What is the constitutional path to independence?

When Theresa May blocked the Scottish Parliament’s request for a new independence referendum in early 2017 by declaring that “now is not the time”, a lot of people expected it to backfire. However, the SNP did worse than expected in the subsequent Westminster election, and this has now turned this into Unionist orthodoxy, and indeed Labour today seem to be going down this route, too.

It’s quite a change. Before the creation of the Scottish Parliament, it was generally accepted that a majority of Scottish MPs could declare independence, just like that. For instance, in Margaret Thatcher’s “The Downing Street Years”, she says this:

If [the Tory Party] sometimes seems English to some Scots that is because the Union is inevitably dominated by England by reason of its greater population. The Scots, being an historic nation with a proud past, will inevitably resent some expressions of this fact from time to time. As a nation, they have an undoubted right to national self-determination; thus far they have exercised that right by joining and remaining in the Union. Should they determine on independence no English party or politician would stand in their way, however much we might regret their departure. What the Scots (not indeed the English) cannot do, however, is to insist upon their own terms for remaining in the Union, regardless of the views of the others.

And according to Bella Caledonia, Labour’s Robin Cook contemplated declaring independence in 1983:

How can we let the Scottish people suffer another Tory government hell-bent on union destruction and driving down living standards? I am seriously considering leading all Scottish Labour MP’s over the burning bridge to join with the SNP and declare UDI.

Because the United Kingdom doesn’t have a codified constitution, this right was never enshrined in any formal document, but it seems to have been generally accepted. When the Scottish Parliament was created, many people thought that the right to declare independence moved from Westminster to Holyrood. Because of this, it was generally accepted that David Cameron couldn’t block the Scottish Parliament’s request for an independence referendum after the SNP gained an absolute majority in the 2011 election – all he could do was to fiddle with the details (but Alex Salmond was clearly felt to have the upper hand in those negotiations and got his way in most respects).

As far as I can tell, Theresa May’s and Labour’s refusal to allow a new independence referendum leaves us in uncharted constitutional territory. Can a majority of Scottish MPs declare independence? Can a majority of MSPs do it? Can either of those organise a binding referendum? Or have we shifted to a version of the Spanish constitutional position, so that a majority of all MPs is now needed to hold a referendum or to declare independence?

Labour’s refusal to contemplate a new independence referendum might benefit the SNP in the short term, but surely it will be harmful for the party in the longer term if they don’t discover a new constitutional path to independence. Why vote for a party that doesn’t know how to achieve its objective?

Of course there are alternatives, but we very easily get into UDI territory – and Catalonia’s experience has demonstrated that this isn’t a simple and painfree way forward.

I’ve said it before, but I really would like Nicola Sturgeon to tell us what her plan is if Westminster won’t accept a new indyref. Is her plan to hold a new Holyrood election with independence in the SNP’s manifesto? But what if the Unionists won’t accept that either? Will she tell her MPs to start disrupting Westminster as much as possible? Or perhaps take a leaf out of Sinn Féin’s book and tell them not to take their seats?

I would be tempted to ask the Supreme Court whether there is a constitutional path to independence, other than a majority of all MPs at Westminster. They might refuse to take on the case, but that will effectively be an answer, too. At least we’ll then know that we are in the same boat as Catalonia.

I just wish the Unionist parties had told us back in 2014 that they saw the referendum as a once-in-a-century event, rather than embracing all the swithering voters who wanted to give the Union one last chance.