Our Involuntary Union?

Simon Barrow considers the politics of independence after the Supreme Court verdict and describes a strategy for the SNP to grow support for independence.

The UK Supreme Court decided in November that the Scottish Government does not have the legal competence to hold an advisory referendum on independence under the Scotland Act 1998. The decision moved the independence question out of the legal arena and firmly back into the political one. The issues for 2023 and beyond are: i) how pro-independence forces will respond; ii) whether a cohesive and coherent ‘independence movement’ can still be spoken of in the face of other differences, and; iii) what the political relation of all this is to a left in Scotland which remains divided on the constitutional issue and which, therefore, struggles to assert an influence commensurate with its actual level of support around core issues.

In one sense, the Supreme Court verdict was a defeat for the Scottish Government and for wider independence currents. But it also arguably strengthened the actual case for self-government by illustrating that under current conditions the people of Scotland are not, in fact, sovereign (as the Claim of Right tradition declares). We are not citizens but subjects, whose ability to act is always finally subject to the UK Crown, the state that flows from it, and Scotland’s unalterable minority status within its institutions. As Canon Kenyon Wright famously declared, ‘power devolved is power retained.’ The highest court in the land agrees. This ought not to be a shock but, perhaps, an invitation to the left across Britain to reconsider its often-undeveloped theorisation of the nature of the British state.

It should be clear now that the only viable route to a Scottish state acknowledged within the global system is ultimately through a poll that both the UK government and the international community will recognise. Calling a General Election a ‘plebiscite’ will not achieve that. Further, in order to secure a recognised pathway, it will be necessary to arrive at a political situation where the desire for independence is the will of a settled majority of somewhere in the region of 55-60% of voters. In such a situation it becomes politically unsustainable for a UK Government (most likely a Labour one, in practice) to refuse a referendum in the long run – though many delaying, diverting and gerrymandering tactics would no doubt be deployed, especially by the Conservatives.

Even such a staunch opponent of an independent Scotland as former Tory MSP and Glasgow public law professor, Adam Tomkins, recognises that, in the end, Scotland cannot perpetually be kept captive within a voluntary union against its will. Former senior civil servant (now academic) Ciaran Martin, who wrote the Edinburgh Agreement signed by Alex Salmond and David Cameron back in October 2012 (which paved the way for a Section 30 order), agrees. He has argued that it would provoke a major constitutional and democratic crisis to go on ignoring a measurable, persistent majority for independence in Scotland, or to introduce new legal parameters that permanently forbid such a question being addressed.

The corresponding need to move pro-independence opinion polls nearer to 60% over a sustained period of time was recognised not long after the 2014 poll by one Nicola Sturgeon. Former Green MSP and land reform campaigner, Andy Wightman, echoed that sentiment at the end of 2022. He argued, with persuasive force, that referendums are best called when the need is to confirm a settled will, rather than as a knife-edge tactic to try to shift opinion one way or the other in a situation (such as we have in Scotland) where it has been divided almost 50:50 for a long time. Despite Brexit, Boris Johnson, and the worsening mess of Westminster, the constitutional question has not shifted significantly in one direction or another over the past eight years. At the time of writing, following the Supreme Court judgement, and in the wake of an unprecedented cost-of-living crisis, the Yes side has been ahead in six opinion polls. But that is still just a fraction of the 35 since 2014.

The core political question for independence forces in Scotland is, therefore, whether and how they can build that steady and ultimately unassailable majority for their cause by persuading substantially more people in Scotland that self-government is the way to go. That in turn poses the further challenge as to whether there really is a solidified and powerful independence movement anymore, whether the SNP – still the dominant mainstream force on this issue – is capable of supporting a movement beyond its own control instincts, and whether an agreed route forward that brings together different factions and tendencies is possible. For those on the left, whatever side of the constitutional question we sit on, such functional political questions are far from unfamiliar. They also matter, because divisions in progressive politics across Scotland intersect unavoidably with constitutional issues, even if we wish they did not.

In theory, Labour’s Gordon Brown Commission proposals, and former senior ‘Yes’ strategist, Stephen Noon’s, conversion to a mixed economy ‘devo max’ alternative to either full-blooded independence or the current devolution settlement, further complexify the picture. However, in practical terms neither has produced anything like a convincing way forward yet, and as Ciaran Martin argues, the present UK settlement is probably near the limits of what can be negotiated by way of further change without fatally undermining its unwritten checks and balances. Borrowing powers for the Scottish Government, plus the ability to enter into certain kinds of international agreement, as proposed by Brown, are also likely to prove difficult to make workable in the absence of wider economic and transactional powers.

Equally, arguments for a United Kingdom settlement giving way to confederalism (voluntary cooperation among sovereign states) presupposes the abandonment of the very union which for some, including the Labour leadership on both sides of the border, is presently non-negotiable. So, the choice between a modified form of devolution and some version of sovereign self-government (insofar as a neo-liberal order allows that) remains the basic format for contestation in the immediate future, and that is precisely where the logjam exists.

The fact that many on the independence side would almost certainly disagree vehemently with the foregoing analysis is indicative of one key aspect of its division: continuing disputes about strategy, accentuated through social media, for which there is no natural forum for resolution. Similarly, there is a strong tension between those who recognise the independence struggle as a long haul one, and those who are impatient with what they see as the paralysis of the last eight years, who sense betrayal in the SNP and its leadership, and who still hold to the possibility of some chimeric Plan B, C, D, E or even Z when confronted with the difficulty of securing the degree of popular support needed to force change from England-dominated political parties at Westminster.

Simultaneously, the pro-independence side is somewhat divided and weakened by ‘culture war’ arguments about sex and gender (which have generated part of the impetus behind Alba, along with Salmond’s ego). It is also divided between those who are ontological nationalists for whom every other political issue is subordinate to independence, and those who see it as the route to a much larger goal: a far more progressive, solidaristic, green and just Scotland. It is difficult to assess either the size of the overall activist independence base or the true scale of these divisions right now. But what seems certain is that flag-waving marches and the perception of vituperative ‘intra-nationalist’ argumentation does little or nothing to attract those sections of the population whose consent and participation is needed to move the terrain towards independence; not least the young, and people in working-class communities who continue to feel betrayed by status quo politics.

Indeed, if Scotland is ever to become self-governing it will be because an increasing number of voters come to see independence as a means to an end, not an end in itself, and to believe that a better future is only really possible with the full political and economic powers it brings. That can only happen if such a constitutional choice becomes much more deeply embedded in the kind of struggle for ‘another Scotland’ which addresses the bread-and-butter issues of economic and social security, health, education, and opportunity. This is the direction in which the ‘Yes’ movement needs to head if it is to succeed, byreframing the independence question based on a fresh offer to the people of Scotland in conscious relation to a clear message about the different nation we wish (and need) to create.

There are three interrelated ways in which this could be pursued. First, grassroots, community and union action (and citizens’ assemblies) could make a ‘People’s Claim of Right’ around a set of unifying demands which would command popular support across a large swathe of the Scottish population, not least the majority whose future is in peril if the neo-liberal hollowing out and asset-stripping of our society continues under Westminster rule and Holyrood timidity. The most obvious things people want are a strong NHS and high-quality public services; an economy that offers decent, secure work and conditions; educational and creative opportunities for all; a sustainable environment for us and our children’s future; and the power to change things locally through more investment and democratic accountability. These are basic demands for a decent society. They are matters which touch people’s everyday lives. They can also help recast the contentious questions of who should run Scotland, whatscale of political control and economic resources are needed make transformational change possible, and where those resources will come from.

Second, and related to this, independence groups need to build alliances with labour movement groups in Scotland, irrespective of initial differences on constitutional matters. If the central concern is, as it should be, a better society and improving lives for ordinary people, the first priority is working politically to make it better, and debating the means to do so.

Third, the leaderships of supposedly progressive but contending political parties need to be challenged strongly in the areas of their characteristic weakness – not least the SNP, in relation to the need for a radical and redistributive use of existing powers, as outlined in December 2022 by the STUC’s tax, land and assets report; and Scottish Labour, in terms of facing the serious limits of devolution for securing any further significant improvements in public services and the economy under the conditions of Westminster hegemony. Every budget at Holyrood should also be framed and debated so as to spell out how existing powers are being used to capacity, and how much more could be done with full powers.

In summary, if a sustainable momentum towards independence in Scotland is going to grow, a tangible bridge needs to be built between the better we are right to be working for in the political here and now, and the far better that becomes possible through a reclaiming, repurposing and redistribution of democracy and economic power across these islands. Whether a re-unified independence movement that can rethink its task politically in this way is possible, and how it will fend off the forces of retrenchment and opposition in so doing, is something that needs careful attention by all involved.

Simon Barrow is director of the politics, ethics and beliefs thinktank, Ekklesia. He is co-editor and co-author of five books on Scottish politics, and national secretary of the SNP Trade Union Group. He writes in a personal capacity.