The Scottish Government has published a draft bill setting out plans for an independence referendum, opening a constitutional contest with Westminster barely three months after the SNP won a fifth term at Holyrood.
The publication, confirmed this morning, is the first concrete step towards a second referendum since the SNP's latest election victory in May. John Swinney was re-appointed first minister on 19 May, a week after the then prime minister Sir Keir Starmer agreed on 12 May to discuss the constitution with him.
What has changed since those conversations is the occupant of Downing Street. Sir Keir has gone, and the question of how to respond to Holyrood's gambit now lands on the desk of Andy Burnham, a prime minister still in his first weeks in office. Mr Burnham has spent his career arguing for the redistribution of power within the United Kingdom, but he has never committed himself on the referendum question itself.
What the draft bill can, and cannot, do
A draft bill is a proposal, not a trigger. Publishing one begins a legislative process at Holyrood and signals intent, but it cannot by itself deliver a lawful referendum. The power to transfer the legal authority for such a vote rests with Westminster, through what is known as a Section 30 order, the mechanism used before the 2014 referendum. Without it, any bill passed at Holyrood would face an immediate legal challenge.
That is the ground on which the coming argument will be fought. The Scottish Government will argue that a fifth election victory for the SNP constitutes an unanswerable mandate. Opponents will reply that the union is a reserved matter and that the consent of the United Kingdom government is not a courtesy but a constitutional requirement.
Mr Burnham's initial response has been to widen the table rather than narrow it. On 26 August he called for a summit of the Welsh, Scottish and Northern Irish first ministers, and on 27 August he made his first official visits as prime minister to Northern Ireland and to Wales, travelling to Port Talbot accompanied by the Welsh Secretary, Stephen Kinnock.
The Constitutional Landscape
- The draft referendum bill was published at Holyrood on 28 August, three months after the SNP's fifth election victory.
- John Swinney was re-appointed first minister on 19 May; Sir Keir Starmer agreed on 12 May to discuss the constitution.
- A Section 30 order, transferring the legal power to hold a referendum, requires the consent of Westminster.
- Andy Burnham has called a summit of the Welsh, Scottish and Northern Irish first ministers, and visited Northern Ireland and Wales this week.
- Plaid Cymru's Rhun ap Iorwerth, First Minister of Wales since May, has confirmed raising Welsh independence in a call with Sir Keir Starmer.
A changed union
The union Mr Burnham must manage is not the one his predecessors knew. In Wales, Plaid Cymru's Rhun ap Iorwerth became First Minister in May and has confirmed that he raised Welsh independence in a call with Sir Keir Starmer. Two of the four nations are now led by parties whose founding purpose is independence from the rest. Northern Ireland, where the Prime Minister began his visits on Thursday, has its own long running debates about identity and the union, and will watch the Scottish argument closely.
The options before the Prime Minister are familiar: refuse and risk entrenching support for independence, engage and risk being drawn into a negotiation he did not choose, or attempt to change the subject with an offer of further powers. His early emphasis on a four nation summit suggests an instinct for engagement, but no formal position has been set out.
A draft bill cannot break the union, but it can begin the argument that might. The last referendum campaign transformed Scottish politics for a generation. Whether a second ever takes place will depend on a negotiation between two governments with mandates pointing in opposite directions, and on a prime minister who has built his career on the promise of holding the country together.