Last week, The Independent reported that David Cameron’s Government had agreed with a House of Lords committee finding that referendums “cannot be legally binding in the UK, and are therefore advisory.”
The rediscovery is a deeply embarrassing one for Theresa May because it gives a hint of the direction her predecessor’s government would have taken if it had lost the Scottish independence referendum in 2014.
Scottish First Minister Nicola Sturgeon is doing just that, declaring at the SNP’s party conference last week that she intends to push ahead with plans for a second independence referendum.
Sturgeon cited as her reason the descent into a ‘hard’ Brexit – the removal of the UK from the EU single market, immigration kerbs and support for the Great Repeal Bill (the incorporation of existing EU law into British law) – as an unfavourable and undemocratic outcome for Scotland.
She has a point. 62 percent of Scots voted to Remain compared to the 52 percent in England who opted to Leave.
Despite this, there has been scant evidence of any increased support for independence in the aftermath of the EU vote. A YouGov poll of more than 1,000 Scots found that 46 percent of respondents would vote for Scottish independence, while 54 percent wanted to remain in the UK (a change of 1 percent in favour of independence since the original result of 45 percent Yes and 55 percent No).
So is the Union, as Foreign Secretary Boris Johnson himself pondered, at risk from Brexit?
Firstly, posturing from all sides is bluster given that Article 50 hasn’t even been triggered yet.
Secondly, there is no widespread appetite for a second Scottish referendum beyond SNP supporters and no legal basis for it anyway. Only Westminster has the power to legislate on domestic referenda, and if Sturgeon proceeded with an unofficial one, it would be non-binding as happened with the 2014 Catalonia self-determination vote.
Thirdly, Sturgeon representing Scotland unilaterally in international relations is a clear violation of the 1998 Scotland Act which guarantees devolved areas like health and education to Scotland and reserves areas like foreign policy to the UK Government.
If Sturgeon doesn’t have the legal legitimacy to represent Scotland or to hold another referendum then her actions those of a paternalist who thinks she knows better.
Announcing that her government is setting up a ‘Scottish Office’ in Berlin to promote trade is treading the thin line between promoting Scotland and negotiating foreign affairs.
Nevertheless, the UK Government needs to be careful it does not become strident and needlessly antagonise nationalists. Scotland Secretary David Mundell and his Northern Irish and Welsh counterparts have already been told they will be asked only to attend meetings of the European Union Exit and Trade Committee “as required”, fuelling the ire of the Scottish Government that they are being excluded from negotiations.
Brexit storms on. While the Prime Minister has conceded that Parliament will get a vote on whatever post-Article 50 deal she secures for the UK, it won’t get a vote on whether to leave the EU itself. This will inevitably aid the SNP’s position, and in this case quite rightly.
As Harold Macmillan once said, the union between Scotland and England is of the wedding band, not of handcuff.
All parties should remember this in the months and years ahead.