Are the SNP really serious about independence? IAN SMART dares to say the unsayable


Michael Moore is a numpty. The Scottish one that is. William Hague can’t have a “personal opinion”  about British Foreign policy or Theresa May about immigration. Equally, Mr Moore, as Scottish Secretary has no business expressing personal opinions about matters under his Ministerial brief.

That’s not however why he is a numpty, or at least not the only reason.

Let’s be honest. The SNP never anticipated having a majority in the Scottish Parliament to enable them to call a referendum. Since they found themselves in the fortuitous (!) position to be able to do so they have been running full tilt away from it.

Firstly, they declare that maybe even they now might not be in favour of Scottish independence but only of “Independence lite” (whatever that is). Then they suggest the referendum might have more than one question (such as “Should Walter Smith have stayed on as Rangers manager?” for example?). Finally they announce that it was never their intention to hold a referendum immediately anyway. It is this last which is then most absurd. Their official position is that, when they didn’t have a majority in the last parliament, there should have been a referendum (held long since) but now that they do have a majority there is no rush.

Presumably Eck and his colleagues joined the SNP believing that the sooner Scotland was independent the better. Have they changed their view about that? Is it now their view that independence in 2009 would have been for the good of the nation while in 2011 the nation’s interests are best served by the continuation of the Union? If so, not only have they kept quiet about it but they have failed to explain how, if they had succeeded in 2009, they would then have, almost immediately, been campaigning to put matters back together, at least until 2014.

No, the reason that we are not having an immediate referendum is that the SNP know they would lose. That is all the more reason for Mr Moore to have kept his personal opinions to himself.

To the best of my knowledge no-one asked him for his personal opinion, or any other kind of opinion. But in blundering into this debate he has done three things: he has created the impression that he (at least) does not respect the right of the Scottish people to self-determination; he has created the impression that there might be some uncertainty as to the outcome of a referendum held on an honest question and he has simply added to the SNP’s desire to be seen as having an unstoppable momentum which could only be stopped by underhand means.

I’m reluctant therefore to give Mr Moore any further encouragement but, I suppose, you can’t unbreak the egg, so here goes, in terms hopefully even he will understand…

Whether or not there is a referendum, normal politics will go on. If there were a referendum in 2014 and the SNP lost they wouldn’t disappear and they wouldn’t stop believing in independence. Certainly they would experience a period of internal party turmoil – they might even split. But at the next Scottish Election there will be some sort of party still advocating Scottish independence as soon as possible.

Equally, even if by some as yet unforseeable circumstance, a referendum on an unambiguous question (“Do you believe Scotland should leave the United Kingdom and become a completely independent sovereign nation?”, for example), were to produce an affirmative result, Unionist parties would not go away. They would continue to fight subsequent elections seeking a mandate for the continuation of the Union, and if they won, at any point before independence was a reality, that’s what would happen because no one would have any kind of mandate for anything else.

This is not an academic point. Even die-hard independistas recognise that the dissolution of a political and economic union built up over three hundred years would not be accomplished overnight. There is much talk of the national debt but there are any number of other issues. Public sector pensions, anybody? Who has responsibility for guaranteeing the pension of the civil servant who worked all their days at St Andrew’s House but who has now retired to the Isle of Wight (or Marbella)? Division of military assets? If we don’t want any nuclear submarines, should the English nonetheless compensate us for taking “our share” off our hands? Shareholdings in the temporarily nationalised banks? Would it be OK if RBS was still owned mainly by a foreign government?

These, and literally thousands of other issues will require line by line negotiation and, with a referendum in 2014, these hypothetical negotiations would never be concluded by the next Scottish elections in 2016. And if a unionist party won that election, they would then stop. There is no more obvious example than that the SNP are not really serious about independence. An early referendum might just allow them time to conclude these negotiations before requiring a further popular mandate but, then again, they know better than anybody that an early referendum, even held at the apogee of their electoral pomp, and on a question of their choosing, would be lost by a country mile. So we should all calm down; not least Mr Moore.

There are however two other important points. The first is that a referendum held on another question is patently not a mandate for anything other than the matter referred to in the question put. Some sort of absurd “Do you think the Scottish Government should talk to the Westminster government about independence and see how they get on?” question would be a mandate only to expend a whole lot of hot air and public money.

The second is however this: sovereignty in this matter does lie with the Scottish people. Notwithstanding the terms of the statutory restrictions in the Scotland Act and (with the greatest of respect to him) the decision of Lord President Rodger in Whalley v Watson, (a decision the SNP welcomed!) that is nonetheless  the constitutional position, in so far as that is possible to determine in the context of an unwritten constitution. It formed the basis of the Claim of Right (both times!) but also the unanimous view of the Court of Session in McCormick v The Lord Advocate.

If there is a genuine popular majority for independence then we will know it when we see it. The SNP would by the have had to have won a referendum on some sort of question and then a second Scottish Parliament election where they have expressly sought endorsement for their interpretation of that result. The idea that an insistence thereafter that some sort of second referendum might yet hold the line for the union is not just constitutionally unnecessary, it is politically illusory.

And I’m still annoyed with Michael Moore for requiring me to have to write about this at all.

Ian Smart is a lawyer and founder member of Scottish Labour Action. He is also a Past President of the Law Society of  Scotland. He fears not the wrath of the cyber nat. Follow Ian on Twitter at @IanSSmart