The SNP entered office in 2016 with a manifesto pledge to initiate a referendum should there be a "significant and material" change in constitutional circumstances. Brexit provided that. Even beyond notional polling indications of public support or otherwise for independence, or a referendum on it, the SNP government are clearly entitled to request a new poll on that basis. Underwriting the SNP's manifesto claim, the Scottish government, backed by the Greens, have now secured majority Holyrood approval for a second poll. That, remember, is not just any rhetorical 'will of the Scottish people', but the officially-stated will of the Scottish parliament. If Westminster has the sole power to approve the triggering of Article 50, Holyrood has now discharged the same implicit authority to present Section 30.
As Aileen McHarg, Professor of Public Law, concludes, while the legal and constitutional process of Section 30, and Scotland's ultimate right to secede the Union, remains a contested terrain:
Politically, the Scottish Government appears to have the stronger hand, with the precedent of the 2014 referendum and a clear change of circumstances in the form of Brexit to justify a second vote.Moreover, she asserts:
Underlying all this is the sense that the constitutional mess in which the UK government finds itself is one entirely of its own making. It is difficult to see how placing obstacles in the way of a second independence referendum can do anything other than make things worse.Stephen Tierney, Professor of Constitutional Theory, also observes that this is primarily a political issue to be worked out between Westminster and Holyrood rather than taken through the courts, a scenario, he warns, that, unlike the Edinburgh Agreement underwriting the 2014 referendum, would drag judges into a deeply contentious area, with even more volatile political consequences.
In effect, any reasonable resolution of this political issue should recognise the kind of political rights underpinning it. And here we see the clear political authority of Holyrood in seeking a second poll.
Theresa May's singular refusal to countenance a Section 30 request tells us all we need to know about the enduring problem of the Westminster-Holyrood relationship. Despite holding a solid mandate for a referendum, an obdurate Tory leader can simply say no, "now is not the time." Whatever one's views on Brexit, however people in Scotland voted, that's a fundamentally undemocratic basis for determining such issues. Not only is Scotland being forced out of the EU against the majority wishes of its electorate, its government and parliament is simply being ignored.
Short of inventive guerrilla politics, Scotland's government and parliament remain subject to this blatant dismissal. Which only intensifies the case for a referendum and support for leaving our 'Union of equals'. Only independence can resolve that glaring democratic deficit.
Those who voted No in 2014 in understandable fear of leaving the 'security' of the Union must now see that the Union itself is a perpetual lock-in to Westminster government, policies and dictates. As with the UK's intention to leave the EU, all major decisions and outcomes continue to be determined by external forces and institutions.
On timing, whether or not we take May at her literal 'Brexit means Brexit', the minutiae and concluding terms are of little importance here. The UK is leaving the EU. That's the material change: the actual exit, not the detail of the exit. Holyrood's presenting of Section 30 is a direct response to the clear, binary option laid out on June 23, and Westminster's vote to enshrine Brexit.
In that vein, the Scottish government can reasonably insist on holding a vote before the signing of a final agreement between Britain and the other 27 EU states in order to widen Scotland's options for any possible transitional dealings with the EU. Professor Michael Keating (Centre of Constitutional Change) cites this as one of the main advantages of a referendum before the UK formally leaves the EU. The EU's chief negotiator, Michel Barnier, also insists that any deal with the UK must be concluded by October 2018. Thus, the Autumn 2018 - Spring 2019 schedule proposed by Nicola Sturgeon offers Scotland an obvious starting point for preparing its own arrangements, rather than being detained by the fallout and hubris of an already-determined Brexit.
May's insistence on Scotland waiting till negotiations have concluded look like classic stalling tactics, and the likely contriving of further obstacles beyond that point. Meanwhile, as the No mandarins mobilise, we hear the same appeal to our 'Great Union of Nations', and intimations of beneficent sweeteners, establishment code for 'know your place', and elusive promises of a few more 'devo-treats' if you behave well. How much longer will people indulge such patronising dismissal?
While the constitutional chess game plays out, the main consideration for now is how best to pitch the new indy case. Some Yes supporters worry that 18 to 24 months may not be enough time to build a winning campaign. Yet, the much greater risk lies in any more protracted one, with Yes activists and backers becoming jaded and disheartened.
Significantly, positions on currency, budgets, borders, trade and other key macro issues are likely to be more coherently presented this time around, with more vigilant scrutiny of media distortion and confident policy work from groups like Common Weal helping to build new awareness.
Obviously, Brexit, the actual material reason for a new poll, is at the political fore here. But it would be a serious error to make this referendum an effective re-run of the Brexit issue. Rather, it should be set as a key contextual example of external control, with independence as the only way to resist all such imposed decisions.
There's also the more immediate risk here of assuming that Scotland's 62 per cent EU remain vote will translate straightforwardly into a majority for independence. The SNP and wider Yes movement already recognise the complex variation of feeling here, not least within the SNP itself. While the party are clear in their desire for Scotland to stay, or rejoin, as a full EU member state (also the Scottish Green Party position) a more prudent pitch may be to leave this as a decision to be resolved post-indy referendum. Unshackled from Westminster, Scotland would then be in a much clearer position to determine its specific relationship with Europe, whether fully in, fully out, partly in as an EEA/EFTA state, or any other variant arrangement.
This should be presented as another model opportunity for democratic participation. Voters who fear leaving the UK must be reminded that they will be ditching not only the last chance for rejoining the EU, if that's their wish, but the abandonment of much wider possibilities. Having secured political independence, we would have the rare and enviable chance to discuss and formulate the kind of dealings we wish to see in the making of a more progressive society.
Even more than 2014, this coming independence argument has to stress to No voters and waverers the calculus of vital opportunities: not just what they would gain, but the crucial realities of what they will certainly lose. They will be throwing away the immediate right to determine their chosen status with Europe, whatever they wish that to be. But they will also lose the chance of securing a much more effective parliament with full powers to enact meaningful change. By remaining within the sclerotic confines of the UK, we forfeit all those political and civil gifts, returning us to the same constitutional dependencies, economic redundancies and social conformities.
The consequences for Scotland of a close-run, yet lost, 2014 indy vote was the imposition in 2015 of another Tory Westminster government, and a 2016 EU referendum driven by internal Tory party and establishment divisions. These are the effects and outcomes of a self-serving Unionist politics. Whatever challenges lie ahead in shaping Scotland as a more radical democracy, moving beyond the still tame policies of a soft-neoliberal SNP, nothing of real change can occur within that all-constraining arrangement.
Much is being made in Yes circles just now about the need for patient and non-acrimonious persuasion. Quite right. Nor does there seem much point in over-projecting one's own particular political views, hopes or visions.
Rather, in respectful appeal, on the day this Section 30 is ratified, more basic questions may be posed to prospective voters. Why would you opt to be governed by an archaic, undemocratic and, most likely, continually Tory-dominated parliament, rather than a modern-founded, fairly-elected and more-accountable one? Why, given the proven record of that Scottish parliament, and succession of Scottish governments, would you doubt the abilities of Scotland to run all of its own affairs? Whatever your political beliefs and affiliations, is it not better to have your policies and decisions made in a place where you can much better influence and challenge them? Why pass-up on this rare opportunity for greater participatory democracy? As ultimate sovereignty rests with the Scottish people, through its parliament, why not exercise that sovereignty to its fullest extent? Confronted by global forces intent on emasculating real democracy, why not secure as much political control as you possibly can?