Iain Macwhirter: Independence referendum won't happen because neither side wants one

Curiously, the expectation of a referendum seems to be greater in Westminster than in Holyrood. We've been hearing muffled cries of panic from Whitehall for months. Former Cabinet Office mandarins like Ciaran Martin insist that following this victory for the parties of independence there is “no democratically legitimate basis to refuse a referendum”. Boris Johnson is still minded to say “now is not the time”, but his constitutional insecurity is demonstrated by the fact that he's afraid to show his face in Scotland to defend the Union at this critical juncture.

There is talk of a court challenge against the SNP's forthcoming independence bill. That's if the Scottish Government doesn't get there first. There's also going to be “billions” on road and rail spending with a Union Flag on it – even a “fixed crossing” to Northern Ireland, or so we're told. The Internal Market Act will allow the UK Government to spend over the heads of Holyrood and win hearts and minds. Well, perhaps.

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Yet curiously, Nicola Sturgeon has insisted that this election “is not about independence”. The very idea! It's about her “sensible leadership” and recovery from Covid, under the only political leader who seems to want the job. A referendum will not happen until “the crisis is over”, which could be many years since the economic Covid crisis has yet to begin.

This may seem like a remarkable about-face for the SNP leader. For the past two years, she has talked of little else but a referendum on independence. Even Covid was expressed in constitutional terms: “An independence referendum is an essential priority,” she said repeatedly, if Scotland was to build back better after the pandemic.

As recently as November, her Westminster leader, Ian Blackford, insisted that there would a referendum “next year” by which he meant 2021. The Constitution Secretary, Michael Russell, said in January that the referendum would happen by Christmas, with or without a Section 30 Order from Westminster. “The Franchise Act was approved last year,” he said, “so the nuts and bolts are there”.

But if tomorrow's election is really all about “seeking a clear endorsement for a referendum on independence” as Ms Sturgeon told parliament in September, you might have thought it would be right up there, centre stage. Yet two words absent from the SNP leaflet that came through my door last week were “independence” and “referendum”. It seems it no longer regards it a necessary precondition for Covid recovery or for keeping Mr Johnson's grasping Brexit hands off the fragile powers of the Scottish Parliament.

The UK Government regards all this as devious down-playing of indyref rhetoric, all the better to propel Scotland into holding one. On Saturday, it thinks, she will suddenly declare that this election had “of course” been about an independence referendum, and that the mandate for holding one is now unanswerable. Ms Sturgeon will no doubt say something like this, but I don't think that means there will be a referendum on the timescale her minions had been suggesting. Ms Sturgeon isn't a loser, and her recent silence on crucial post-Brexit issues of border, currency and debt betrays her lack of confidence in winning any early referendum.

Read more: Sturgeon’s border problem could possibly kill Yes vote stone dead

The First Minister made clear this week that she favours turning indyref2 into a battle in the courts. When “this crisis is over” Holyrood will pass a bill declaring a referendum and then defy Westminster to strike it down. Actually, it doesn't have to because no act of Holyrood, especially one on the constitution, can pass without the express endorsement of the UK Parliament.

It was clear in the Miller case in 2017 that the UK Supreme Court, which would ultimately decide this matter, takes a maximalist view of parliamentary sovereignty. It believes that Westminster can safely ignore any act of the Scottish Parliament. The Sewel Convention, which supposedly requires Westminster to consent to acts of Holyrood, is just that: a convention. The constitution is one of the reserved powers retained at Westminster under the 1998 Scotland Act.

In response, the Scottish Government's lawyers will argue that, while Holyrood cannot legislate for a legally-binding referendum on independence, it can legislate for and hold a consultative referendum. Ms Sturgeon has long accepted that a full-fat referendum would require a Section 30 Order from Westminster, but an indy-lite plebiscite, just asking the views of Scottish voters, is probably within Holyrood's powers. Local authorities are empowered to hold referendums on water privatisation and road pricing, so why shouldn't Holyrood?

Fighting a phoney war about a referendum that will never happen might suit both sides

Whether she would actually want such a non-binding referendum is of course another matter. I seriously doubt if she would because it would likely be meaningless. Since it carries no constitutional weight, most unionists would likely boycott it. It would be like the 2017 Catalonian referendum in which 92 per cent voted Yes on a 43% turnout. It might carry even less meaning than a series of opinion polls, which are probably a more accurate reflection of what Scotland actually thinks.

So why bother with pursuing this through the courts? Well, perhaps because it would be a way of parking the whole independence issue. Indeed, fighting a phoney war about a referendum that will never happen might suit both sides. Passions would overflow in the synthetic world of social media while lawyers exchanged abstruse formulations of a problem that doesn't actually exist about a referendum that would never happen.

It's something a French post-modernist, like Jean Baudrillard would instantly recognise: a meta-battle fought over signs and signifiers of independence rather than self-government itself. A simulacrum of political reality. Meanwhile, life goes on until Ms Sturgeon departs to write that book she has promised.

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