INDYREF2: MUCH TO DO?

Indyref2 remains in the long grass, having been kicked there last year after Theresa May turned down Nicola Sturgeon’s request for another referendum. However, this autumn, questions about if and when a second vote might happen will come back to the fore. What can be said about how Westminster might react to another referendum request, and when a vote could plausibly happen?

After the 2011 election, when the SNP won an absolute majority at Holyrood, it had an unambiguous mandate for a referendum on independence for Scotland. This was immediately accepted by the government in Westminster and negotiations over the details were conducted in a spirit of cooperation and mutual understanding. Both sides acknowledged that the 2014 referendum would decide the matter for a generation.

The SNP’s manifesto for the 2016 Holyrood election left open the possibility of a second referendum “if there is clear and sustained evidence that independence has become the preferred option of a majority of the Scottish people – or if there is a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against our will.” However, during the campaign, Nicola Sturgeon repeatedly insisted that public opinion would be the deciding factor, and the SNP now relies on the votes of Green MSPs, whose own manifesto said: “If a new referendum is to happen, it should come about by the will of the people”. The SNP therefore has a much weaker mandate for a second referendum then it did for the first.

Sturgeon has promised to make a decision on a second referendum in autumn 2018, by when there will be only 6 months left before the UK leaves the EU in March 2019. Scotland might theoretically be able to remain in the EU if a special deal with the EU could be agreed, contingent on a subsequent vote for independence. However, the chances of such an agreement against the backdrop of the Spain/Catalonia imbroglio, are remote.

Even if a swift referendum could somehow be organised inside 6 months, Scotland, if it voted for independence, would still not be a separate state for perhaps another two years, as it negotiated itself free of UK. So, realistically, Scotland must contemplate independence followed by negotiating its way into the EU, not remaining within it.

A request for a second referendum made this autumn is very likely to be rejected on the same grounds as in 2017. Indeed, it will be easier for Westminster to turn it down a second time. The first refusal did not generate the public outrage that Sturgeon must have anticipated, and the potency of a Westminster rebuff can only decline if the question is asked again so soon, and in similar circumstances. Spain’s uncompromising attitude to recent Catalonian demands makes the UK’s handling of the 2014 referendum look extraordinarily accommodating, and could stiffen Westminster resolve. Especially since allowing Scotland a second independence referendum would embolden those pushing for a second referendum on membership of the EU.

For the sake of argument, let us assume that Westminster does acquiesce to a second referendum on independence for Scotland.

When would be the earliest practical date that a vote could take place?

The timing can be estimated with reference to what happened during preparations for the 2014 referendum. There were five  distinct stages, and these stages would have to play out again before a second vote could happen.

1. Negotiate the Edinburgh Agreement 2
   Elements of what was negotiated in 2012, a process which lasted 8 month (February – October), will now be uncontentious, and could be copied into a new agreement without fuss. However, difficult sticking points are inevitable. Disagreement over the wording of the question is very likely (yes/no vs remain/leave). Westminster might insist on a supermajority for independence in a second referendum held so soon after the first, which would be very controversial. Negotiations would be taking place in much more acrimonious circumstances than the benign atmosphere of 2012. All in all, an Edinburgh Agreement 2 might take less than 8 months, but not much less.


2. The Section 30 process in both Parliaments
   This ends with an ‘Order in Council’ giving the Scottish Parliament the power to hold a referendum on the terms agreed in the Edinburgh Agreement 2. The process in Westminster, and possibly the Scottish Parliament, would be contending with EU legislation, so there will be a ready excuse (indeed a genuine reason) for slower progress than in 2012/2013, when it took 4 months (October 2012 – February 2013).


3. The Scottish Parliament must pass a Referendum Act
   The Scottish Independence Referendum Act 2013 received Royal Assent in December 2013, having been introduced at Holyrood in March 2013. This 10 month period was preceded by some pre-bill consultation which overlapped with the Section 30 process.


4. The Electoral Commission preparation
   The Commission needs additional time (around one month) between the Regerendum Act and commencement of the referendum period.


5. The Referendum Period
   The Electoral Commission recommends a minimum referendum period of 16 weeks, which is what happened in 2014. Legally, it can be less than 16 weeks, but not less than 10 weeks.

Adding up stages (1.) through (5.) gives a total timescale of 27 months.

It would be just about possible to achieve a referendum vote in September 2020 if the time taken to negotiate a second Edinburgh Agreement could be cut from 8 to 4 months. But any delays to that ambitious timetable and the campaign slips into winter, which would not be popular with voters or politicians. September 2020 is effectively the last practical date for a second referendum before the Holyrood election in May 2021 intervenes.

With thanks to Nigel Smith for his help in preparing this briefing.