THE outcome of the legal showdown on indyref2 does not eliminate the risk of a continuing political stalemate between Holyrood and Westminster, a leading expert on Scottish independence has said.
Anthony Salamone, the director of the Edinburgh-based political analysis firm European Merchants, has warned that whatever the Supreme Court’s ruling on whether Scotland can hold a referendum on independence, there is no guarantee it will settle the question in a concrete way.
In a blog post, the political scientist said even if judges ruled Holyrood was able to conduct a referendum, its legitimacy would be threatened by the risk of widespread boycotts by Unionists which would make it possible for Westminster to ignore the result.
The risk of having an “empty referendum”, according to Salamone, is that simply allowing a referendum to go ahead does not mean its results will be representative or impossible for the UK Government to ignore.
He wrote: “Say the referendum does indeed happen in October 2023. The referendum campaign and wider debate are remarkably one-sided, and somewhat void, as only pro-independence voices participate for the most part.
“On polling day, turnout is severely low (say 45% at best), as large numbers of voters skip the contest.
“The referendum result is an 'overwhelming' majority for independence, as a result of the boycott by the pro-UK side.
“The UK Government declares that it takes note of the result, but it does nothing. The Scottish Government seeks to open negotiations with the UK Government on making Scotland an independent state, but the UK Government declines.”
His hypothetical also assumes the international community would not put pressure on the UK Government.
The Catalonian government had a “wildcat” referendum about secession from Spain in 2017, which was declared unconstitutional by the Spanish courts and resulted in the dissolution of the Catalan parliament which approved the referendum.
Despite the controversy around the poll, there were few calls among the international community for the Madrid government to respect the result of the vote – which was mostly boycotted by Spanish nationalists – and Catalonia remains part of Spain.
Salamone also said that if the Supreme Court did find Holyrood could hold a referendum without Westminster’s permission, the UK Government could in theory pass new laws or change existing statutes to specifically outlaw this outcome.
Such a move might be “socially disapproved or politically unwise”, he said, adding: “It would be perfectly possible nonetheless."
He said any “viable pathway to independence” would need governments in Edinburgh and London to work together, which was unlikely given the hostility between the two administrations at present.
The constitutional showdown was symptomatic of the ill-feeling between the two governments, Salamone added, saying no outcome would resolve the political issues around a referendum, even if they solved a limited legal question.
He wrote: “In practice, the question is whether or not the Scottish Parliament can underwrite an independence referendum without the endorsement of the UK Government (or UK Parliament, as required).
“The Supreme Court may answer the question in the reference, but the court has neither the power nor remit to resolve the entirely political dispute between the Scottish and UK Governments over holding a new referendum.
“While some observers may be captivated by the prospect of the judiciary considering and ruling on (one aspect of) the independence referendum dispute, in truth, this case represents a failure of politics – the failure of the Scottish and UK Governments to find some resolution to the matter of a future referendum."
