Independence will only happen if we’re prepared to break some rules

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Commentary by Christopher Silver

It should come as no surprise that the UK Government has all but ruled out granting the Scottish Parliament the ability to hold a second binding referendum on independence.

It is worth being candid about the political realities that underpin this refusal. Events have swept across these isles and the world to the extent that the affairs of Scotland are easily overlooked. Scotland does not matter. It is still a nation that asks for permission.

Christopher Silver
Christopher Silver

But while we should expect no different – because there is almost no political scenario in which it would make sense for a Tory government to allow such a vote – we should also see this moment as an opportunity.

It may be tough for advocates of independence to stomach, but while the European question has decisively shifted the moral aspect of the debate away from the case for Union, in hard political terms, the ground is not shifting.

The collapse of British politics

Scotland’s constitutional status, as the Supreme Court helpfully reminded us recently, is governed by political conventions. In constitutional terms, the concept of “the Scottish people” is no more relevant than the concept of “the Warwickshire people”.

The conviction that Scotland is a nation and therefore ought to have its voice respected is just another political argument between two competing nationalisms.

As the Supreme Court justices pointed out, the lack of a solid constitutional foundation for devolution means that political concerns govern the relationship between Westminster and the devolved governments.

The Union has always operated on this basis. But this time, things are different: British politics has imploded and has largely ceased to function. A shift in the polls on independence might deliver a slew of concessions to Scotland on Brexit, but it would make a second binding referendum even less likely.

As a result, the only scenario through which a second referendum could be realistically enabled would be the 2020 election resulting in a hung parliament at Westminster. Given that the Tory’s new found British nationalism tethers them to preservation of the Union at all costs, and given the dire prospects for a divided and ineffectual Labour Party at the ballot box, such an outcome does not seem feasible.

At the same time, the risks associated with a non-binding Catalonia-style vote should not be underestimated: such plebiscites are easily boycotted and the results even more easily dismissed by intransigent central governments.

The Scottish Government may gain some minor concessions from the UK, but its demand for Single Market Access would undermine the Brexit project as effectively as independence.  In all of this, the only power that it the SNP can call upon, in theory, is the notion that the Scottish people might clamour to man the lifeboats as the sinking hulk of HMS Britannia goes down.

A new era

This is a high risk strategy. Then again, it’s problematic to link any issue too closely to demands for a referendum: they are blunt instruments that aim to solve complex issues with a binary choice. Strategically, the focus on a second referendum remains a major weak point. But there is an alternative.

In political terms, Scotland, the UK, and the world have all changed beyond recognition since 2014. Only two years ago the events of 2016 would have seemed an absurd fantasy. Today, amidst the onrush of such frantic change, all the old rules are being broken and politics has to shift gear.

In Scotland, which has an old habit of working to its own time-signature regardless of what’s going on in the wider world, politicians are still nervously working out how to frame these events to fit the unresolved national question.

The one point of certainty is an understanding that this fundamentally different new political era makes most of the 2014 debate obsolete.

Better Together’s central strategy – to deny the entire premise of a binary choice between two nationalisms and two deeply contrasting narratives – is now dust.

But if we’re honest, another casualty is the Yes campaign’s breezy notion that all will be well once negotiations and economic realities kick in after independence. Such affirmations ring hollow as UK Government ministers repeat them ad infinitum in the context of Brexit and impending talks with the EU.

Alternative strategies

The point here is simple – independence has to be a self-conscious response to this new world we now inhabit, not a promise that it can somehow be escaped from.

This is why Scotland’s movement for self-determination desperately needs additional measures it can place on the table, other than a potential plebiscite.

The alternative to a referendum-centric approach is to take tangible steps to test the limits of union. To demonstrate, in the eyes of undecided Scots and a Europe that increasingly recognises our distinct politics, that certain Brexit measures will not stand.

In one sense this involves far more radical steps than focusing on calls for another referendum. Yet it is also precisely the inverse of what Brexit has become. It doesn’t retrofit a partisan agenda onto a vote that has already occurred, but instead builds a solution from the ground up.

Potential red lines on Brexit are fast approaching: next week, when the SNP’s amendment to the Article 50 Bill protecting the status EU nationals is voted down, Scotland’s resolve to remain European will face its first big test.

In response, the First Minister could offer her own commitment that all EU nationals resident in Scotland will have their rights to live, love and work here guaranteed. The hurdles to achieving such a measure would be immense, but not insurmountable. This would send a clear message to London and Brussels that a differential settlement for Scotland will happen regardless.

Would Nicola Sturgeon contemplate a direct resistance to Brexit policies?
Would Nicola Sturgeon contemplate a direct resistance to Brexit policies?

There are a range of other measures where Holyrood could vote in favour of non-cooperation with Brexit policy. For example, if Donald Trump’s government manages to strike some desperate UK trade-deal over the coming years, the Scottish Government could lead a boycott.

In America the “sanctuary cities” have offered an inspirational example of how sub-national government can be a bastion of resistance. Like the governors that turned out to push back against the Muslim ban last weekend, the mayors of several large cities have already made clear that the damage created by cooperating with the federal government on immigration is too great to justify. The Scottish Government, allied with other devolved administrators and the great English cities, should consider a similar approach.

Scotland has its own traditions in this regard, such as the local authorities who defied UK government policy on South Africa in the 1980s. Perhaps devolution has helped foster a mentality that waits for power to be handed down. But in an age of rule breaking, it becomes dangerous to always seem patient and well behaved.

A clear mandate

The idea that Scotland must hope instead for a moment of benevolence from a radical right-wing Tory government is an absurd proposition. They are intent on remaking the country in the image of their own toxic brand of nationalism. Awful as the intent might be, there is a boldness to it that cannot be denied. Britain is either great, or it is nothing: this is an existential moment for these people. If Scotland is not equally bold in turn, it may well be swallowed up in the wake of this insane project.

A full scale refusal across every autonomous Scottish institution to participate in the implementation of Brexit already has a clear mandate. It must now be openly considered. The threat of a constitutional crisis, and with it the entire viability of the devolution settlement itself, is a far more direct challenge to the UK Government’s authority than demands for an elusive second referendum.

If the approach seems too disruptive, just consider the backdrop: in both Britain and the USA new regimes and agendas seem intent on fragmenting their societies in a fit of nationalist self-regard. Trump and May’s governments were faced with looming constitutional crises the moment they gained power.

Their shrill, caustic, brand of nationalism is colliding with constitutional norms, a factor which just happens to threaten the viability of the unions that their me-first nationalisms cherish above all else.

Disruption is taking place regardless

These processes have thrown the equilibrium of mainstream politics dramatically off-balance. Old two-party systems are revealing themselves to be unfit for purpose in a new political era in which all rules are being rapidly re-written.

The pace of this change is daunting. But it does have one central advantage. The link between Brexit and Trump also provides a weak link – we’ve already seen Theresa May come under enormous pressure to distance herself from Trump, the great saviour who will scoop up the castaway UK in his clammy paws.

The state visit, if it goes ahead, looks set to be the biggest moment of anti-Government protest in the UK since Iraq.

When so many red-lines are crossed in politics there is no middle way to navigate. This is why Scotland will not matter until it takes a side in the wider struggle, by resolving to make its own rules. At a time when many of the norms that we’ve lived by may well be destroyed, this task could be a necessity, rather than an option.