I fundamentally believe that neither Theresa May or Nicola Sturgeon want another independence referendum right now. The trouble is, to shore up their votes, they are playing a dangerous game of Russian roulette.
It's in May's interests to have a strong SNP presence in the UK. It snookers the Labour Party whilst helping to drive English voters (according to Pete Wishart) to the Tories.
Sturgeon on the other hand needs the prospect of a further independence referendum to keep her rank and file on the boil. Imagine, for example, her supporters started to look at the SNP's less than left wing policy agenda.
Ideally both sides need the prospect of an independence referendum without the downside of actually having one. Unfortunately such balancing acts usually end up collapsing in on one another, so it's quite possible we could stumble into one.
The case for a referendum will be a mix of legal and moral questions.
A legal referendum
The first obvious point to note is that there is only one legal route to a referendum and that is though a Section 30 order from the UK government. Without one there can be no legal referendum on the Union. It is arguable (and I would certainly argue the case) that the Scottish Government could call an informal ballot (a big opinion poll) without UK approval, but Unionists would likely boycott it so it would just continue the impasse.
Better then (as I suspect the SNP are calculating) to ask for a Section 30 order (as the Scottish Government's consultation says it will) and then have May refuse it. This would result in much weeping and gnashing of teeth as the SNP scream about the subversion of democracy in Scotland etc etc etc.
The UK government could of course be so monumentally stupid to walk straight into that trap, and I genuinely wouldn't put it past them. However I suspect that the more likely tactic will be that they will delay any Section 30 until after Brexit. That will give both sides something to argue over but will probably bore the majority of the population whilst exciting both sides on social media.
However it is now effectively agreed by both sides that legally there is only one route to a referendum.
Therefore we are talking about the moral case for a mandate on another independence referendum. This really is not clear at all.
Is there a mandate?
Much has been said of Ruth Davidson's comments in 2011 on the subject of "earning" a mandate.
“You don’t get a referendum for free, you have to earn it. So if the Greens and the SNP – and the SSP or any of the other parties who’ve declared an interest in independence – get over the line and can make a coalition, make a majority, get the votes in the Parliament, then they’ll vote through a referendum, and that’s what democracy’s all about… it’s perfectly simple”
Wings sent his troops over the top with this one, without thinking it through as usual.
This was Davidson's statement at a time when both the SNP and the Green Party has a clear and unambiguous reference in their manifesto to calling for an independence referendum in the next Parliament. If both sets of MSPs had such a mandate and they could form a majority on the issue then they had clearly "earned" the right to an independence referendum.
Whilst Westminster could theoretically block a referendum, they certainly wouldn't have a moral case to do so and frankly would look very shoddy in those circumstances.
So the question is do the SNP and the Green have an explicit commitment to an independence referendum in their 2016 manifestos?
The SNP commitment
First off the bat, this isnt a commitment. It's an expression of a right which the Scottish Government argued that the Scottish Parliament held. However it does explicitly list the circumstances of Brexit and Scotland voting against it, and it uses the expression "or" rather than "and" which was probably debated long into the wee hours of the night.
However in reality for this to be a manifesto commitment the Brexit result would have led to a new independence referendum no questions asked. The fact that after Brexit the SNP are arguing that it is still conditional is rather negating the point that this is a democratic mandate for an independence referendum.
All that being said from a reasonable standpoint it would be difficult to argue that this is not a mandate for 62 of the MSPs in the Scottish Parliament to back another referendum.
The Green's commitment
So with 62 MSPs in the bag to vote for another independence referendum can the Greens demonstrate a mandate to get them over the line for a majority and "earn" that referendum?
First off let's be clear the Greens support independence, there is no doubt about that and their manifesto clearly says so.
However the SNP manifesto in 2015 stated clearly that the SNP continued to think independence was the best for Scotland but noted that their election then did not mean another referendum (page 10 of their manifesto).
So it is quite possible to support independence but not regard your election as a trigger for another independence referendum.
The Greens also had a conditional support for a further independence referendum.
Citizens as legislators.
Citizens should be able to play a direct role in the
legislative process: on presenting a petition signed by an appropriate number
of voters, citizens should be able to trigger a vote on important issues of
devolved responsibility. As we proposed on the one year anniversary of the
Independence Referendum, this is the Scottish Greens’ preferred way of
deciding to hold a second referendum on Independence. If a new referendum
is to happen, it should come about by the will of the people, and not be driven
by calculations of party political advantage. In such a referendum the Scottish
Greens will campaign for independence.
Here we see quite a different approach to obtaining a mandate but it is one that binds (from a moral point of view, as that's what we are talking about here) the 6 Scottish Green MSPs if they are to support another independence referendum. The Greens explicitly state that "this"(in green above) is their preferred way of deciding a second referendum: a petition presented to Parliament.
There is no caveats to this and no other alternative triggers listed, no reference to Brexit, to Trident renewal etc. Unlike the SNP the Greens have simply specified a single set of circumstances that can trigger another referendum and that is a petition.
They also out reference their proposal in September 2015 which tells us how big this petition needs to be:
The emphasis in the above is mine.
So with a petition listed in the manifesto as the only noted trigger for an independence referendum and the reference to one signed by 1 million people on the electoral register, the trigger and mandate is very clear.
Clearly there is a "for example" in the above statement and some Greens seem to want to use that as a get out clause for the 1 Million hurdle. The trouble is the statement notes that a petition is an example of a citizen-led initiative, there is no example around the 1 million number. Additionally there is no ambiguity in the manifesto about the trigger being a petition.
So we have two facts to deal with:
- the manifesto explicitly calls for a petition as the preferred method of a trigger,
- that manifesto explicitly references the Green Party statement which notes a 1 Million threshold for such a petition with no conditionality on the number.
The only other out-clause is over the word "preferred".
Now clearly preferred gives rise to alternative methods of triggering a mandate for an independence referendum, however the fact that there are no other methods listed in the manifesto negates this possibility when looking for a mandate.
It is clear that a petition is required and with no conditionality around the 1 million number then that is the hurdle to complete. Without it the 6 Scottish Green MSPs do not have a mandate to support another independence referendum.
Is there a moral case for another independence referendum?
Right now no, but that doesnt mean there couldn't be.
If I were in Westminster right now I would be setting out that they expect the MSPs to be true to the manifestos they were elected on if they want to build a moral case for another referendum.
There are two ways of doing this.
Firstly Sturgeon could resign and seek a mandate from the country (alongside the Greens with a revised manifesto) - this would be technically possible despite the fixed term nature of the Scottish Parliament.
Or secondly, and more easily, the Greens could go and get their 1 Million signatures to provide them with a mandate.
The question is why wont they?
If you want a moral case for another referendum then surely it needs to be watertight. It can be based on 6 MSPs elected on a specific mandate pretending that manifesto no longer exists and 'not political parties carving up a deal behind closed doors'.