What will it take for Westminster to give Holyrood a second referendum?

Now with the calamity of the US presidential election behind us, we can look forward to the next most important vote on our horizons: the 2021 Scottish parliament elections!

I kid: but in terms of the future of the United Kingdom, maybe only partially. As the true impact of Brexit hits home this coming January beyond the jargon of hard, soft, Canada or Australia, there will be nowhere to hide from its consequences—including what it means for a revitalised movement for Scottish independence.

Given the state of recent polls, already the question of whether or not the SNP will win at Holyrood has turned from one of “if” to “how much.” Added to a possible strong showing from the pro-independence Green Party, that another section 30 order request to stage a second referendum will be made seems all but inevitable. In equal measure, however, there is nothing to stop Westminster from treating any new request exactly the same way it has done before: that is, by outright rejecting it. And in a scenario where both sides are given no reason to concede, it will be in what happens after Groundhog Day that the real quagmire begins.

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So what realistically can the Scottish government do when faced with another refusal? Perhaps the most surprising thing to consider is that it is not actually known beyond doubt whether Holyrood needs approval from Westminster in order to stage a vote, or a referendum of any sort.

The often mystifying section 30 is merely a clause of the original Scotland Act 1998 that “may extend the competence of the Scottish parliament into a new area of responsibility currently reserved” to Westminster. Its main benefit is its convenience, as it circumvents the need for primary legislation to be passed in the Commons in order for these “extensions” to be made. In the past, section 30 orders have been issued for many other areas of competence, from amending the minimum voting age to allowing Holyrood to legislate over railway construction. In theory, its use is limitless. Westminster could devolve everything to Holyrood via section 30, including power over all taxes, foreign affairs and the military. In practice, it’s very unlikely Westminster would ever desire to make those kinds of changes and, if it did, it would surely seek the backing of primary legislation.

More importantly, there is nothing in section 30 that mentions the power to stage referendums specifically—and the interpretation of what counts as a “reserved matter” is not as diecast as you’d expect. One interpretation suggested by Stephen Tierney of the Edinburgh Law School is that, as referendums are by default merely consultative and not binding in the UK, a referendum in itself is not impeding on a reserved or constitutional matter—in this case, separation from the UK—because it does not actually enact the change it is proposing.

In other quarters, however, this ambiguity is considered a non-starter. As experts in constitutional law Aileen McHarg and Chris McCorkindale outlined in a blog post earlier this year, any referendum staged without Westminster’s consent would almost certainly be subject to legal challenge: and if ever there was any prospect that Westminster would lose that challenge, it could simply pass primary legislation to clarify that preparing a referendum is not within devolved competence—something already done in response to Holyrood’s own EU “Continuity” Bill. Beyond this there will be no means to legally force Westminster into handing over power to stage a referendum. With nothing in law stating that Westminster is “obligated” to issue section 30 orders, its refusal would be viewed by the courts as a political, rather than legal, choice.

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But perhaps all this attention on the law is downplaying the very real impact the realm of politics alone still wields. For some SNP MPs, it is clear that political pressure remains the clearest route to securing a second referendum. As Kenny MacAskill told Prospect: if Westminster “is not prepared to agree to a referendum being allowed then the election should be made the referendum. A confirmatory referendum would still be required, but a mandate obtained would allow for negotiations to commence” between Holyrood and Westminster on enabling such a vote. Meanwhile, Joanna Cherry said: “If next year's Scottish election is won by the SNP on the back of a clear commitment in our manifesto to hold a second independence referendum, then for the UK government to prevent such a referendum from proceeding would be a truly Trumpian breach of democracy.”

Indeed, much has happened on both sides of the pond to make us fearful for the informal conventions, expectations and norms that so many of our democratic institutions depend upon. Is a manifesto pledge really enough to secure a referendum on its own? Does enough people voting for something actually make it happen? But perhaps our concern about democratic norms (and our quick dashes to the courts) is more a sign of the times than a symptom of their dwindling influence. With the western world’s transgressor-in-chief Trump (almost) booted from office, does the Biden era on the horizon signal a possible restoration of respect for them closer to home?

Boris Johnson’s recent comments that devolution has been a “disaster” north of the border would suggest not. But in politics, it’s worth remembering that tongues are loose. In the end Johnson did not die in his ditch over extending Article 50; there was no “oven-ready” Brexit deal; and the measure by yesterday’s politicians of how long “once in a generation” can last is of no consequence to tomorrow’s. As it stands, the surest way the SNP and the wider independence movement have to achieve their aims is through Westminster’s co-operation, be it willingly or begrudgingly. With independence now consistently polling at over 50 per cent, what it might take to get that co-operation remains uncertain. For our career-minded, “world king” Prime Minister, it may simply be the day when “losing” Scotland is no longer grounds for resignation.