BY RYAN ATTARD –
Last Saturday evening, Prime Minister Boris Johnson wrote to Nicola Sturgeon with congratulations on her anticipated re-appointment as Scottish First Minister. He also asked Sturgeon to meet with him in an effort to resolve COVID-19-related issues throughout the United Kingdom (UK). Johnson’s letter highlights fear at Westminster for an impending constitutional crisis over the Scottish Parliament’s power to hold another independence referendum, with recent polls suggesting a close result. While Sturgeon’s Scottish National Party (SNP) failed to win an outright majority, pro-independence parties remain in control at Holyrood. This raises the prospect of a court challenge before the UK Supreme Court which may do further harm to the state of the union and cause what many consider irreparable damage.
ELECTION OVERVIEW
The Scottish election was part of the largest vote held in the UK outside of a general election since 1973 with 48 million people able to vote. This included elections for the devolved parliaments in Wales and Scotland, 145 councils in England, 13 mayoralties, 39 police and crime commissioners, and a hotly contested by-election for the red-wall constituency of Hartlepool. These elections were also the first major check on Boris Johnson’s performance as Prime Minister since the December 2019 general election due to the cancellation of the 2020 council elections because of the COVID-19 pandemic.
The results painted a picture of a UK that has diverse politics which has significantly shifted over the last two decades. This was evident in the English seat of Hartlepool. Since its creation in 1974, Hartlepool has always returned a Labour MP. However, Labour’s fortune has greatly changed over the past four years with the Conservatives gaining the seat. At the 2017 election, former MP Mike Hill was returned with a majority of 7,650 votes. This was reduced to 3,595 votes at the 2019 election. Now, Conservative candidate Jill Mortimer won the seat with a 6,940-vote majority, winning 51.9% of the vote.
The Conservatives were also treated to other electoral success in England, gaining control of a further 13 councils and 235 councillors. This diametrically opposed trends at local council elections in which the government tends to lose seats and the opposition gains them. Labour instead lost control of eight councils and 326 council seats.
Labour did not have a completely abysmal election, retaining the London mayoralty and gaining three mayoralties from the Conservatives. Their biggest success came in the Senedd (Welsh Parliament) election, with Labour increasing their vote by approximately 5% and increasing their seat count by one. This continues Labour’s dominance of Wales since the Senedd’s establishment in 1999.
These results are important when considering the Scottish election results which contrast the two-party domination of England and Wales. The elections for the 129-seat parliament saw the SNP win 64 seats, up one seat but also one seat short of a majority. However, when combining the seats won by the SNP and the Scottish Greens (eight seats), pro-independence parties have a 17-seat majority, up from a previous 9-seat majority. This makes Holyrood the only devolved parliament with a pro-independence majority, noting that the Northern Irish Assembly (Stormont) has neither a unionist or nationalist majority.
LOOMING CONSTITUTIONAL CRISIS
In their election manifesto, the SNP pledged to seek an independence referendum to be held as soon as “the COVID crisis is over”. After the election results were declared, the First Minister reiterated her party’s pledge to hold a referendum at a time “decided by a simple majority of MSPs in the Scottish Parliament.”
“Given the outcome of this election, there is simply no democratic justification whatsoever for Boris Johnson or anyone else seeking to block the right of the people of Scotland to choose our future.”
Nicola Sturgeon
8 May 2021
While pro-independence parties hold a majority in the Scottish Parliament, power to grant independence to Scotland falls under the constitutional framework of the United Kingdom and is subject to parliamentary sovereignty. This means the Westminster Parliament holds authority to make the referendum binding and the results enforceable, not Holyrood. This was reiterated by Lord Wallace, former Advocate-General for Scotland, who warned in 2012 of illegality over a vote not authorised by the Westminster Parliament. However, this issue was avoided with the Edinburgh Agreement (2012) in which both the British Government and Scottish Government agreed to respect the results of the 2014 independence referendum.
While the British Government acquiesced to the SNP’s demands for an independence referendum in 2014, the Johnson Government has made intentions of opposition to a second independence referendum clear, arguing the 2014 referendum was “once in a generation”. This may result in the governments in Edinburgh and London having similar issues as their Spanish counterparts in Barcelona and Madrid. This is in reference to the 2017 Catalan independence referendum which saw 92% of voters support secession, with the Spanish Constitutional Court subsequently deeming the vote illegal. As a further consequence, direct rule of Catalonia was re-imposed under Article 155 of the Spanish Constitution.
Publicly and in their actions, the SNP do not seem to be fearful of similar events occurring within the UK, with the Scottish Government having published the Draft Independence Referendum Bill on 22 March, 45 days before the election. This legislation includes provisions for the date of the referendum, question and form of the ballot paper, and eligible voters. This follows the passage of the Referendums (Scotland) Act 2020 on 19 December 2019 which set out a framework for the administration of referendums in Scotland. This places the Scottish Government in a position to move ahead with a referendum once the worst of the pandemic is over, regardless of Westminster’s position.
In the event of a pro-independence result in a referendum not supported by Westminster, Holyrood may seek to declare unilateral independence outside of British constitutional restraints. This would be in a similar manner to the declaration of Kosovo independence in 2008 during which the Assembly of Kosovo unilaterally seceded from Serbia. The International Court of Justice (ICJ) in an advisory opinion determined the declaration did not violate general international law. This is because international law does not directly prohibit declarations of independence and Kosovo’s declaration did not breach UN Security Council Resolution 1244 (1999) which established the UN Interim Administration Mission in Kosovo. It did, however, breach the Eighth Article of the Constitution of the Republic of Serbia, making it unconstitutional under Serbian law. The Kosovo argument also raises the rights of all people to self-determination as enshrined in the United Nations Charter and other international agreements along with scholarly interpretation that this permits secession.
While Scotland may attempt to seek international support and recognition in the event of a referendum, there is no international law which directly sanctions unilateral declarations of independence. The ICJ did not directly answer whether this was permitted, deliberating that it was outside of their scope as they instead focused on analysis of UNSC Res 1244 and constitutional restraints. This means ambiguity remains under international law whether Scotland can secede. Nevertheless, this does not seem to stop the SNP from seeking a referendum.
WHAT’S NEXT
The end of the pandemic will not reprieve the British Government from challenges to the Union. Enlivened by results on Super Thursday, the SNP seems to be pushing forward with IndyRef2 at any cost. The basis is now formed for the governments in London and Edinburgh to have legal battle in the UK Supreme Court, which may further harm the integrity of the Union while also raising issues for other secessionist movements around the world.
