The notion that it’s for the people of Scotland to decide their future is relatively uncontroversial. It has been the organising principle around which Scottish politics has revolved for decades. Yet how self-determination is practiced has become a source of contention in recent times.
Your Right to Decide is the Scottish Government’s latest provocative addition to this debate. The paper questions the idea that the UK’s union is an equal partnership against the de jure reality of parliamentary sovereignty. In this, they articulate that Scots have a ‘right without a way of exercising it’. How can the Union be voluntary if there is no obvious means for a constituent part to review its consent, they ask. As a solution, the paper proposes that Scots can deliver a mandate to exercise this right through a Scottish Parliament election, citing 2011 as the precedent.
Yet in so doing, the paper reveals its true motivation: winning next May’s Holyrood vote. This paper is aimed at activating a base with a core vote strategy. It is far more concerned with shoring up SNP support than it is with engaging in constitutional philosophy.
A voluntary association of nations?
Your Right to Decide’s strength undoubtedly lies in its evaluation of the union state. There exists a chasm between the perception of the Union as voluntary and the inability of its constituent parts to review their consent. That is because, in law, ultimate authority in the UK rests not with the people, but with the Crown-in-Parliament.
With exception to Northern Ireland, there is no definitive means by which a nation of the UK can question its continued membership of the Union. By contrast, the Northern Ireland Act 1998 provides provision for a border poll on reunification with the Republic, conditional upon the Secretary of State believing a majority would vote for it. This section of the Act is as much about giving Nationalists the option to leave the UK as it is providing Unionists with assurances of stability.
In contrast, though, there remains an unresolved tension between Scotland’s (and Wales’) apparent voluntary pooling of sovereignty and the hard legal limits imposed by the UK’s continued adherence to parliamentary sovereignty. As outlined in the devolution acts, legislative competence on the issue of the Union resides with the UK Parliament – a position stressed by the UK Supreme Court in the Lord Advocate’s Reference case. To achieve a referendum, then, the UK Parliament must permit it, either by an Act of Parliament or – as was the case in the past – by temporarily transferring the power to the devolved level.
This leads to the question of how that is achieved. The argument made by Your Right to Decide is that Scotland can guarantee its right to another referendum by mandating the Scottish Government to negotiate for one. But is this accurate?
An incoherent test
In May, the SNP will seek a fifth term and defend a 19-year spell in government. With a poor record on the NHS and below average results in other devolved service areas, the Party will want to evade a campaign focused on those issues. Perhaps that explains why Your Right to Decide focuses exclusively on the right to choose independence rather than the merits of independence itself. This pitch to protect an abstract Scottish self-interest has historically been fertile ground for the SNP – in 2015 they triumphed as the party best able to stand up for “Scotland”. Still, characterising the 2011 election as a binding precedent, as Your Right to Decide attempts, is misleading and hardly a compelling solution to the tensions of the Union.
When the SNP won a majority of MSPs in 2011 it was rightly seen as a remarkable feat – the very design of Scotland’s electoral system was meant to avoid such things. The magnitude of the SNP’s victory was undoubtedly a key influence in securing the referendum, but their electoral success was not the only reason for the vote in 2014.
At the time, the question of Scotland’s place in the union had not been tested since unification with England in 1707. Even many unionists conceded the persuasive case for putting the issue to a vote in these circumstances. Of significance too was polling at the time which suggested a commanding lead for the union with as many as 72% in favour. Thus it was envisaged that the referendum would deliver a decisive and unambiguous result.
Indeed, the combination of factors required for the referendum was all but conceded by the SNP themselves in subsequent election manifestos. For example in 2017 when the Party suggested that winning Westminster seats would ensure a “triple lock” of support for a referendum. In other words, victory at Holyrood alone had not been sufficient to satisfy the necessary conditions for a second referendum. The SNP’s 2024 manifesto alluded to this concept of tri-endorsement too, albeit with a far more radical declaration that an SNP win would result in immediate negotiations on the road to independence. Of course, the story of that election was a sobering loss for the SNP, with Scottish Labour securing 37 of Scotland’s 57 seats having outlined an anti-independence stance.
The Scottish Government’s new argument that next year’s vote alone should be judged as a mandate-affirming test seems fickle, then. Just last year, the UK Labour Government secured its own seal of approval from Scottish voters against a referendum. It is hard to see the SNP’s supposed election test as anything other than narrative crafting, one which applies when they expect favourable results and doesn’t when they don’t. It’s a shame that as a result, Your Right to Decide is just thinly veiled political campaigning, and not a substantive contribution to the debate around the voluntariness of the Union.
In any case, it’s important to break free of a circular debate on which government has a greater mandate from the Scottish people. Whilst elections capture the mood of a nation at any given point, they are not single-issue events. Instead, it surely must be the case that Scotland’s right to choose is mandated by something greater than the outcome of any single election result. Working on what constitutes that mandate is a worthwhile pursuit for any party or government serious about changing our constitutional settlement.
So what, then?
More than anything else, Your Right to Decide reveals that the issue of competing electoral mandates has reached a dead end. The SNP winning a majority next year won’t advance the debate; instead, it would likely further entrench stubborn opinions on both sides. For the impasse to be overcome, this debate requires constructive dialogue between both sides and willingness to accept some inconvenient truths.
First, accepting that there is a legal contradiction between the union as a partnership of equals and the continuing supremacy of Parliament on the question is key. That paradox had been more muted in the early years of devolution and so, arguably, mattered less. Brexit and subsequent muscular unionist activity, however, has advanced a more centralising, unitary state model. In so doing, anxiety around sovereignty has intensified as the means of reviewing democratic consent remain ambiguous.
Second, the persistent relevance of this issue since 2014 has left unionists feeling that it is never-ending, despite what they considered to be a generational decision. 2016, 2017, 2019, 2021. All of these electoral battles have been fought on the basis of mandating another vote. This is without mention of the Scottish Government’s attempt to pass an ultra vires Referendum Bill. Unionist anxiety on this point does not seem unreasonable.
In short, both sides long for, and deserve, fairness.
That’s why Your Right to Decide represents a disappointing addition to this debate and a missed opportunity. Its partisan framing of a constitutional inconsistency at the Union’s core may provide red meat for the SNP’s base, but it distracts from the very point it attempts to make. Whatever the criteria, it seems clear that a greater mandate is required for a second referendum than an election alone. Your Right to Decide not only fails to acknowledge this truth, but puts us further away from reaching the answer.
Defining the ultimate test on a future referendum is complex. It is worthy of a higher standard of debate than is possible in one article, or one government paper. It must, nevertheless, begin with dialogue and end with concession.
Declan McLean.
Declan McLean is a PhD student at Cardiff University. His research focuses on the future of the UK’s territorial constitution. He has worked in the Scottish and UK Parliaments and as a Researcher at the University of Glasgow’s Law School.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.