SPEECH
2 November 2022
Towards What? The Future of Scotland’s Independence Debate
Speech by Anthony Salamone, Managing Director of European Merchants, on the outlook for the Scottish independence debate
Anthony Salamone
© 2022 European Merchants
Anthony Salamone FRSA is Managing Director of European Merchants
Organisational information about this speech is available on its original event listing
Contents
Introduction
For better or worse, the question of independence is such an intrinsic part of daily politics in Scotland that we often view it, I find, mostly in terms of the quotidian twists and turns. In so doing, we can easily become absorbed by the latest political machinations of one party or another and, in consequence, not take a more strategic perspective on where our politics and wider society are going – or not going – when it comes to our constitutional future.
Nevertheless, I find it prudent, if not essential, to assume that wider vantage point and to assess where we are headed or not headed. Today, I will endeavour to do so from my perspective – from the European Merchants perspective – as a political scientist who has studied the independence debate and its evolution over a number of years.
My first observation, and I believe that it is important to be clear about this, is that the political course which we are currently on, when it comes to the issue of independence, was not inevitable. It was the product of choices by the, now various, political leaderships of the UK Government and the Scottish Government. Alternatives could have been possible but, for various reasons, were not pursued.
Second, it is imperative to acknowledge the polarised, verging on bitter, nature of Scottish politics today. This polarisation is focalised around the independence debate, but it spreads beyond it. It is bad and it is getting worse. It is unhealthy and unbecoming. It is contrary to the collective spirit which the renewed Scottish Parliament was supposed to embody – less-partisan, consensus-driven policy making – which still manifests itself from time to time, but only on occasion.
Third, it is, at this point, remarkable how extensively the issue of independence now influences or governs the landscape of ordinary politics and policy. These days, nearly every matter in politics is framed, in some measure and by both sides, by the constitution. Yet, we know that at least some policies and decisions have little or nothing to do with independence in practice. Regardless of our opinions on independence, it should concern us that everyday policy-making and constitutional politics are becoming fused.
Against those three background observations, we can, in my view, survey the state of the independence debate today. We can begin to assess where we are going or not going. We can offer an answer to the simple, yet foundational, question of “Towards what?” when it comes to the conversation on our constitutional future.
I will survey the debate today by analysing five core dimensions: (1) the Scottish Government’s current independence referendum strategy, (2) the Lord Advocate’s reference to the Supreme Court, (3) the Scottish Government’s revised independence prospectus, (4) the role of the international community and (5) the function of the European Union in the debate. I will take each in order.
1 : Referendum Strategy
First, the Scottish Government’s referendum strategy. To my mind, it is assistive to consider the Government’s approach as a strategy. Doing so allows us to recognise, to my first initial observation, that the course which the Government has in recent months set on this matter was a deliberate choice, not a happenstance of events. The clearest observation of this strategy is its departure from the repetition – what I have called the holding pattern – of the long-running political dispute over whether to hold a new referendum. Those two points are crucial to note: we are speaking of a dispute, and a political dispute at that. We know this dispute; it has, until recently, been the same since March 2017. The Scottish Government wants a referendum; the UK Government does not. To emphasise the point, it is a political, intergovernmental dispute.
Accordingly, the referendum strategy, which I will say is centred around Nicola Sturgeon’s speech to the Scottish Parliament at the end of June outlining her referendum plans, marks a substantial departure from the holding pattern which defined the debate. At the same time, however, the underlying dispute remains fairly constant.
In other work, I identify five principal elements of the strategy: (1) the draft bill for a referendum, including the proposed referendum date (2) the Supreme Court reference (technically not a government action, but the Scottish Government did seek it, wanted it to happen and in effect facilitated it), (3) the new prospectus for independence, (4) perfunctory engagement with the UK Government and (5) the de facto referendum pledge.
Evidently, this strategy is multifaceted. Compared to what came before it, it is bold. To repeat myself, because I believe that it is warranted, it is intentional. The Scottish Government could have taken other paths. For instance, it could have devoted greater time and effort to establishing a more constructive relationship with the UK Government – generally and on the referendum issue. Plainly, producing this draft bill was its own creation and its own choice. So too was to ask the Lord Advocate to use a never-before-exercised power to refer a “devolution issue”, as defined, to the Supreme Court. So too was setting an apparent date for the referendum that, less than a year out, we still do not know whether will actually happen.
The Scottish Government was not obliged or compelled to take any of these actions in relation to the independence debate at the time or in the manner which they have been taken. If the Government does not, in the end, succeed in its stated goal of holding a viable referendum in the near future, many will undoubtedly question the voluntary strategy that it chose to adopt.
That strategy has two particularly striking features. The first is its majoritarian nature. That aspect is in fact the boldest element of the entire strategy – even more than fixing a date for a referendum which the Government itself does not know if it will hold. How so? The Scottish Government declares that it won the last Holyrood election (which the SNP did, with a plurality, not a majority of seats); that a pro-referendum majority exists in the Scottish Parliament (which it does, between the SNP and Greens – though, incidentally, their “cooperation agreement” change nothing on that front); and that the SNP and the Scottish Greens pledged during that election campaign to hold a referendum in the now current parliamentary term (which they did). The synthesis is that a vote should happen soon, apparently regardless of the wider circumstances. Anything less is a “denial of democracy”, they say.
That approach is majoritarian instead of consensual. It is on the order of: we won; we have a majority; everything else does not matter, including the opinions of others. The question which I put to the pursuers of such an approach is this: How is a majoritarian strategy compatible with considering foundational constitutional change and then ensuring harmonious acceptance of any outcome?
We can compare this deliberate majoritarian approach with either general principles of good governance or the evident precedent of the previous referendum. In my most recent article in Political Courant, our analytical magazine, I say that a bona fide referendum should satisfy three tests: (1) consensus within the Scottish Parliament (so within mainstream Scottish politics) and between the Scottish and UK Governments on holding the referendum, (2) agreement in advance to implement the outcome (especially if the result is in favour of independence) and (3) widespread voter participation (namely, no major boycotts or mass abstentions). A mutually-acceptable legal basis is beneficial but, if these three tests are satisfied, the legal basis will flow from the consensus in place.
To note, I use the term “bona fide independence referendum” to mean a vote that offers a viable pathway to what I call “effective independence”. I define the latter as: “the establishment of a sovereign Scottish state with full powers and widespread (if not universal) international recognition.”
How does the Scottish Government’s majoritarian referendum strategy fare against these three tests? It is on course to fail them all. We have no consensus in Scottish politics on whether or when a new referendum should be held; only pro-independence parties support a referendum. The Scottish and UK Governments remain in dispute on the issue. In the Supreme Court case, the Scottish Government conceded that no agreement exists, and none is likely to exist under present conditions, to implement its desired referendum. It is possible, if not likely, that political parties and voters will boycott that intended referendum so as to render it rather meaningless. In my Political Courant article, I call that an “empty referendum”. The question which I put to advocates of that approach is this: Why would you actively seek an empty referendum when your goal is presumably effective independence?
How does the Scottish Government’s majoritarian referendum strategy compare against the precedent of the previous vote? The contrast is stark and revealing. We had political consensus, even if not common enthusiasm, in the Scottish Parliament for the 2014 referendum. The Scottish and UK Governments were in agreement on holding the referendum. They concluded the well-known Edinburgh Agreement, which included a commitment to respect the outcome. The fabled Section 30 Order, in tandem with Scottish Parliament legislation, provided a legal basis for the referendum. In short, the legal means flowed from the political consensus. All mainstream political parties participated in the campaign and, as we know, voter turnout was 85%. In truth, the referendum strategy that the Scottish Government now pursues appears as the inverse of the consensus-based foundation for the 2014 referendum.
We can debate the differing interpretations of Scottish democracy and sovereignty which underpin the disputes within Scotland between the Scottish and UK Governments over holding a new referendum. Those are important questions, but that is for another time. For our purposes, it is evident that the Scottish Government’s majoritarian approach is not in keeping with the principles for a meaningful referendum or with the precedent of the 2014 referendum. My conclusion is that a majoritarian approach, while perfectly legitimate in a democratic system in respect of elections, governing and even in a referendum itself, is not appropriate for establishing a foundation for considering profound constitutional change. The pitfalls are manifest and decisive.
The second striking feature of the referendum strategy is its unilateral approach. The entire purpose of the strategy appears to be to establish a viable pathway to independence without the involvement of the UK Government (at least until the latter stages). The Scottish Government’s supposed solution to its dispute with the UK Government is not to resolve the dispute but to bypass the UK Government. If the strategy which I outlined took full effect as hoped by its proponents, the Scottish Government would hold a unilateral referendum, deliver a pro-independence result and then bounce the UK Government into accepting the result, negotiating and taking the necessary measures to make Scotland independent. Each gamble funds the next until either independence is achieved or the game falls apart. It is unsurprising then that, in my work, I call this a “high-risk” strategy. I reiterate, even at the risk of boredom, that this approach was entirely the Scottish Government’s own choice.
In reality, as I have explored in my work, for years, any viable path to independence depends on cooperation between the Scottish and UK Governments at every stage. I am deeply sceptical of the notion that the Scottish Government can successfully engineer a unilateral route to effective independence in the face of either opposition or inaction by the UK Government. Beyond all the principles which I outlined, the measures required to make Scotland into a sovereign state require the proactive participation of the UK Government (and the UK Parliament as relevant) as institutions representing the UK state.
To be clear, my assessment is separate from whether it is morally just or politically wise for the UK Government to oppose a referendum, for that is also for another time. In any event, realities of the matter are not changed by those arguments. The question which I put to the drivers of such an approach is this: How is a high-stakes unilateral strategy based on bypassing the UK Government compatible with offering voters a choice that could lead to effective independence?
2 : Supreme Court Reference
The second dimension is the Lord Advocate’s reference to the Supreme Court. We should confront that reference, including the hearings last month, for what it represents – a failure of politics. The failure of Scottish and UK Governments to solve their referendum dispute. Their inability or reluctance to apply political creativity to a political problem. Their outsourcing of a political dispute to the judiciary. To be clear, I make no comment on the legal decisions or actions of the Lord Advocate. Instead, I remark that the referendum dispute remains political and intergovernmental, and it will undoubtedly persist until the two governments find a resolution themselves.
Indeed, this case does not address whether an independence referendum should happen – the central question at hand. It does not address whether Scotland should be independent. It concerns whether the draft bill for a referendum relates to reserved matters – in other words, whether the Scottish Parliament has the ability to pass such legislation on the basis of its current powers. Yet that question, interesting as it might be, itself embodies the failure of the political system to achieve a consensus-driven solution. As I noted, both in terms of principles of good governance and the precedent of the previous referendum, where political consensus exists, the legal basis follows. The legal basis should be the final aspect of the referendum, not the first. Once again, the Scottish Government’s referendum strategy is the inverse of established principle and practice.
In my Political Courant article, I parse the legal arguments made by the Lord Advocate, the Advocate General and, separately, the SNP. I will not review them for you now, beyond noting that the case hinges on the interpretation of the Scotland Act – for the legal standing to make the reference and the question of whether the draft bill could be within the Scottish Parliament’s legislative competence. In passing, I will also note that the SNP’s submission was rather strange and outlandish. Perhaps that it is why the Lord Advocate never referenced it, to my recollection, during the hearings.
In the same article, I also assess the political questions raised by the Scottish Government’s position that its proposed referendum would be “advisory”, and so apparently would lack legal meaning, and some of the logical consequences of the case. For our purposes, it is essential to dispel four myths which have formed, some by design and some by inference, around the meaning of this case.
The first is the myth that this Supreme Court reference will provide legal certainty for a unilateral referendum. First of all, at this point, we do not even know if the Supreme Court will answer the Lord Advocate’s question. Her standing to make the reference under Schedule 6 to the Scotland Act is contested by the UK Government, and much of the hearings was in fact dedicated to that point. Even if the Court can and does answer the question, that question is a point of law – an interpretation of the Scotland Act at one point in time. If the bill is actually introduced and passed by the Scottish Parliament, it could be challenged in court again. The UK Parliament could change the Scotland Act. This case will not guarantee legal certainty.
The second is the myth that this reference will resolve the referendum dispute. The reality is that both governments maintain their existing positions: the Scottish Government for a referendum and the UK Government against. Nothing about this case will compel either side, and particularly the UK Government, to change its position. I recall my point that either opposition or inaction by the UK state could be fatal to a viable pathway to independence. If the Supreme Court rules that the draft bill would be competent under the Scotland Act, the UK Parliament can change the Scotland Act or the constitution some other way. The UK Government could also do nothing, and frustrate the path to independence in that manner, since its active participation would be required. The Scottish Government’s attempt to conflate this case on a point of law with the political dispute over a referendum sinks in the face of reality.
The third is the myth that the Scottish Government’s “advisory referendum” argument makes sense. Its central contention is that a referendum would have no direct legal effect, in that its result would not automatically make something happen, and so it does not “relate to” reserved matters because it does not do anything to them. They have called this a “non-self-executing referendum” – which, personally, I find rather amusing, as I wonder how much research it took for someone to come up with that. As you know, self-execution and non-self-execution are commonly used in reference to treaties.
I could expound at length on the fallacy of an “advisory referendum”. Suffice it to say, it is possible to have a perfectly “legal” referendum that is fairly meaningless, if the bona fide tests which I mentioned are not met. In other words, this would be an “empty referendum”. The obvious question is this: Why would an advocate of independence want an empty referendum? On the point of legal effects, another question keeps returning to me: If the referendum has no legal consequences, then why does it need legislation? If the sole objective is merely to test public sentiment, why not just conduct a massive opinion poll? In the circumstances, the only logical answer is that the true aim is to have an electoral event with legal force to serve as the foundation for independence – so an abundance of legal consequences after all.
The fourth is the myth that the Scottish Government has been a passive actor to this reference. It is true that this reference is the Lord Advocate’s reference. Again, I do not question that fact nor do I question the Lord Advocate’s deliberations. I do, however, consider the political level of the Scottish Government. That political level created the draft bill. The First Minister asked the Lord Advocate to consider making the reference which she ultimately made. If the political leadership had not commissioned the bill, the Lord Advocate would have had nothing to refer.
Moreover, we have seen inconsistency in the political rationale for this reference. The official message is that this case is intended to resolve an unanswered legal question, on a proactive basis as a generous step, and to provide legal certainty. Yet, the reality, as seen in the Lord Advocate’s written and oral arguments, appears to be that the political level of the Scottish Government does not have the confidence to state positively that the bill would be within the Scottish Parliament’s competence, which is a requirement under the Scotland Act, and it desires a court ruling to inform its decision. If true, the motivation would not be providing legal certainty for a unilateral referendum, but giving legal comfort to the minister to make a competence declaration about the bill. That may explain why the draft bill has not, in fact, even been introduced into the Scottish Parliament at this stage.
Moreover, while the Scottish Government has reiterated that it will respect the outcome of the Supreme Court reference (which is pleasant to hear, but that should be an expectation), it has also made abundantly clear its desired outcome – that the draft bill be found within legislative competence. The SNP’s written submission reflects that desire profoundly – arguing, in effect, that the law should be interpreted to give effect to a political promise such as this, perhaps irrespective of its content, because self-determination is important. The Scottish Government has equally made clear that it will strongly disapprove a decision that the draft bill is not within competence. In fact, the political level of the Government requested this reference already knowing the outcome that it wanted. Political figures did not make this reference, but they shaped many aspects of its image.
3 : Independence Prospectus
The third dimension is the Scottish Government’s independence prospectus. First of all, we should appreciate the novelty of this exercise. For years, we have opined that the context for the independence debate has significantly changed between the 2014 referendum and the present, particularly because of Brexit. Indeed that “material change of circumstances”, as the SNP called it, was previously the central justification for a new referendum. Yet, throughout that time, the SNP and the Scottish Government were largely reluctant to provide their answers to these new questions. This prospectus is an opportunity for us to hear those answers at last.
As we know, the Scottish Government has decided to publish a series of papers under the banner of “Building a New Scotland”. This approach seems to be a departure from the single mega white paper, Scotland’s Future, produced for the 2014 referendum. As we also know, three papers have been published to date. So, while the series is far from complete, we have plenty of material upon which to assess the current shape of the revised case for independence. To start, we can observe that the topics of the papers do not map to specific themes of the independence debate. The topics, and the sequencing, are the preferred choices of the Scottish Government. The first paper makes comparisons with European countries. The second reviews the democratic structures of the UK. The third provides a mélange of economic, fiscal and monetary policy, EU membership, borders, trade and more.
Moreover, the papers published to date are often vague and non-committal. That approach undoubtedly reflects political decisions, in part. It could also reflect, in part, the fact that civil servants (with ministers and special advisers obviously involved) have written these papers. Pros and cons come with publishing the prospectus through the Scottish Government, instead of a political party or a campaign body. It has the imprimatur of government, but it is also blander than might otherwise be the case. In my assessment, it would be better for proposals for independence to be written and published by proponents of independence, not outsourced to civil servants whose function is to deliver public policy in the present.
To analyse the Scottish Government’s independence prospectus to date, we should give consideration to four principal factors. The first is the inherent challenges of producing such a prospectus, whatever the levels of candour or detail in this particular proposal. No government today can promise with certainty what statehood would look like in the future. Many of the consequential decisions, and the circumstances informing them, would happen after an independence referendum. Government and parliament would take decisions, as would the people in elections and referendums. Government of today can make proposals on independence, but it might not be government in the future, so its proposals could be obsolete. In any independence referendum, whether it be 2014 or in the future, voters must decide based on incomplete information. That is the nature of constitutional change.
The second factor is the approach adopted in the independence prospectus papers. Independence is a broad issue with many components and themes, some of which feature more regularly in debate than others. Some are more important to certain voters than others. In short, those who are interested, regardless of whether they have an existing view on independence, have questions and are interested in answers. By answers, I mean proposals. The current Scottish Government advocates independence, so how does it propose to address the major questions of independence and regular points of debate? However, to date at least, the government prospectus has not focused on providing proposals on the major questions. Instead, it has focused on providing information about those questions. That difference in approach is substantial and revelatory.
It indicates that the Scottish Government, for whatever reason, is attempting with these independence papers to fulfil a function which it is not designed or equipped to undertake – that of a neutral provider of information on the prospect of independence. The papers are peppered with phrases such as “providing people with the information they need” and “supporting an informed debate”. They make frequent reference to “research” and “evidence”, as if the Scottish Government is undertaking a study on whether Scotland should become independent.
However, we should be clear, and I say this with all respect – the Scottish Government is not a university, research centre or think tank. It is a government with a political orientation and political objectives. This government wants Scotland to become an independent state and the entire purpose of this prospectus is to further that objective. It would make far more sense for the Scottish Government to acknowledge those realities, which we all can see, and present a prospectus which is open about them – and which provides its own substantive proposals.
For instance, on EU membership, we do not require the Scottish Government to tell us how joining the EU works. I can tell you right now how joining the EU works, as can other experts. Such information can certainly be useful to voters, but government does not need to provide it, and providing it is not a substitute for its own proposals. Indeed, we should expect the Government to tell us instead how it proposes to undertake EU accession – what it recommends; what it is offering, notwithstanding the uncertainties and the inability to offer guarantees. That is the evident purpose of a prospectus for independence. In my view, that it what most people consulting the prospectus seek.
The third factor is the arguments advanced in the independence prospectus papers. I will not review every claim made in those papers published to date, but I will select some indicative ones which merit some examination. One is the premise that Scotland could match the performance, across a variety of metrics, of small and medium European states if it were independent. Incidentally, the method of comparison in the first independence paper is flawed – it compares those states, such as Iceland, with the UK, which is a large state of different shape and circumstances.
In any event, yes, it is possible that Scotland could eventually match the performance of comparable European states, but it would take years and require a transformation of our society. The contention that Ireland’s trade diversification over the past 50 years is relevant for Scotland is also misplaced. That process took place in a different era. Similarly, it is irrelevant that the EU Single Market is bigger than the UK economy if Scotland still does a preponderance of its trade with the rest of the UK.
Another persistent claim in the independence papers is that the UK has a “failed economic model” which apparently is the root of many of Scotland’s problems today. They contend that Scotland is too reliant on the UK economy. I find these assertions fascinating, for they suggest Scotland is somehow separate from the rest of the UK already. If the UK economic model is broken, then we in Scotland share at least some of the responsibility. The premise that Scotland never had any role in shaping the UK economy is not convincing. In any event, I remain to be convinced that Scotland’s economic model, in the case of independence, would really be so radically different from what we have today.
On trade, Scotland is fully integrated into the UK economy. We were previously all integrated into the EU Single Market, but the realisation of Brexit regrettably ended that for us. Now, Scotland has to choose whether it wants greater economic integration with the rest of the UK or with the EU – one of the many choices at the core of the independence debate. Each choice has its consequences which cannot be avoided. Independence and EU membership would bring eventual trade reintegration into the EU, but they would also create new trade barriers with the residual UK.
Another claim is that, in the event of independence, Scotland and the UK would be “equal partners”. I would be cautious of such terminology. It is true that Scotland and the UK would both be sovereign states, members of the United Nations – so, in that sense, “equal”. Otherwise, by economic size, population, geopolitical weight, the UK (more to the point, England) would be greater than Scotland. The UK’s peers would continue to be France and Germany. Scotland’s would be Denmark and Ireland. No recognition is given to the fact that independence would create consequences and challenges for others, particular the residual UK and Ireland – considerations about which we should be open.
The fourth factor is the intended audience and impact of the independence papers. On the first score, I admit that it is difficult to ascertain the exact audience which the Scottish Government has in mind. One answer might be the Scottish public as a whole. Yet, as I indicated before, we are speaking of a government with a political orientation and political objectives. Surely, it has a target audience in mind as the core focus, with the wider electorate as a secondary focus. Logically, that audience would be voters who are interested or might be interested in supporting independence, but who are not convinced. Those voters who are open to being convinced.
In the main, they either opposed independence in 2014 or did not participate for one reason or other. They are pro-European and significantly opposed to Brexit. They are likely educated and well informed about politics and policy. I suspect that many of them will be Labour voters. That audience, I would say, would be the focus for a government looking to build a sustained majority for independence. By extension, what would that audience seek in these independence papers? In short, proposals – as I described before. These voters are surely looking for substantive answers and specific proposals on EU membership, borders, the economy, currency and more. They will not be much interested in ebullient rhetoric that announces the wonders of independence, or even the dangers of non-independence. That would simply confirm their suspicion that good answers to their reasonable questions either do not exist or proponents of independence do not want to offer them.
Does the government independence prospectus, as it presently exists, meet that standard for substance that our pro-EU, open-minded audience has set? In short, no. As I have noted, it is defined most by its vagueness on core matters of debate. It prefers to offer information rather than proposals. Strangely, it adopts the false and unconvincing tone of an academic study. Interestingly, it does not extend itself to attempt to convince the target audience which we have identified. In other words, it does not provide the answers and proposals which those who could be convinced to support independence expect or desire. The obvious question arises: What exactly is the purpose of this independence prospectus?
That question leads me to the intended impact of the prospectus. Presumably, it exists but to increase support for independence. As I have said, it is not a neutral dictionary – it is a political document. However, as we have established, the prospectus, to date, has proven itself unlikely to convince the target audience, so it does not seem inherently likely to change opinion on independence at this stage. Perhaps the Scottish Government hopes that people will not actually read these papers, and simply take reliance from the fact that they exist. I find that yet another strange gamble. Ironically, as the independence papers cite themselves (as yet another reason for independence), Scotland has one of the most educated populations in Europe (around 55% of people have some third-level education). Our electorate is intelligent. We may tolerate puerile politics but, when it comes to matters of constitutional importance, we expect serious substance. The Scottish Government’s independence prospectus may yet offer that substance – but it does not do so at present.
Another potential intended impact of the prospectus is to hearten existing supporters of independence. Each instalment presents an opportunity for the Scottish Government to signal to its supporters that something related to independence is happening. In fact, the Government’s entire majoritarian referendum strategy seems oriented around existing independence supporters at the expense of everyone else. In that context, it is less demanding to argue that this independence prospectus is in fact most directed at the choir, rather than the audience. While some independence supporters will disagree with some of the content of these papers, surely most of them will appreciate this sense of momentum, even if it is truly fleeting, when compared with the previous inaction.
I would note one additional factor when it comes to the intended impact of the independence prospectus – one which is often not recognised. That is the manifest tendency these days for Scottish Government publications, written by civil servants, to appear to have as their first audience the political level of the Government itself. While that emphasis may, or may not, make sense for some internal briefing, I can say with certainty that it does not make sense for public documents – unless their only purpose were to content the political leadership of government, which would be a strange mission. I wonder how much that tendency influences the shape and content of this prospectus.
4 : International Community
The fourth dimension is the role of the international community in the debate. On this dimension and the following one, I will be briefer than on those before. I address this dimension of the independence debate because it holds an apparently undefined, mythical importance. The great international community. Here, again, we have a notable mismatch between the intelligence of our electorate and the state of our politics. Two falsities in particular should be dispelled. The first is that the states and international organisations of the world are eagerly awaiting every development of our inward-looking independence debate. Certainly, states, especially in Europe, pay some attention to the debate, at times – but they do so to inform themselves and maintain their own interests, not out of a fascination, much less desire, to see Scottish independence happen or not happen. The EU and the rest of the world have so many challenges and priorities. Too many. I doubt very much that anyone in Brussels awakens daily with the hope of news on Scottish independence.
What role, then, do the EU institutions, EU Member States and other states have, or want, in the independence debate? None. They have no desire whatever to be involved in a divisive internal political matter of the United Kingdom. They will deal with developments related to Scottish independence if and when anything actually happens. If the people voted for independence, in a referendum approved by the UK Government, I am sure that the EU would be generous and gracious, at least in its initial rhetoric. In the absence of such an eventuality, representatives of governments and EU institutions will, I imagine, say as little as possible.
The second is that the “international community”, however that is exactly defined, will respond to the evolution of the independence debate by doing anything other than tracking the position of the UK Government. Indeed, part of the Scottish Government’s ostensible rationale for requesting the Supreme Court reference was to create legal certainty so a referendum would be “recognised by the international community”. That line of reasoning suggests that the states of the world will be weighing potential action in relation to Scottish independence based on anything that the Scottish Government does or on every new turn in the debate. That is not the case. States will base any reaction, or non-reaction, to Scottish independence on the position and decisions of the UK Government, as the representative of the state in question. If the UK Government does not recognise an independence referendum or does not recognise Scotland as a separate state, I would not expect any other reasonable state to do so either. Those are the realities of international relations.
As I have underlined, the referendum dispute is a political matter. It is also an internal matter. No serious recourse exists on the European or international plane. Occasional talk of taking cases to “international courts” is unsubstantial and rather derisible. It is not the role of EU states or other states to resolve our referendum dispute. We must solve our own problem. It is improper to seek to involve them in our independence debate. It also damages Scotland’s relationships and opportunities with those states – for who wants to associate with a country that always talks about itself.
5 : European Union
The fifth dimension is the function of the European Union in the debate. I have included this theme in response to recent events. I could devote an entire speech to the question of independence and EU membership – but I will not do that. Instead, I will make two necessary observations. The first is that Scotland’s political conversation on our relationship with the EU – both on our relations with the EU in the present as part of the UK and possible EU membership in the future – remains dismal. I continue to observe barely any evidence that politicians and wider political actors, in any great number, have a sufficient grounding in the politics, policies and functioning of the EU. It is manifestly difficult to have a meaningful debate when the debaters know rather little about that which they are debating.
That situation is problematic from the perspective of having good public policy. It is stunning from the perspective of our lived experience. Having continuously debated our relationship with the EU for over a decade, through the 2014 independence, Brexit and to the present day, it would be reasonable to expect that every respectable politician in Scotland has a solid understanding of the EU. By and large, the evidence I see suggests a prevalent dearth of knowledge of even the basics of the EU. It is depressing. It has consequences for our current and future relations with the EU.
The second observation is that the realities of the European Union will not change merely to meet Scottish preferences. Whether on the procedure to join the EU, the sequencing involved, the core issues of the Single Market and the euro or wider spoken and unspoken rules of business of the EU, Scotland is an outsider, an observer. If it applied for membership after independence, it would have an obvious obligation (if it intended to be successful) to understand and respect the EU’s policies and practice at the time. That obligation is true for any international organisation – the new entrant accepts the foundational position and then, once a member, seeks to stake out its own positions. Scotland could certainly seek some, modest, transitional measures or special arrangements. Needless to say, however, Scotland would be joining the EU, not the other way around.
Our debate rarely reflects that obvious fact. It does so, in my view, because Scottish politics is so thoroughly disconnected from how the EU truly works and what actually happens in the EU. As I have indicated, our EU debate is, in reality, inward-looking. It is nearly always about us, and not about the EU. Pro-EU sentiment is paired with a UK-centric worldview. This combination is not conducive to a productive conversation on our relationship with the EU as part of the UK or the prospects of EU membership after independence. Furthermore, the efforts by some proponents of independence to present the EU and the UK as polar opposites, with the EU ever virtuous in contrast to the UK, and where Scotland shares in the EU’s moral superiority over the rest of the UK, are simplistic and distasteful. The EU is a complex political union. A real debate must reflect that fact.
Conclusion
In summation, the Scottish independence debate is on an unstable and unpredictable path. We continue to have no clarity on whether or when an independence referendum will take place or, if it does, if it will mean much in practice. The Scottish Government pursues, entirely voluntarily and deliberately, a majoritarian referendum strategy which is not suited to constitutional change and which is the opposite of principles of good governance and the precedent of the 2014 referendum. The Supreme Court, if it chooses to answer the Lord Advocate’s reference, can only interpret the narrow legal question before it, which is wholly separate from the actual matter at hand – whether a meaningful, bona fide referendum happens. Whatever the Supreme Court’s judgement, this case will not inherently resolve the political dispute over holding a referendum.
The Scottish Government has embarked on publishing instalments of a new independence prospectus which are, to date, vague and non-committal on the major questions of the debate. While we can imagine the logical target audience, the papers published so far do not speak to that audience, instead appealing more to existing supporters of independence and the political leadership of the Scottish Government. The international community has no role whatever in the independence debate, and the fact that some seek to involve the EU or other international actors is a reflection of their own inability to appreciate the realities of international relations and the relative unimportance of Scotland’s constitutional future to decision-makers in Brussels and elsewhere. The debate on EU membership and independence continues to be dismal, embodying the utter disconnect between Scottish politics and how the EU actually works, compounded by the lack of socialisation of Scottish political figures to the politics and institutions of the European Union.
Having said all that, I suppose that I do not need to tell you that the state of the independence debate today, in my view, is concerning and deteriorating. No matter how much proponents of independence seek to escape it, the facts always return to the political dispute between the Scottish and UK Governments over a referendum and the imperative of cooperation between the two governments to create a viable pathway to independence. That political dispute remains unresolved; that cooperation remains non-existent.
The central question of this speech is “Towards what?” when it comes to the independence debate. Many proponents of statehood would say that the answer is simple: “independence”. I submit that I have unquestionably demonstrated today that the true answer to that question is neither simple nor evident. I foresee greater acrimony and polarisation within Scottish politics. Even if an independence referendum happens in the near future, about which I am doubtful, I do not have confidence at this point that it will truly be a meaningful referendum – or that it will resemble the 2014 referendum. A viable pathway to independence, for those who seek, remains, in my assessment, elusive.
I will conclude with a point which I made early in my speech. Choices exist in politics. The decisions of politicians, parties and governments are not inevitable. I suspect that, in the months ahead, political figures on both sides of the independence debate will insist that their positions were necessary – that they had no choice. Yet, where they discard compromise, consensus and dialogue, the real limitations are those which they have created themselves. Thank you.
Background
Event Information
Anthony Salamone, Managing Director of European Merchants, delivered this speech, Towards What? The Future of Scotland’s Independence Debate, on 2 November 2022 in central Edinburgh.
Event Description
After years of repetition, the dispute over whether or when to hold a new Scottish independence referendum has more recently begun to evolve. In the summer, the Scottish Government launched its long-awaited referendum strategy. A reference to the Supreme Court on the Scottish Parliament’s legislative competence over a draft referendum bill is pending. Instalments of the “Building a New Scotland” series, the Scottish Government’s independence prospectus, have been published. To many proponents of independence, the answer to the question of “Towards what?” is simple: independence. Yet, the reality is manifestly more complex. The UK Government remains opposed to holding a new referendum. Whatever the Supreme Court decides, the UK Parliament and Government will continue to have substantial power to reshape the legal foundations of the debate in ways that the Scottish Parliament and Government cannot. In Scotland, only pro-independence parties support a new referendum and no consensus exists on the issue in the Scottish Parliament. Simply put: political divisions are pronounced and a viable path to statehood, for those who seek it, is far from evident.
In this speech, Anthony Salamone, Managing Director of European Merchants, will survey the state of the independence debate. He will probe the majoritarian approach which the Scottish Government has adopted in its referendum strategy. He will reflect on the consequential, yet incomplete, legacy of the Lord Advocate’s reference to the Supreme Court. He will parse the core arguments of the Scottish Government’s “Building a New Scotland” papers published to date. He will clarify the purported role of the mythical “international community” in the independence debate. In so doing, Anthony will offer a more objective answer to the question of “Towards what?” and provide a strategic assessment on the future of the Scottish independence debate. Q&A to follow. This event is on the record.
Anthony Salamone FRSA is the founder and Managing Director of European Merchants, the Scottish political analysis firm based in Edinburgh. A political scientist and analyst, Anthony is an authority on the politics of Scottish independence, including the dispute over a new referendum and the prospects of Scottish EU membership and foreign policy. Read his profile on the European Merchants website.
