The mandate for a Scottish independence referendum

8th May 2021

During the Brexit political process – and especially during the (much-missed) hung parliament of 2017-2019 – one of the arguments for Brexit to take place without a further referendum was that if one added together the votes for the Conservatives and the United Kingdom Independence Party and the Democratic Unionist Party (or added up the parliamentary seats for the Conservatives and the DUP), one had a majority for Brexit without any further referendum.

In essence: it did not matter whether the Conservatives were a minority either in terms of the popular vote or parliamentary seats, there was still a mandate if you added parties together.

Now, as the Scottish National Party appears not to have an overall majority in the Scottish Parliament, there are those who contend that the lack of that majority means that there is no mandate for an independence referendum.

However: adding the SNP and Scottish Green seats together will give a majority, as both parties campaigned expressly for an independence referendum.

And, of course, had the anti-referendum parties formed a majority in the Scottish Parliament then those opposed to an independence referendum would have averred that this was a mandate for no referendum.

Consistency may be the hobgoblin of little minds, as someone once said, but it appears to me that if one accepts that the 2017-19 hung parliament was entitled to proceed with Brexit without a further referendum, even though no party had an overall majority of either seats or the popular vote, then the SNP and Scottish Greens together are entitled to do the same with an independence referendum.

There are legal issues – including (adopting a Wednesday Addams smile) the prospect of a hard-fought constitutional case at the supreme court.

And there are practical policy issues, as the demands of the ongoing pandemic mean that there are more urgent policy proposals than an independence referendum.

But on the issue of mandate, it does not matter that the mandate for an independence referendum is formed by an aggregate of parties, just as it did not for Brexit in 2017-19.

The political argument now should be on the merits of independence, rather than on the issue of a mandate for a referendum.


If you value this free-to-read and independent legal and policy commentary please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of any amount as a one-off, or of £4.50 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is usually published at about 9.30am UK time – though some special posts are published later.


You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).


Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

44 thoughts on “The mandate for a Scottish independence referendum”

  1. Quite right – and one might have thought too obvious to need saying. However, Nick Robinson, in an exceptionally well-scripted (by Conservative Central Office) interview seemed to suggest that Green Party votes were only for the environment despite the Party’s avowed support for a referendum.

    No doubt, if interviewing one of the other parties about their opposition to a referendum, he would have argued that Labour voters were really voting to support unions, rather than the Union, and Conservative voters were only interested in tax policy.

    Or perhaps not!

    1. The interesting thing about the Greens’ manifesto is that just two of the 96 pages are dedicated to Indy. However, they see it as key to achieving their goals on most if not all of their other goals.

    2. In this matter, as in so many, the wisdom of H. Dumpty can help us reach a proper understanding:

      “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

      ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

      ’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

  2. It’s also worth noting that if the Scottish parliament was elected on a FPTP basis, the SNP would have an overwhelming majority of the seats. (Not that it should be, because it’s a poor system, but it makes the comparison with the hung parliament of 2017-19 even more stark.)

    1. Indeed. I saw this on Twitter earlier:

      If the SNP get 63 out of 73 constituency seats that would translate as 86% of those constituency seats the equivalent to winning 559 seats out of 650 at Westminster.

  3. Consistency may be the hobgoblin of little minds

    In fairness, Emerson’s observation related to “foolish consistency” – which is precisely what has got us into most of the messes we’re in right now.

  4. I agree it is not crucial whether the pro-independence majority in parliament is formed by one party or more; on the other hand (and correct me if I’m wrong) one obvious difference is that EU member states always had the right to choose to leave, whereas a Scottish independence referendum can expressly only be held with Westminster’s permission.

  5. Your Wednesday Addams impression may have to wait; fear of the Quebec outcome may result in lots of circling the ring waiting for unforced errors [poll tax test-bed, anyone].

    I think there’s a crowdfunded s30 powers case somewhere in the system at the moment, though [from a position of great ignorance] it would seem to have to hang off an Axa type analysis of Holyrood’s powers.

    Outside that box, the neo-diceyan worldview does seems a bit weak in the face of Mr Benns Questions, particularly the second; but that line of reasoning informed the arguments of one of the interveners in “Miller I” and the point was assumed-out by mere assertion. It would make an interesting topic for a future post by you.

    1. The Keatings case began as an attempt to force the UK govt to make a s30 order, but it later shifted to the more legally coherent argument that a s30 order wasn’t needed.

      1. Thanks for the clarification. I still think he’ll have an uphill battle on that type of argument at the UKSC; since it seems a wee bit more existential for them than Cherry.

  6. David, I agree with the parallels you draw with Brexit.

    But it seems to me that the most intriguing question of all (common to both Brexit and Scottish independence) is how to frame a referendum question when the proposed change cannot be guaranteed but must be negotiated with third parties. Presumably it is valid to ask such a question in a referendum, or the electorate could never assent to major change?

    Two referendums perhaps, one to start to negotiate change, the second to approve the results of negotiation?

    But after the first, would Scotland be permitted to engage with the EU on its own? If the 2014 referendum was capable of permitting full independence, couldn’t a new referendum be capable of permitting the lesser independence of negotiating with the EU?

    1. It depends what you mean by “proposed change”. Leaving the EU/UK can be guaranteed (as soon as notification under article 50 was submitted, withdrawal was inevitable by automatic operation of law); however, leaving on favourable terms (i.e. withdrawal agreement, trade deal, etc) cannot be.

      So you could have a menu of options: would you agree to leaving if X, Y, Z…

      Then the negotiations take place, and we only actually leave if the conditions set by the referendum are met.

      Just my thoughts.

  7. Great final sentence
    “The political argument now should be on the merits of independence, rather than on the issue of a mandate for a referendum”
    A plan with aims and objectives set out with strengths and weaknesses identified.
    That will work, if it is arranged in advance which of course it won’t be.

  8. Suppose there’s an indyref2 that is won and Scotland leaves the union. I feel sure that if, 7 years later, there is a slight majority of seats won by parties favouring reunion, that Ms Sturgeon will be the first in the queue to insist (out of fairness, Will of the People, yada yada), on a referendum on rejoining the (dis)United Kingdom….

    1. Interesting thought, David, however I suspect that it will not happen: It is so far down the line of ‘if … then’ events, that the probability is rather low. Also, AFAIK there has never been a re-unification of any country/-ies, which had separated* a few years previously.

      One additional point, leaders of government seem to run out of steam after about 10ish years, i.e. it is unlikely that Ms Sturgeon would be in a leadership position.

      (* Germany doesn’t count as an example – unification in 1990 was of two states, which had not chosen to be separated and unification in 1871 was creating a completely new state and thus not a RE-unification.)

  9. Very persuasive, but I’d make a number of counter-points.

    I voted SNP (both votes) because they are the best option to run the Scottish Government. I don’t want an independence referendum in the next few years. I support independence, but I know that if we have a referendum now, we’ll lose.

    The Scottish Parliament is “in the gift of Westminster”. As much as it pains me to say it, what Westminster giveth, Westminster may take away.

    We Scots have been allowed a devolved institution to run our own schools, police, and health service. The UK let us do this instead of ruling from London. But not the military, international affairs, tax (well, most taxes), and we can’t “meddle” with the union. The Scotland Act is very clear on that.

    So I voted SNP (and others voted Green) knowing full well that the Scottish Parliament cannot call an independence referendum.

    Like if I voted for who I thought would make the best local councillor even if they kept going on about policies that weren’t remotely connected to local government.

    There can be no “mandate” for a body to do something outwith its at the time of the election.

    Contrast the 2019 UK parliament elections where 48 of Scotland’s 59 seats were won by the SNP. Now, if anything gives a mandate for a referendum, it’s that.

    1. On your “in the gift of Westminster” point, doesn’t that leave Westminster’s not legislating for eg Canada as a mere matter of self denial? I’m likely misunderstanding your point.

      More importantly, on your penultimate paragraph: doesn’t that take you back into the whole “Dicey meets Mr Benn” loop, and the fundamental difficulty of reform of the “English” constitution?

      1. My point is that the sovereign government of the UK (including Scotland) is Westminster, and the current Scottish Parliament can only exist because Westminster has created it (i.e WM has “gifted” Scotland a devolved Parliament).

        I don’t think abolishing the Scottish Parliament is really comparable with repealing the Statute of Westminster (if that’s what you were suggesting). The UK’s Sovereignty over Canada has, for all practical terms, been ceded. But no one is seriously suggesting that in creating the Scottish Parliament the UK has given up any sovereignty over Scotland.

        On the second point, mandates lie only in the eye of the beholder. They are not legally definable or enforceable. What you, on one hand, and I, on the other, see as a mandate may legitimately differ. I’m not convinced that sending 48 SNP MSPs to Westminster creates any political mandate, but I consider it closer than any election result for the Scottish Parliament could be.

      2. The ability of the UK Parliament to legislate in a way that would be respected and treated as binding in Canada ended at the latest with the Canada Act 1982, but in practice significantly before. Can you give any examples, after the Statute of Westminster was passed? I mean, the UK Parliament could try, but the Canadians would just laugh at us – just as if we tried to legislate for the North American colonies lost by Lord North, or for the Republic of Ireland, or Hong Kong.

        As to “in the gift of Westminster”, s.29(1) (Legislative competence) of the Scotland Act 1998 (as amended) makes it clear that “An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.” and that means, inter alia, there is no power to legislate on “reserved matters” defined in Schedule 5 (subject to amendment by Order in Council), or in breach of the restrictions in Schedule 4.

        Most relevantly, paragraph 1 of Schedule 5 says “The following aspects of the constitution are reserved matters, that is … (b) the Union of the Kingdoms of Scotland and England … ”

        So it seems to me that unilateral legislation for Scottish independence, or legislating for a binding referendum leading to independence, would be prohibited.

        But I don’t see a specific provision saying that an “advisory” referendum, like the Brexit referendum, would not be permitted. As we saw then, putting the Genie back in the bottle might be just as difficult. There will be an interesting mix of legal and political issues along the way, but ultimately the law can be amended or interpreted so as to meet political requirements.

        How long can the UK government say, in effect, we don’t care how many Scottish people support independence because England and Westminster are in charge and we know best? As if Scotland were some sort of colonial outpost.

        1. This is, of course, the key point. It’s all very well for a UK government to say “You can’t have another referendum” but it’s not a good look when (a) a majority of Scots have voted for parties supporting a referendum; (b) the party in government has hardly any Scottish seats; and (c) the referendum supporting parties have a much larger share of the Scottish vote than the UK government party has of UK votes.

          Of course the current government doesn’t worry about how things look, but surely there will come a time when the chance to ‘get rid’ of those troublesome Scots while appearing to be democratic will be irresistible.

        2. Dicey’s “parliamentary sovereignty” analysis has been much criticised in Scotland over the years – think LP Cooper. But isn’t Dicey’s central tenet actually not “parliamentary sovereignty” but that one never knows when “Scotch” resistance is going to get serious [Law of the Constitution 8th ed p 33]. -one cant blame chancers for chancing their arm if the Scots fold at the first opportunity.

          I’d agree popular resistance, or perhaps laughter, would be the result of attempts by Westminster to legislate for Canada or Ireland. But could one say the same of the reaction of the Scots?

          As to whether Westminster is “sovereign” – mere assertion by the swimmer, does not make the breadth of breaststoke into a length of butterfly.

          e.g. Dicey acknowledged [LotC 8th ed p21] the intent of the union legislators to entrench certain provisions.
          He also acknowledged that the union parliament was a new entity, replacing both its predecessors, “though the fact is often overlooked” [p24].
          But a parliament created by statute, even a sovereign one is, necessarily, bound by the terms of the statute which created it [Bribery Commissioner].
          And if you say your parliament is an exception to the rule, what’s to stop me saying mine is to…..

          1. I should add I agree refusing a referendum looks terrible; I’m just sticking to principle.

            Say the SNP won a landslide majority (both votes and seats) and their manifesto said they would remove Trident from the Clyde, and increase VAT to 30%.

            Would they have a mandate to do either of those things? If NS asked BJ for a s30 order for either of those and he refused, could there be any legitimate outrage?

          2. “I’d agree popular resistance, or perhaps laughter, would be the result of attempts by Westminster to legislate for Canada or Ireland. ”

            What a pairing! It is astonishing that even to this day, the perception continues in Britain that Ireland is somehow linked to the UK.

            The Queen is head of state of Canada. Ireland on the other hand has no more constitutional connection with the UK than the United States does.

            I am reminded of Andrew Bridgen MP who was fairly recently of the opinion that as an Englishman he is entitled to an Irish passport. I would guess that he said it without caring whether it was true or not. He just knew its presumption would appeal to the Tory party faithful. The Empire is a state of mind.

        3. I think it must be true that the Scottish Government can consult on what constitutional future people want, and there is an attractive argument that this would extend to a “wildcat” referendum.

          But an unlegislated referendum would be completely unworkable (whether by government or private parties).

          First, who would pay for it? Government funding must be authorised by an enactment.

          Second, how do you control who votes without use of the electoral register and offences against voting more than once?

          Just a couple of the many issues that would arise.

  10. Comparing the situation in Scotland now with the earlier Westminster hung parliament, must be done while referring to at least two key points of context. Firstly, at that point, crucially the UK had already decided to leave by
    a) voting to hold a decisive referendum that the Cameron had offered, and then
    b) voting in that promised referendum to Leave.

    Whereas secondly, in the recent “once in a lifetime” (as the leader of the SNP said at the time), Scottish referendum, Scotland voted to stay in the UK and by implication accept UK majority decisions – eg to leave the EU.

    There is a strong argument in this context for not holding another Scottish referendum unless importantly there is sustained clear evidence that the Scottish electorate have changed their mind about such a prime constitutional matter. In spite of Nicola Sturgeon’s determined, focused, erudite insistence that another referendum should be held, such clear evidence is not present.

    Having said this, I can see also that there is a political argument strangely on both sides, for in fact holding such a referendum as soon as the initial pandemic fallout has passed and been addressed, however long that might take. In my view, the ‘no’ (to independence) camp would win again.

  11. Bojo will only grant a referendum if he perceives it to be in his interests. The Brexit situation (naturally) is completely different! The promise made to calm rebellious Scots last time out was that only a vote for union would guarantee continued EU membership of course (but the Tories had their fingers crossed behind their backs, so it doesn’t count).

    Frankly, it is impossible to see how an independent Scotland could flourish (in the EU) if the rest of the UK is outside it. I want to see the Scots remain in the union, but frankly, were I a Scot, I’d want out: the utter disrespect for Scotland (and the other devolved nations) from Westminster is shocking. The solution must be a federated UK with all members within the EU.

    1. The Scottish/English union has mostly been a happy one for the last couple of centuries. It would be a shame if some nationalist politicians managed to take advantage of temporary disaffection because of a temporary situation in Westminster, if that’s what it is, and so reduce the economic situation of the Scottish people. Arguably the imposed Brexit has already reduced their economic situation, but that’s not an argument for even larger damage.
      Ireland did not flourish outside the UK for about 70 years after its independence, despite the open border and (for some decades) common currency. Formerly Dublin had been the second wealthiest city in the UK. The immediate aftermath of independence was unpleasant indeed. That situation changed only when some Irish had an idea of how to take best advantage of being in the EU.
      But it is hardly surprising the Irish wanted to look after their own affairs, whatever the economic consequences, after several centuries of utter disrespect.
      On the other hand, it is a common view that Slovakia left Czechoslovakia because the local politicians wanted a better opportunity for corrupt advantage: there was no history of Czechs lording it over the Slovaks. They managed to seize the moment despite the population being largely indifferent. Fortunately it wasn’t long before the EU accepted them and reduced the economic cost of it; and the worst of the separatists were voted out of office before long.
      If they do leave, I was born in Scotland and hope that would be enough for a passport!

      1. “That situation changed only when some Irish had an idea of how to take best advantage of being in the EU.”

        The other side of that coin is that the situation only changed when Ireland was no longer subject to the whims of Westminster. Independent or not, prior to 1973 Ireland had in Britain a hugely dominant trade partner that could dictate economic terms.

        1. The Irish economy was in poor shape in the 1940s and 1950s; it was based on antiquated agricultural practices, with the UK as the main export market. Dr TK Whitaker, then Secretary to the Department of Finance in Dublin developed and published Economic Development as a formal government document in 1958. In 250 pages this foresaw how the Irish economy needed to change, the need for inward investment, and how vital the role of education and training was, with the latter emphasizing the success of the Swiss apprenticeship model. It was this vision that began Ireland’s transition to a modern market economy.

          1. Whitaker (a good Northern Irishman) certainly laid the foundations but whether much progress was actually possible without diversifying trade away from the UK is another matter entirely.

  12. In the “hung” parliament, the Tories not only didn’t have an overall majority, they lost seats. They relied on the DUP for Brexit, but N Ireland voted Remain.

    The loss of seats could have been taken as the electorate having second thoughts about Brexit; but Theresa May seems to have been driven by the Brexit Ultras and could not countenance this, therefore any question of a second referendum (on what Brexit would mean, rather than the principle) was off the table.

    Things are a bit different in Scotland; both the SNP and the Greens have a positive statement of intent to hold a referendum (or at least to try to get Westminster to agree). While the SNP are one short of an overall majority, with the Greens they have a comfortable majority.

    The “trying to get Westminister to agree” has unpleasant echoes of Ireland a century ago — not the War of Independence or the Rising — but the constitutional bickering with England seemingly reluctant to agree to “full” independence and insisting on the Crown playing a continuing role. (The Free State became a “Dominion” of the Empire/Commonwealth, with allegiance to the Crown.)

    So, in the event of a request for an independence referendum, will England still see itself as the superior partner in the union, regarding Scotland (like Ireland) as a junior, and “refuse permission”?

    Doesn’t this go to the heart of the “union”? England was always more populous and richer, but were these “unions” in 1707 and 1801 one of equals, a true partnership, or one of dominance and submission? English politicans do seem to view the relationship as the latter.

  13. I think your argument is entirely persuasive. However, there will be no need to concern ourselves with a referendum or the case for and against independence if the UK Government recognizes that it is time to reform the constitution so as to increase the powers of the Scottish Parliament and entrench them.

    Most Scots would settle for a better deal, I venture to suggest, but they are hardly likely to accept that the United Kingdom is now a state which is no longer a union based on consent.

    1. But what’s the point of the union if the Scottish Parliament is to be entrenched and have maximum powers. Is that not independence in all but name?

      1. You’ve gone right to the heart of it, JM. Entrenchment can be promised, but cant be delivered if the “parliamentary sovereignty” analysis holds (which I assume was your point).

  14. Stupid question from Germany.
    Is it true that for the Scottish election you use a different arithmetic than for a Uk wide Westminster election,
    So that it is actually almost impossible for party to get a Majority.
    Which if true would make the argument about a majority a bit muddy I guess

    1. Elections for the Westminster parliament use single-member constituencies with the winner of an election having a plurality of votes — the “first past the post” or “winner takes all” system.

      This method is used to elect 73 members of the Scottish Parliament. But, electors also vote for “Additional Members”. These are determined on a regional basis; electors vote for a party (list). There are 56 Additional Members.

      This system makes it hard, but not impossible, for any party to win an overall majority. Not only that, the system was specifically chosen by the Westminster (= English) executive so that the SNP would never be in a majority, and thus could not threaten independence.

      The SNP won 64 of the 73 constituency seats; in other circumstances this would be an “overwhelming majority”.

    2. It’s a bit like getting a hole in one in golf: not impossible but not a sensible standard to be held to.

      As I understand it, the electoral system was the result of an agreement between the then-dominant Labour Party in Scotland and the Scottish Liberal Democrats.
      It’s said number of constituencies elected by “first past the post” is greater than the number of “list” seats since Labour anticipated having a permanent lock on the bulk of the FPTP seats, but was prepared to have a quasi-PR system in order to lock the SNP out of power for ever -the LD tradition is Scotland being more towards the radical rather than “orange book,” and all the players were well-known to one another.

    3. The election system in Scotland is quite similar to the one used for the German federal elections.

      Each elector casts two votes – the first for a constituency representative elected by “first past the post”, and the second for a list that “tops up” the numbers from the first on a proportional basis – although the precise details of the proportional element (d’Hondt method versus Sainte-Laguë method) are slightly different.

      As in Scotland, there has only ever been one absolute majority in the German federal elections, for Adenauer in 1957.

      For example, the SNP just won 62 out of 73 constituency seats, but only 2 out of 56 from the list, to give them 64 in total, one short of an absolute majority. The Conservatives won 5 constituency seats + 26 from the list; Labour 2+20; the Greens 0+8; and the Lib Dems 4+0.

      Compare the 2017 German Federal elections (299 constituency seats, and 410 from the lists; 355 for a majority), when the CDU won 185+15 (plus 46+0 for the CSU); the SPD won 59+94; the AfD 3+91; the FDP 0+80; die Linke 5+64; and die Grünen 1+66.

      In Germany, the mixed results in 2017 ended in another Grand Coalition, whereas in Scotland I expect the SNP will continue to govern as a minority, with support from the Greens as and when needed.

  15. thanks for the reply
    so UK Gov members saying SNP has not won a majority so no new ref is really a bit rich.
    Btw does the UK media know this I haven’t reads one line about the difference in the electoral systems.

    1. The present Conservative (Tory) government at Westminster doesn’t want to risk an independence referendum in Scotland for fear it might succeed.

      Scotland still sends a number of Tory MPs to Westminster. Previously, Scotland sent a large contingent of Labour MPs there, thus enabling a Labour majority government. However, the SNP has very largely taken Labour’s place in Scotland; while it has a large number of MPs at Westminster, it’s not likely to want to “do a deal” with Labour. So, by preventing a referendum the Conservative party is attempting to continue its domination at Westminster. (New electoral boundaries would have given the Tories a “built in” majority, but have not been implemented.)

      Some in the media are aware of the different voting systems used across the UK; there are other systems used for local councils. In total, there are around 8 different systems for different purposes.

    2. It does seem a wee bit inconceivable that at least those Scots within the UK political media would be ignorant of the facts. [eg at network BBC the first five names to come to mind might be Kuennsberg, Marr, Wark, Fleming, Watson].

  16. Those commentators confidently asserting that Westminster approval is necessary for a move to independence may like to consider the formation of the First Dáil in Ireland in 1919. I am not recommending this kind of approach – indeed I think it would be catastrophic. But I think it is important to recognise just how high the stakes are. And Scotland even has its own Ulster in the form of the Protestants of the West of Scotland. Violence may be more importable than cheddar.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.