Next Labour government should set out path to independence referendum

It may seem to be a strange time to be writing about a future independence referendum.

The potential of a second indyref has been all but absent from this general election campaign which, once upon a time, was meant to be a de facto referendum on Scotland’s constitutional future. Instead, Labour looks set to reclaim a large part of the Scottish fiefdom that was dramatically seized from it nine years ago.

However, only the most myopic observer would truly believe the question of Scotland’s constitutional future will lie dormant for long. Whilst support for the SNP has declined precipitously, polls suggest that over 45% of the Scottish public still support independence.

Demographic analysis demonstrates that independence is associated with younger voting cohorts, socially liberal attitudes and higher educational attainment – individuals meeting these criteria look likely to form a larger part of the Scottish electorate in years to come. It does not seem implausible that an independence-supporting majority will exist in the coming years and decades, especially if Labour do not deliver their promised ‘decade of national renewal’.

It is therefore incumbent on an incoming Labour government to develop a strategy to help navigate these waters. One proposal, which I argue for in a recent article, is the development and passage of a ‘Scottish Clarity Act’, that would outline when a future referendum could be held, the rules of said referendum and what would happen after, irrespective of the result. As far as possible, they should pursue this legislation in collaboration with the Scottish government, to ensure the process is perceived as legitimate by both sides of the constitutional debate.

This idea is based on the approach taken by Canada’s federal government following the close-run Quebec independence referendum in 1995, where they passed legislation that provided greater clarity on the secession process.

Interestingly, Canada’s then-Prime Minister, Jean Chretien, recounted in his autobiography that he pursued such a strategy despite a dip in support for Quebec independence, aware that the issue would return and that, at that point, clarity over the process would be advantageous when it did. Labour strategists, take note.

To be effective, a Scottish Clarity Act must answer three questions.

Firstly, under what conditions will Westminster countenance a future referendum? The 2022 Supreme Court ruling on secession highlighted that the only road to a future Indyref is through Westminster, but there is debate between nationalists and unionists over when and how a poll could be triggered. I suggest that aggregate polling support for independence over a period of two years, coupled with an independence-supporting majority in Holyrood would reflect broad-based support for a future referendum.

Secondly, and most easily, a Clarity Act could provide an outline on the rules of the road for a referendum campaign. Most of this could be lifted from the 2012 Edinburgh Agreement and the Scottish Parliament’s Referendums Act. Perhaps the key issue of contention here is whether Scots living elsewhere in the UK could be effectively identified and enfranchised.

Lastly, a Scottish Clarity Act would outline what would happen after a referendum. If Scotland votes ‘yes’ it should outline a structured negotiation process (much like the EU’s Article 50 process) and make provision for a confirmatory referendum to ensure the Scottish electorate are happy with the outcome. If the answer is ‘no’, then it should clarify how much time must elapse before a future referendum can be held (irrespective of nationalist support).

The ‘once in a generation’ soundbite that was first deployed by nationalists during the referendum (and has since been seized-upon by unionists) should be given formal expression within legislation, which should stipulate a 20-year grace period between referenda.

It is not hard to conceive of the arguments against this from either side. From independence supporters, this might be lambasted as a form of unionist statecraft, designed to trap Scotland within the Union against its will. For Unionists, this may strike of nationalist appeasement, that would serve to incentivise secessionist activity and make independence more likely.

I think both responses are wrongheaded and that, in actuality, a Clarity Act could be amenable to both sides. For Unionists, it provides increased constitutional stability and ensures that, if it comes down to it, secession occurs procedurally and lawfully.

By locking in a second referendum requirement, it would also ensure Scotland could not secede on a temporary, thin majority. For independence supporters, this approach would give them a clear, legal route to secession. 

There are other benefits that would emerge from a Scottish Clarity Act. As outlined in a recent report by Our Scottish Future, ‘the divide over independence and a second referendum, not the implementation of policy’ dominates Scottish politics. Some clarity over the secession process would surely allow for more focus to be placed on other priority issues, as opposed to constitutional triangulation.

Moreover, the recent (now abandoned) SNP proposal to use a future election as a de facto referendum is a dangerous constitutional gambit that would risk political instability should they re-adopt such a strategy in the future. Governments in both Westminster and Holyrood should head off this potential outcome by agreeing what the rules surrounding a future poll are. 

Lastly, the lack of clarity with regards to secession in Scotland leads to a dual democratic deficit.

On one hand, independence supporters may suggest that Westminster is stifling the will of the Scottish people by refusing to countenance a future referendum.

On the other, many unionists feel that the SNP are trying to capitalise on an unpopular Westminster government to force another referendum, despite the clear result in 2014. Without clarity, both sides have a strong case.

It has been almost ten years since the 2014 referendum and Scotland remains stuck in constitutional limbo. A temporary lull in SNP support should not be confused with the recession of the independence question from Scottish political life – it will return at some point.

Governments in both Westminster and Holyrood owe the Scottish people some clarity on what their democratic future looks like.

Steph Coulter is a researcher at the Bennett Institute for Public Policy at Cambridge University.