Thinking about the Supreme Court outcome in the midst of a World Cup, there is perhaps an apt metaphor we can draw upon. When Scotland plays Brazil, the result is not a foregone conclusion. On the day you wonder if against all odds, there be some kind of upset. For a minute before the announcement, I can’t deny that kind of feeling.
That was my heart talking. Though not because the Supreme Court ruling in favour of the Scottish Government would have brought independence all that much closer. Indeed, from the moment the First Minister announced the Supreme Court strategy, I opposed it, arguing that it was a cul-de-sac for the independence cause. Instead, it was designed as a means for the SNP leadership to maintain its electoral dominance, while showing some kind of movement on the national question. It also, I speculated, offered a route towards the eventual exit of the First Minister, dotted along the way with landmarks suggesting she did all she could to achieve independence for Scotland.
Of course the Supreme Court, itself an organ of the British state, was never going to be the terrain upon which Scottish self-determination would be best fought. That much was obvious. But it was doubly so when you looked at the quality of the Scottish Government case. It felt akin to turning up to a war with a pea shooter. That said, this was not the only problem. As we have shown in the coverage of the new “White Papers” for independence, the prospectus is wildly underprepared, and the recent uptick in talk of a referendum amounted to mere box ticking.
Returning to that moment in which I indulged the fantasy of a referendum next year is instructive. Because it is that sentiment that the SNP leadership thrives on. Hope is a valuable political commodity. But now is not a time for excusing yet another false dawn. Nor is it the time for regrouping in the pub, forgetting about the tactical mistakes made in the match, before rolling on merrily to the next dead end.
Independence Captured seeks to be an antidote to such an approach. It is not designed to paper over the cracks or to fuel another burst of false expectation. Over time, that simply exhausts and eventually destroys, any political movement. It is meant to be a sober and material analysis of what is happening.
That is the first step to moving forward with purpose.
(Note: this edition contains a number of quotes from previous newsletters. This is to attempt to show a consistency of approach, and to indicate some longer-running themes covered at Independence Captured for new subscribers and readers).
The low energy build up
The preamble to the Supreme Court ruling is years long. In those years the SNP has sidelined the popular elements of the 2014 campaign and directed the energy of that movement into the hands of the corporate lobby. I have written about this topic in some detail and will continue to attempt to show the consequences of this on both the domestic agenda, and independence strategy.
In many ways this approach is entirely understandable from the perspective of the SNP leadership, whose primary focus has been to retain governmental power in the devolved context. Rather than being held to account on tactics, policy development and campaign pace, the leadership, enjoying near absolute political hegemony, were instead able to deploy a controlled strategy of tension in relation to independence.
In other words, the national question itself became a tool to reinforce the dominance of the SNP electorally, as well as shielding the party of government from its domestic failings. Reflecting on yet another SNP conference filled with much heat, and very little light, I wrote the following in a Herald column exactly a year ago:
“In 2014 independence was seen by a grassroots movement as a key to unlocking real change. Now, independence is being held hostage – kept on the boil but never to overflow. This does take skill. It requires a careful and constant tweaking of the message. It can go wrong. But so far, it has worked.
“Issues are pressing. The NHS is in critical condition. Shamefully, child poverty has risen in every council area since 2015. And for those of us who see independence as a strategy to bring about a shift in power to Scotland’s working class – the present trajectory will not do. Public relations can be powerful. But there are limits.”
Those limits are expressed through the lack of substance behind the headlines and the latest rhetorical wheeze about how close independence is. Instead of expending time, and the resources committed by independence supporters, towards establishing the institutions required to prosecute a successful independence campaign, the SNP put a premium on spin. This was always at the expense of the movement at large, though it was a most attractive avenue to electoral success.
It meant, for example, that the prospectus was woefully incoherent. Scotland could be in the European Union, as well as being locked into a currency arrangement known as Sterlingisation, with the UK. The hard questions around borders were never answered. The notion of an embedded, popular and mobilised vision for independence simply failed to materialise.
Neither did a campaign to transmit such a programme to Scotland’s communities. No infrastructure around any kind of mechanism that brought together the wide ranging support for independence in the country ever came to pass. There would be the occasional nod toward activism. But it was never organised. Sometimes the leadership would be pressed on this. “You don’t have to ask permission to campaign,” they would reply. Perhaps not, but you do need materials, a prospectus to mobilise around, a sense of direction and belief that it is all going somewhere.
The movement, such as it existed, went into decline as a result of the combination of the defeat of 2014 and the strategy adopted by the leadership of the national party. That “strategy” was always, and still is, about the success or otherwise of the SNP at elections, and not necessarily about bringing Scotland closer to independence in the near term.
To do so would take the SNP leadership too far outside their comfort zone, especially after the experience of Brexit. On that issue they chose, and I opposed this at the time in the Scottish press, to focus on “stopping Brexit.” They committed to a “Peoples Vote,” the folly of which was obvious, as they opened themselves up to the same treatment should Scotland ever vote for independence. But long term thinking was rarely in evidence.
Opportunities came and went. Each time, like a wave lapping up against the beach, another layer of the movement would disintegrate. As openings emerged only to be duly passed up, the confidence and belief of those independence supporters who were desperate to see some kind of forward momentum, would weaken. Front pages of The National declaring “game on” sporadically, would come to be ridiculed. Yet it wasn’t only the SNP and Scotland’s only pro-independence newspaper who watered the seedbed of illusions around “indyref.” As David Jamieson puts it:
“To understand the enduring power of the myth of a new independence referendum, you must understand that everyone in Scottish public life is united under its sign. Pro-independence politicians need it to supply popular legitimacy for their government. Unionist opponents need it to mobilise their own supporters. The media need it to attract interest to their publications and broadcasts. Various outriders and grifters on all sides need it to furnish their micro-celebrity status and crowdfunding initiatives.”
Meanwhile, the SNP’s domestic and economic agenda became evermore technocratic and in hock to multinational corporations and the Scottish establishment. Scottish wind was privatised. The nation’s green energy future, which should have been in the gift of millions of Scots, was simply packaged up and sold off to the benefit of international capital. The Scottish National Investment Bank was eroded of its initial mission and ended up as a vehicle for lubricating Scotland’s corporate sector.
In addition, with all of the power at their disposal, the SNP failed to institute any serious reforms around land, the available tax powers, or indeed on industrial strategy. They even excluded their own trade union group from raising such matters at their party conference.
What we have is a litany of failure, on almost every conceivable front. The National Care Service? Yet another example of the yawning chasm between rhetoric and reality. Indeed, it is difficult to think of one major policy initiative voted for by SNP members at their conference, which hasn’t been disfigured out of all recognition at the other end.
It was little wonder then, with the movement expunged of its popular appeal, disarmed by a neoliberal prospectus and on a life support system of diminishing hope dolled out at party conferences, that the run up to the Supreme Court verdict was so flat.
The SNP conference just weeks ago, as I reported, was truly moribund. A far cry from those heady Hydro filling days of yesteryear. This didn’t feel like a party gearing up for the most historic campaign of its existence. The smattering of applause for mentions of “indyref 2023” amounted to a somewhat robotic sounding party slogan to keep the troops in check. It was weak sauce, and no one really believed it. Certainly, the SNP leadership knew it was bunkum. The same is true of items such as Mike Russell’s “11 point plan.” At least, we might hope this is the case, given the weakened state of the movement and the absence of a viable plan for Scottish statehood.
The week running up to the “day of destiny” was punctuated not by a bustling and energised army of SNP MPs, ready to put “Scotland’s cause” at the heart of matters. Instead, they were infighting, as we heard murmurings of yet another coup against the ailing Ian Blackford. Perhaps even some of his own MPs were tired of his predictable performances at PMQs.
On the eve of the Supreme Court announcement, it was reported that SNP MPs were “split” on whether or not to walk 5 minutes down the road to show even the most tepid form of advocacy for the independence cause. A cause made up of hundreds of thousands of people whose votes have put them on the green benches in the first place. In the end, a handful turned up. They then had a normal day at Westminster, in a palace secure from the kind of audacious stunts that erstwhile Scottish nationalist rebels may have revelled in.
This is part of a years long process of demobilisation. It is thus, because the marching up and down of the independence bandwagon when it suited one party’s electoral prospects, could only last for so long before it dampened enthusiasm. In my estimation, the independence cause is now mired in so many strategic problems that independence is now, without question, a long term project.
It will require a new leadership, a new prospectus and new alliances. It will require new arenas through which to debate the issues. It must entail an entirely different approach which recognises the substantial barriers to establishing a sovereign Scottish state.
The verdict of the Supreme Court
The Supreme Court verdict is unequivocal. I thought they would reject the Scottish Government’s case, but through some kind of fudge. That was my political brain speaking, though, since I don’t have a legal one. But the decision they arrived at could not be more starkly put:
“In a unanimous judgment, the Court answers the questions before it as follows. First, the question referred by the Advocate General is a devolution issue, which means that that the Court has jurisdiction to decide it. Secondly, the Court should accept the reference. Thirdly, the provision of the proposed Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?” does relate to matters which have been reserved to the Parliament of the United Kingdom under the Scotland Act. In particular, it relates to the reserved matters of the Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom. Accordingly, in the absence of any modification of the definition of reserved matters (by an Order in Council or otherwise), the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence.”
This means, from here on, there can be no dubiety about the parameters on which a pro-independence Scottish Government can operate in the future when it comes to self-determination. It is worth noting that even if the Supreme Court took a view favourable to the Scottish Government organising a referendum, they would only be doing so on a very limited and constrained basis. That perhaps, yes, a referendum could indeed be held. But it would have explicitly no legal or political effect.
This would have created a very messy situation. I think it is fair to say the SNP leadership would have struggled to navigate this, partly as a result of their unwillingness to push the boundaries politically. On top of that, putting the required infrastructure in place for a referendum in 2023 was always near impossible. In short, genuine self-determination was never really being put to the test.
It means that Westminster has the power to decide. That, in my view, is structurally and institutionally anti-democratic and repudiates the idea of a voluntary Union. But what has the SNP done to raise any pressure upon the UK Government on this question? There have been next to zero attempts to disrupt this arrangement. Even when Boris Johnson, on his last day in office, rejected a Section 30, the response was apathetic.
In truth, raising support for independence among the Scottish people makes having a referendum more difficult to resist. When you can’t show majority support for a referendum in the coming year in any poll, it does have a bearing. It is to the detraction of those who uncritically defend the orientation of the SNP leadership that they have failed to pioneer a winning case for independence in this context.
All that has been achieved is to have handed the UK Government a Supreme Court victory on a plate. Alongside this development has been the absence of pressure building. Instead, as we covered in the first ever edition of this newsletter, the notion of a referendum was consistently deferred. It had to wait until the “fog of Brexit” had cleared. It had to wait until Covid, including the economic consequences of the pandemic, had passed. Note that in each case there is no finality. Brexit is ongoing, as is Covid. The SNP leadership have sought to build flexibility into their position not as a means to nimbly out manoeuvre the UK Government, but as an instrument to manage the expectations of their base.
In the end, the theatre of the Supreme Court was determined to be the place for the arguments to take place. That would show they had exhausted all possibilities. It would set the party up for well the coming General Election.
But make no mistake, the cost to the independence movement as a whole, is grave.
Post IndyRef Scotland
We now live in a changed political environment. 2014, and its legacy, is over. In the years that followed the referendum the sense among independence supporters has been that another such vote could happen imminently. As Professor John Curtis recently remarked, the pro-independence side lost at the ballot box, but “won the campaign.” This meant that the defeat of 2014 came to be interpreted as a mere stepping stone on the road to statehood. The energies involved in that dynamic offered the SNP a deep well of potential electoral support, finance and so forth.
This has been utilised to great effect by the governing party. It always required a degree of skill. On the other hand, sometimes the pronouncements were clearly outlandish. Ian Blackford even went as far as to say a referendum could be held on the same year as the 2021 Holyrood election.
The duplicity here is obvious to the discerning observer. Expanding on this, there is much to say about the role referendums can play in relation to reinforcing the political establishment. There is a growing body of academic work showing how referenda can be utilised by political elites. In her book, “The Politics of Referendums in European Democracies,” Saskia Hollander writes:
“The growth in the use of referendums in Europe in the past decades is often portrayed as a direct democracy shift. This is a misconception that stems from a bias towards explaining aggregated increases in referendums, as well as the tendency to contrast referendums to representative democracy. This does not do justice to the diversity of types of referendum available and used. Most European countries have held only few referendums, and have done so only on exceptional occasions. Moreover, most referendums are held by, and serve the interests of, politicians.”
In the Scottish context, the ownership of the “keys” to a future referendum is valuable political real estate. While 2014 inspired mass engagement with politics, through a movement whose numbers far exceeded that of the SNP, the myth making around a new and impeding referendum would help to cohere a substantial electoral base. At the same time it could aid in marginalising adverse scrutiny of government policy by drawing on the sense that the greater independence objective could only be unlocked by one party.
With this in mind, we are now in a wholly new phase of the independence movement, such as it exists, and of Scottish politics in general. The SNP leadership can no longer talk, in the way they have become accustomed to, of a coming referendum. That means there will be some interesting changes afoot. Readers may recall a previous newsletter that discussed the complete rebranding of the independence movement:
“We may be getting, slowly, to a point where instead of attempting to re-create 2014 (with the same slogans, the same organisations and the same strategy) reality might finally hit. To be even more provocative, I would consider dropping reference to the “Yes” movement as the basis for public intervention. “Yes” today is quite a diffuse term unless you have some fairly direct experience of 2014. It is doubly problematic since we don’t know for sure what the question might be in a distant referendum.”
Now that we know for certain a referendum is off the agenda, this seems all the more salient. The SNP leadership have already begun to reorientate the independence cause and its 2014 legacy, into the idea of a broader “democracy movement.” This has a number of positives for the party. Namely, SNP leaders are now more able to relegate the painful questions which come with establishing independence to focus on self-determination. Again, to refer to previous writing on this matter:
“An intransigent Tory government denying the right to Scottish self-determination does two things. First, it means the actuality of a referendum and independence in general is avoided, and therefore retained as a device to marshal electoral support even when domestic policy is failing. Second, it provides the ideal space for arguments about the national question to be conducted. Rather than having to tackle the more difficult challenges such as currency, borders, pensions, EU ascension and so on, the overriding issue becomes one of democracy.”
The flimsy prospectus for independence as part of the new “White Papers” will never be tested. The sterlingisation experiment will remain on the shelf. Of course, questions will still be asked about such things, and they may be debated the next General Election, but they won’t be put to the acid test. The road to Scottish statehood has been blocked, thanks in part to a series of fatal strategic errors, largely borne of a focus on near term political opportunism.
Democracy is a powerful idea, and the notion that it should be taken away from citizens by institutions from which a great many are terminally alienated from, offers a wealth of political capital to the party who can campaign along these lines. Around this idea, the SNP can set new horizons now that they are in the safety zone granted by the Supreme Court. With an independence referendum now off the agenda, the frame is set for the next General Election.
This is exactly how Independence Captured interpreted the most recent spate of SNP declarations around independence. That it was always a party strategy, and not an independence plan. To reiterate, from June:
“Maybe such hype is built up around the date (October 2023), that should it fail to take place, the SNP are left looking stranded an impotent. Not in this case, for two reasons. First, and most unpopular, is that at the same time as setting a date, the First Minister also accepted this could only happen if it were legally bound.
She all but admitted that October 19th could easily be torpedoed. Indeed, they reckon, alongside the weight of available legal evidence, that it will be. It was an announcement that on the face of it escalated the idea of an independence referendum in 2023, but in fact signalled the opposite.
What, then, is the answer? It is simple - you vote SNP. If a legal referendum is refused, the SNP will use the next general election as a single issue campaign to win a mandate for independence.
That, pretty much, is how things stand.
The next steps are crucial
Nicola Sturgeon is an intelligent politician, and it is out of respect for her dominance of Scottish politics that I take the time to attempt to seriously and methodically scrutinise her government, and dissect the strategy she and the wider SNP leadership have employed around independence. Make no mistake, these are not easy decisions, and after the defeat of 2014, they have in many ways become more difficult. In short, there are broader issues around the realisation of sovereignty that go beyond personnel.
With that said, the quality of the First Minister’s press conference indicated something of a dereliction in planning, a running theme when it comes to independence. Instead of the coordination of some “Yes Scotland” style body that might respond to the Supreme Court verdict, as well as the First Minster, Nicola Sturgeon stood alone as she made her statement.
But it was under questioning that the problems became more glaring. Notably, the fall back plan around making the next General Election a “de facto referendum” appears to be no further forward in terms of the nature and detail of what this would actually mean. True to form, this is to be discussed at a special SNP conference next year. It’s all so familiar.
It stretches credulity when the First Minister says time is now needed to “reflect” on the verdict, given how apparent such an outcome was to almost everyone who knew it was happening. I suspect this belies a real uncertainty about what happens next. There is a need, in that sense, to buy more time. The problem is, once you declare a roadmap, it can be difficult to change direction.
No doubt, there is a strong frame around the “denial of democracy.” But at the same time, 2023 will be marked by deepening economic turmoil and an intensification of the cost of living crisis. Democratic arguments must also, therefore, become allied with economic and social ones. These can all be had around an argument for independence. Yet this has been missing in years gone by. Support for independence has remained stable, but hasn’t shifted to any meaningful degree, and has relied mainly on a bellicose and unpopular Westminster government.
But let’s address the “de facto referendum” directly. Firstly, it’s worth noting that such an idea has been opposed by leading SNP figures. Veteran SNP MP, Pete Wishart is on record as saying:
“There are no short cuts to this. The Scottish people would never accept a ‘plebiscite’\GE for such a dramatic change to our nation’s constitution, the unionists won’t engage, the international community would be appalled. Going down this route would end any hope of ever winning”
Perhaps he has changed his mind after the ruling of the Supreme Court. But we can make a firm prediction that the SNP leadership will not take “victory” (however that is to be defined) at the next General Election as a platform to start negotiating independence, for all the obvious reasons. They might use it as a means to argue for an agreed referendum. But that isn’t especially different to previous elections. And what faith can we have that they will have constructed and argued through a properly worked out prospectus? Previous experience suggests we should be skeptical.
But there are perhaps greater problems. Should the SNP themselves stipulate that the next General Election is indeed a plebiscite on independence, and should they fail to show a popular majority for such a view, it will be a fatal, and existential, blow. The balance of forces in this regard does not bode well and it speaks to the underlying weakness of the overall approach taken around the national question by the SNP leadership since the last referendum.
Because be in no doubt, this is a weak position to be in. Yet the First Minister, absurdly, has compared winning majority support for independence in a General Election to winning a majority in a referendum. That just doesn’t tally.
In an Westminster election, 16 and 17 year olds, an important cohort of voters for the pro-independence side, are not part of the franchise. In a referendum, there can be all kinds of non-party campaigns and organisations taking part. Not so in a General Election. In an election, regardless of what any party states it is about, a variety of issues will be discussed. That means the atmosphere is radically different. These factors, and more, are in general terms geared against the SNP, who have never won a majority of the popular vote in a General Election before. That includes the 2015 election, with all of the energy of the post-2014 surge.
We don’t yet know what the terms will be. Will it be a popular vote based on the SNP alone? Or will it involve a combination of every pro-independence party standing. Does that mean that all votes, for all other parties who don’t support independence, are added to the pro-Union bucket? What would that mean for Labour voters or members, who would also opt to vote for independence in an actual referendum?
We could go on. What is the point in hailing a new “Lib Dems for Independence” group, when they couldn’t express their constitutional preference at a so-called “de facto referendum?” Is that a strategy that befits a “democracy movement?” Could a razor thin margin of victory really carry domestic legitimacy, never mind international credibility? For a First Minister who once intimated that support for independence should be at 60% before a fresh referendum, we might ask, what’s changed?
We may be better asking what hasn't changed. For one thing, support for independence among the people of Scotland didn’t. That, is probably the most damning indictment of the SNP leadership. They could not have been offered better objective conditions to make an independence case. Yet, they failed to do so, leaving the movement as a whole, stranded without resource or direction.
The present predicament is the inevitable conclusion that comes with elevating public relations above making thoughtful and credible advances to independence. As of this moment, there is no clear direction of travel for the movement beyond the, quite understandable, disquiet generated by the Supreme Court verdict itself. That means nothing of any strategic importance is shaping, far less driving, the agenda. From an pro-independence point of view, this is a shocking state of affairs. Yet, for the SNP, another successful election looms.
Once the new situation properly beds in, we will see more deficiencies in the approach taken by the SNP leadership come to the fore. In the meantime, it is difficult to showcase many domestic successes. None of this is easy. But given all that has been said and done, it is now time to make a judgement on the record.
Conclusion: The SNP win, Scottish Independence Loses!