schedule means the SNP must be careful what they wish for and what they publicly stand for, as George Kerevan warned a month ago. Best example is support for a People's Vote whatever form it takes. A second EU referendum would need at least six months to be organized and held, and probably more in the (extremely unlikely) scenario of holding a rematch of the 2016 EU referendum. And the result of a rematch is far from being carved in stone whatever polls say right now.
People's Vote in any form would neutralize roughly the whole of 2019, leaving only a year or less to hold IndyRef2 before Brexit becomes final. In the meantime the SNP would find themselves sharing the stage with such luminaries as Ian Murray and Willie Rennie, who would undoubtedly spin 'UK better in EU' into 'Scotland better in UK', a strong reason for the SNP not to push too strongly for a People's vote and secretly wish it will never happen. Which fortunately remains the most likely scenario. A snap General Election would be a wholly different beast and the SNP should actually wish it does happen at the earliest opportunity while the English Government's incompetence and shambolic handling of all major issues is still fresh in everybody's memory.
A snap GE would be a golden opportunity to campaign strongly for Independence as a clear majority of Scottish MPs is a key part of the triple-lock mandate for Independence. The SNP should remember they lost seats at the 2017 GE not because they support Independence but because they did not campaign strongly enough for it back then, leading many SNP supporters to abstain in many key races. Election results don't lie: 2017 turnout went down 261k from 2015 but the SNP vote was 477k down. Disillusioned voters abstaining probably cost the SNP 7 to 10 seats. Recent polling shows a radically different pattern as the SNP could be up to 40-43% of the popular vote. The Westminster seat projection based on the latest YouGov mega-poll shows the SNP gaining 11 seats and even the worst case scenario would still be 6 seats up.
This of course represents the state of mind of Scottish public opinion in late December-early January. Only further polling can tell us how recent events influenced it and in which direction. My hunch though is that the SNP failing to take a strong stance on Independence and set a timetable to deliver it could only result in lower support and a possible loss of seats. And the same pattern might very well repeat itself at the next Holyrood election if current polling is to be believed. Both of which would void the current triple-lock mandate and set back any prospect of Independence to the next generation at best. You've been warned.
Finally I just want to stress again that time is of the essence especially is the path to Independence is not through a Section 30 Order. The other options will undoubtedly be challenged in court by the English Government. First stage would be the Court of Session and the losing party would appeal and take the case to the Supreme Court. The final stage would have to be the European Court of Justice but it has juridiction over UK cases only until the end of the Brexit transition period. Any move by the Scottish Government has to be swift unless they risk losing support, meaning they got to get the ball rolling in February or March at the latest, so that IndyRef2 can happen within the next twelve months, let's say hypothetically on 19 September 2019 with 16 January 2020 a fitting fallback option. The December 2020 deadline should be seen only as a safety net if taking the matter to the European Court of Justice proves unavoidable.
If you allow me one malcolmtuckerism, now is no longer the time to procrasturbate. Scotland has endured English rule and contempt for far too long. Now's the time to show them the Cringe is over for good and say it loud and clear: Fuck It Let's Go!
That ship will sail only once. Let's not miss it.
Saor Alba Gu Bràth
Saor Alba Gu Bràth
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© Jon Anderson, Vangelis Papathanassiou 1981
This state of independence shall be
The game has just begun
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