It’s time for Westminster to take on the SNP

There will not be a legally binding referendum on Scottish independence next year. It’s important to bear this in mind when chewing over Nicola Sturgeon’s latest pronouncement. The SNP leader held a press conference on Tuesday morning to publish a paper on independence in advance of a plebiscite Sturgeon says will be held in 2023.

She claims a mandate for such a vote from the 2021 Scottish Parliament election, in which the SNP and Greens ran on pro-referendum manifestos and won a majority of seats between them. This is the same Sturgeon who, asked during that campaign what a voter who backed her for First Minister but didn’t want another referendum should do, replied: ‘They should vote for me on Thursday, safe in the knowledge that getting us through this crisis is my priority.’ More to the point, the Union is reserved to Westminster, not devolved to Holyrood. It is a logical and constitutional absurdity to claim that a mandate can be obtained at an election to one parliament for the exercise of powers held by another parliament.

Westminster has not sanctioned a referendum but the SNP maintains it would be lawful, though the details are fuzzy. Glasgow University law professor Adam Tomkins has previously flagged up the Supreme Court’s robust interpretation of Section 28(7) of the Scotland Act, which says the UK Parliament retains ‘the power… to make laws for Scotland’. The legal scholar argued that any Holyrood Bill on independence ‘would surely be struck down’.

Is there a way to hold a referendum without a Section 30 Order (the legislative go-ahead from Westminster) and not fall foul of 28(7)? My layman’s brain pipes up: sure, Holyrood could just legislate for a non-binding referendum and, if the Leave side wins, wield it as a moral cudgel against Westminster. Assuming ministers took fright and rushed to make concessions — because of course they would — this little stunt could net the separatists an official referendum or another Union-enervating devolution of powers. Either way, the campaign to abolish the United Kingdom would score a major victory.

Why does it have to be this way? Labour promised that devolution would mean ‘the Union will be strengthened and the threat of separatism removed’. Why is the SNP allowed to use the institutions of devolution — UK institutions — to advance its anti-British crusade? Why is the UK government willing to risk a shock adverse outcome at the Supreme Court or the embarrassment of being outmanoeuvred with a non-binding plebiscite? Why does Britain allow its future to constantly hang in the balance in a way that no other sovereign country would?

Well, for one, the Prime Minister prefers to avoid Scotland, in the apparent belief that benign neglect is a substitute for leadership — or is, in fact, benign. More generally, ministers are paralysed by the devocrat creed that says Westminster must always bend over backwards to avoid upsetting Holyrood. This has proved disastrous for Scotland. The SNP is guaranteed victory in every election because it enjoys the dutiful support of the 40 per cent or so who make up the pro-independence core vote and believe freedom is just around the corner. Elections in Scotland are not judgements on how the Scottish or UK governments are performing but polls of competing constitutional identities.

Safe from scrutiny, the Scottish government has presided over dismal outcomes in health, education, the economy, transport, public procurement, rural affairs and in its handling of the pandemic. A parliament set up to make decision-making more responsive to people in Scotland has enabled one of the most insulated, opaque and under-scrutinised governments in western Europe. Devolution has brought Scotland bad government, lamentable outcomes and no hope of change until the constitutional question is resolved. Poor children will continue to lag behind, the quality of Scottish education will decline further, all the SNP’s ‘legally binding’ NHS targets will go unmet. The never-ending uncertainty about Scotland’s constitutional future will deter investors and further entrench the new political sectarianism of nationalism versus Unionism.

There is a way to bring this to an end. Unfortunately, it would require some backbone, a quality not in abundance in Downing Street. The SNP’s iron grip on Scottish politics depends on the transaction: vote SNP, get independence. If that transaction was shown to be fraudulent or unfounded, the SNP would struggle to trade on its brand as the party of Yes. And with that brand tarnished, you could expect the party’s various internecine battlelines — left vs right, trans rights activists vs feminists, climate gradualists vs fundamentalists — to sharpen and divide the organisation from top to bottom.

How could Westminster encourage this? By reforming devolution to strengthen the Union and prevent its institutions being misused to pursue the break-up of the UK. There are various ways to go about this. My proposal is for a new Act of Union that reasserts the UK as a unitary state in which the Crown-in-Westminster is sovereign; revokes the permanence of the Scottish Parliament and reserves certain devolved powers (elections, referendums, local government) to Westminster; and prohibits the use of Scottish parliamentary or governmental resources in relation to independence or other reserved matters.

Alternatively, Professor Tomkins has made his own suggestions, such as clarifying the circumstances under which a referendum may be held and creating a legal duty for public bodies to work in the interests of the Union. Jack Straw previously advocated going even further and legislating to make the Union permanent, as is the case in the United States, Spain, Australia and India, to name a few. On the other, less ambitious end of the scale, parliament could simply amend the Scotland Act to state: ‘The power to conduct referendums or similar devices on constitutional or other reserved matters is reserved to the UK Parliament.’

But wouldn’t the SNP call it a power grab? They call everything the UK government does a power grab. Where has falling over themselves to avoid the impression of a power grab gotten ministers so far?

But wouldn’t there be protests? Civil disobedience? Of course there would. Destroying the Union is what these people live for. Making that more difficult would hardly go down well with them.

But wouldn’t it make the UK government hugely unpopular in Scotland? Have you consulted an opinion poll lately? It is because the Prime Minister is so unpopular in Scotland that he could afford to do this.

The real obstacle to devolution reform is not the inevitable backlash but the willingness of UK ministers to ride it out. To set a course, stiffen their spines and refuse to U-turn. In the end, it is a question of belief. The Nationalists believe in their country and will do almost anything to redeem its independence. Do UK government ministers believe enough in their country to make the reforms necessary for its future?