As we edge closer to key Brexit votes in the House of Commons, the First Minister of Scotland Nicola Sturgeon has announced that she will make a statement on a Scottish independence referendum in the coming weeks.
It remains the SNP’s policy to hold a referendum on independence “when the terms of Brexit become known”, and the Scottish Parliament voted by majority to back that position.
The opportunity trigger for an independence referendum therefore remains the endorsement of a Brexit deal, or the confirmation of no deal by the House of Commons.
As the likely outcomes in the Brexit process narrow, there are few now left on the table which would not prompt the SNP to demand the people of Scotland be given a choice between independence and remaining in a different UK to the one they chose to remain part of in 2014.
There is only one potential outcome in the House of Commons votes later this month that may give the First Minister pause for thought – the extension of negotiations. However, Nicola Sturgeon’s red lines have been drawn hard. Single Market and Customs Union membership for Scotland – nothing less will do. It is unlikely in the extreme that the Prime Minister would pursue such an arrangement in negotiations with the EU, and so extension of the negotiations is an outcome that will achieve little more than a stay of execution over the decision to pursue a referendum on independence.
What happens after that?
The First Minister must request the legal right to hold a referendum on independence, and Westminster must agree what’s called a Section 30 Order to allow the Scottish Parliament to legally proceed with a referendum.
In theory, if an Order was granted, a period of negotiation between the Scottish and UK Governments to agree the exact terms of the referendum would then follow, and the referendum would need to be legislated for in the Scottish Parliament. In 2014, that process took some two years, but recent analysis by a research institute in Scotland suggested the whole process could be expedited to around nine months – which would suggest the earliest possible date for an independence referendum would be late 2019 / early 2020.
However, the SNP fully expect any request for the power to hold a referendum to be rejected as long as Theresa May is Prime Minister. Theresa May famously refused to grant a Section 30 Order when it was last requested in 2016. At that time, ‘now is not the time’ was the response. It is difficult to see how Theresa May could have changed her view since then – now, probably, still isn’t the time. In point of fact, the Prime Minister’s obstinacy on this point is rooted as much in deeply-held personal and political objections, as well as practical ones.
The real strategic consideration for the SNP leadership is therefore what to do when Westminster simply says ‘no’. It’s a curious and niche point of constitutional interest that sovereignty in Scotland is said to lie with the people, rather than with Parliament, as is the case in England.
The crux of the SNP’s strategy to manoeuvre Westminster over the right to hold a referendum is therefore to win a popular mandate from the Scottish people for a referendum to be held. That results in the next Scottish Parliament election becoming a referendum on a referendum. That is currently scheduled to take place in 2021, but the timing will depend on the strength of the SNP leadership’s desire for a swift referendum and the pressures of the independence movement.
The coming weeks will bring added complication to the Brexit debate, and an escalation of the rhetoric from north of the border. There will be a concerted effort, and it may even feel true at times, to portray a referendum on Scottish independence as a matter of ‘when’ and not ‘if’. However, in a not dissimilar parallel to the UK’s leaving the EU, the words ‘there will be a referendum on Scottish independence’ will only be true when an agreement for exactly that is reached.