As of right now, the future of Humza Yousaf’s SNP government depends almost entirely on the vote of Ash Regan. The Tories, Labour, and the Lib Dems are raring for him to go, and the brutal and sudden approach he deliberately took to firing Green ministers Lorna Slater and Patrick Harvie has only ensured that they, too, will vote to bring him down. Together, these four parties control 64 votes, and there are only 63 SNP MSPs.
But if Yousaf manages to get one more vote and bring the total to a 64–64 tie, parliamentary rules count that as a victory for him. Barring unexpected developments, this leaves Regan—the sole MSP not yet committed to a position on Yousaf’s future—as Yousaf’s only hope.
This morning, Regan wrote to Yousaf with her demands.
OK, so, this letter is pretty vague. ‘[P]rotecting the dignity, safety and rights of women and children’ is a euphemism for Regan’s opposition to trans rights, but since everyone in Scottish politics is already talking about this issue all the time I will ignore it. Based on Regan’s previous statements, I think ‘providing a competent government for people and businesses’ basically means adopting a kneejerk protectionist stance, which (while it will inevitably be hugely damaging to Scotland’s economy and climate commitments) is relatively par for the course.
But Regan’s primary demand is independence for Scotland, and it is also her only demand that actually comes with a specific policy ask. Regan does not like Yousaf’s current approach to independence, and her concrete demand is that (in exchange for her support) Yousaf agrees to support her alternative approach, the ‘Scottish Parliament Powers Referendum bill’.
Being on Scottish politics twitter over the last couple of days, it has become pretty clear that nobody has paid much attention to Regan’s proposed bill until this point and don’t really know exactly what she is asking. So I feel it is incumbent upon me to tell you: Regan’s bill is the stupidest proposal imaginable.
For non-Scottish readers, a bit of context might be helpful. In 2014 the Scottish Government held a referendum on independence, having been given permission (in the form of a ‘section 30 order’) from the UK Government. In 2021 the government tried to hold another one, but the UK Government wouldn’t give them the legal permission slip, and the Supreme Court made it clear that without a ‘section 30 order’ no referendum could be held; the UK Government must greenlight any future referendum on independence.
This has left Scottish nationalists in a bit of a bind. Regan, however, thinks she knows how to get out of it. ‘How about’—one can imagine her asking—’how about having a referendum on having another referendum?’
This is not quite what her Scottish Parliament Powers Referendum Bill proposal says, but it is pretty close. Regan wants a referendum to be held on the question:
Should the Scottish Parliament have the power to negotiate and legislate for Scottish independence?
One might wonder, ‘wouldn’t the Scottish Government need a permission slip for this referendum as well?’ Well, maybe! That is a distinct possibility. In that case, the whole rigmarole of the 2021 dispute would re-emerge, together with all the concomitant frustrating legal and political fights, which will suck all the oxygen out of the room in Scottish politics—except that the fights won’t be about the actual meaningful question of independence, but about a higher-level, meta-procedural issue. How fun!
But Regan has a theory that this referendum doesn’t need a permission slip.
You see, the Scottish Government is (of course) allowed to ask the UK Government for independence, even if the UK Government is also allowed to say ‘no’. And since it’s fine to ask the UK Government for independence, it should be fine to ask the Scottish people whether you should ask the UK Government! As Regan’s formal proposal document put it, the Supreme Court ‘did not prohibit the Scottish Parliament from holding referendums on matters that are within the competence of the Scottish Parliament’. Translating the legal jargon: the Scottish Government doesn’t need permission to hold a referendum on something they are already allowed to do.
This is, of course, an argument that the referendum will be allowed because it is pointless.
Now, even with that, it’s still not 100% clear to me that this argument is right. To massively oversimplify the worry, some things that seem legally OK might actually need permission from the UK Government if they would have political ramifications on the devolution settlement; this was a consideration that the Supreme Court noted in its 2021 decision on the last referendum proposal.
The thing is, Regan knows this. She quotes the relevant section of the court’s judgment in her proposal document, and while her interpretation is a bit tendentious she basically gets the jist of the problem:
On the draft independence referendum Bill that the Scottish Government wanted to progress, the Court ruled that even if a referendum had ‘no immediate legal consequences’ it would still ‘be a political event with important political consequences’…
So her theory must be that her referendum would not have the same ‘important political consequences’ as an independence referendum.
In other words: either this referendum will have significant political and legal implications, in which case it won’t be able to take place; or it will be able to take place, precisely because it will have no significant political or legal implications.
So the best-case scenario for Regan’s plan is: the referendum is held, her side wins, and then the Scottish Government still has to ask the UK Government for permission. Except maybe the UK Government might be a bit more inclined to say ‘yes’?
Of course, there is still every possibility that they will say ‘no’. (Maybe the referendum turnout is really low because it is so fucking stupid, and the UK Government decides its results aren’t representative. Or maybe they just say ‘nuh-uh’ to mess with Scottish nationalists.) Or else, they might say:
OK, you’ve shown that the majority of the Scottish people want the question of independence to be re-opened. We accept that. But surely it’s better to have a full and explicit referendum on that question, like you’ve been asking for for a decade, rather than just handing the powers over to parliament?
After all, lots of people who voted ‘yes’ in your referendum might not actually support independence; they just want the question re-opened. And lots of people who vote for nationalist parties in elections might not want independence either—they just like the other policies of nationalist parties. We should give the people of Scotland a clear and explicit choice, like we did in 2014 and like you have been asking for ever since.
After all, nobody wants to be the Scotland Secretary who lost Scotland; why hand over the power of independence directly to a hostile, nationalist government, when you could drag it out a bit longer? So—again—even in the best case scenario for Regan, the UK Government can just call another referendum.
So Regan is not quite proposing a referendum on having a referendum. It’s worse than that: she is proposing a referendum that maybe, if all goes well, leads to another referendum.
Regan’s plan, as far as I can tell, is purely just a fetishisation of the referendum. She was told so many times that a referendum would win Scotland its independence that she adopted the mantra without any of the concrete theory of political change underlying it. It’s a bit like the old Father Ted joke: ‘is there anything to be said for having another referendum?’1
You can read Regan’s full proposal here if you want to see her talk about her plan in her own words; make sure I’m not misrepresenting it. Crucially, any step of the plan laid out in this document might fail:
The referendum might not be allowed.
If it’s allowed, Ash Regan’s side might lose.
If Ash Regan’s side wins, turnout might be so low that the UK Government ignore the result.
If turnout is high, the UK Government might choose to ignore it anyway.
If the UK Government doesn’t ignore it, they might put off responding for so long that the balance of power changes in Scotland.
If the UK Government responds immediately, they might call a second referendum that the unionist side wins.
All of these are distinct possibilities, and any of them would be a major blow to the fortunes of Scottish nationalism. It is far from a certainty that Regan’s hare-brained, short-term, politician’s fallacy scheme will actually advance her political cause. But what is a certainty is that it will rake up old disagreements, ramp up the toxicity of Scottish politics, make desperately-needed policy changes even less likely, and generally make everyone’s lives a bit more shit.
If you’re a Scottish nationalist, you might think short-term shittiness is a price worth paying for the long-term benefits of independence. But it is most certainly not a price worth paying for a plan that will fail to advance the cause of independence. This latter is the choice that Regan is offering.
Is Humza Yousaf desperate enough that he will back Regan’s plan just so his lame-duck government can drag itself out for a little longer? Well, we’ll just have to wait to find out.
Yes, I am aware of the irony, the creator of Father Ted is currently politically aligned with Regan.