“A vote for the SNP is a vote for a referendum on independence. Based on the 2011 precedent, an SNP majority at this election is a mandate for the transfer of powers to the Scottish Parliament to enable an independence referendum to be held.”
So said the SNP manifesto. Yet, the SNP failed to win a majority, so where does the election leave the independence movement?
The SNP won a convincing victory, reflected both in its 58 seats and by being streets ahead of its rivals. But the lack of the sought-after majority, alongside the decline in the SNP’s vote share – down 9.5pts and 13.2pts in the constituency and party list votes respectively, has weakened SNP claims to having won a “mandate” for an independence referendum. On the other hand, the Scottish Green Party’s success in almost doubling its parliamentary representation means that there is a larger pro-independence majority in the Scottish Parliament than ever before.
Mandates are always contested. Even if the SNP had secured an overall majority, especially with a similar share of the vote (possible, given that a small shift in just 8 marginal constituencies could have delivered a majority), it is unlikely that the UK Government would have responded as David Cameron did in 2011. Then, the SNP’s majority sent shockwaves through the Westminster establishment. It also far surpassed support for independence, supported then by around a third of the electorate. The then Prime Minister’s concession on a referendum mandate posed less of an existential threat to the Union than would appear today. Although independence was not a priority issue in the election campaign, around half of the electorate have consistently said they would vote Yes in an independence referendum. Moreover, the UK Labour Government can also claim that it has a mandate from the 2024 election to oppose an independence referendum, having clearly set out its opposition in the manifesto.
While the political mandate to hold an independence referendum is contested, the legal authority is not. There is no route to Scottish independence, or to a referendum on independence, that does not go through the Westminster Parliament. The Supreme Court’s 2022 judgment made clear that a law to hold an independence referendum would be beyond devolved competence because it would relate to both the status of the Union between Scotland and England, and whether Scotland should cease to be subject to the sovereignty of the UK Parliament, both of which are reserved matters under the Scotland Act (1998). The Scotland Act allows for transfers of competence, via s.30 orders or amendments to the schedule 5 reservations. A temporary transfer via a s30 order was the route followed last time after extensive intergovernmental negotiation and is the route the SNP hopes would lead to a new referendum. The SNP’s election victory, by itself, is unlikely to be persuasive enough to generate a new agreement. An “unofficial” referendum or a unilateral declaration of independence would not be a meaningful path to independence and is not remotely considered an option by this SNP government.
There may, however, be more pressure on the UK Government and the opposition parties in Scotland to clarify what a process might look like in the future and what would trigger it. The further we get from the 2014 independence referendum, the harder it is to rest on the fact that Scots already took a decision on their constitutional future. The UK constitution, unlike some of its European counterparts, does not prohibit independence for one or more of its constituent parts. Nor does it expressly provide a process to facilitate it, except – with some ambiguity – in the case of Northern Ireland.
The 1998 Belfast/Good Friday Agreement places an obligation on the Secretary of State to initiate a border poll on Irish unity “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland”. And where such a poll produces a majority, that they lay proposals before Parliament to give effect to that wish. The Scottish First Minister will have an ally in Sinn Fein’s Northern Ireland First Minister, Michelle O’Neill and in Wales’ new Plaid Cymru First Minister, Rhun ap Iorwerth, in pushing for clarity on the circumstances under which the constituent territories of the UK can decide to leave.
In the meantime, we can expect the new Scottish Government to continue to make the case for independence, while pushing at the boundaries of devolution. This will include seeking new powers over energy, a new Scottish visa scheme, and opposing the post-Brexit constraints on Scottish self-government, not least those emerging from the United Kingdom Internal Market Act.
