The SNP returned 64 MSPs in the Scottish Parliament election, and formed a minority government, which will again look for support from other parties to pass legislation.
Since the 6 May election, an argument has been brewing over the SNP’s right to pursue a second independence referendum, and whether they have a ‘mandate’ for it.
Ferret Fact Service looked at the mandate and what it means for Nicola Sturgeon’s plans.
What is a mandate?
Usually, a mandate refers to the authority to carry out policy. This is widely regarded as being given by the electorate to the winning party in an election.
In Scotland, a political mandate is effectively given to the party who wins the election and forms the next government. However, because of Scotland’s electoral system, it is less likely for a party to win an overall majority of seats, so all but one government has had to rely on support from another party.
The first Scottish government was a coalition between Scottish Labour and the Scottish Liberal Democrats, which continued until the SNP won the most seats in the 2007 election and formed a minority government.
The only single-party majority in the Scottish Parliament’s history was won by the SNP in 2011. Since 2016, the SNP has governed as a minority administration. In 2021, the party is reportedly in talks for formal cooperation with the Scottish Greens.
To form a government, a party does not require a majority of votes cast or a majority of seats in the Scottish Parliament. If the largest party is in a minority, it must rely on the support of other parties to get its legislative agenda through parliament.
What did the SNP say about a second independence referendum before the election?
The party was explicit in its campaigning before the election that it would seek a second referendum, should it win the election.
Its manifesto said: “We are seeking your permission at this election for an independence referendum to be held after Covid”, although it did not define when this would be.
The document stated this would be “within the next Parliamentary term”, aiming for the next two and a half years.
Independence formed a central part of the debate during the election campaign, and both the SNP and Scottish Conservatives made the constitution a main part of their prospectus.
What claims have been made about the SNP’s mandate?
A number of politicians made statements about the SNP’s mandate, including UK Conservative minister Michael Gove. A similar claim was also posted by Scottish Conservatives MSP Murdo Fraser.
He said: “If you look at the votes cast in constituencies in Scotland, more people voted for parties that were opposed to an independence referendum than those that might entertain that prospect”.
Focusing on constituencies only is misleading, as the Scottish Parliament voting system includes both constituencies and regions which elect MSPs. Only the SNP and Lib Dems gained most of their seats through the constituency, with the Scottish Greens, Scottish Labour and the Scottish Conservatives gaining just seven of their combined 61 seats via constituency votes.
The number of constituency votes secured in a Scottish election is not reflective of a party’s mandate.
At the election, voters backed pro and anti-independence parties fairly equally.
Parties backing a second referendum included the SNP, Scottish Greens, Alba Party and Scottish Libertarian Party.
Opposed to the second referendum were Scottish Conservatives, Scottish Labour, Scottish Liberal Democrats, All 4 Unity, and Scottish Family Party and a number of other smaller parties.
There were 2,694,290 votes for parties backing independence or a second referendum across the constituency and regional vote. Parties against a second indyref received 2,694,731 votes. We have excluded non-party affiliated candidates and parties without a clear stated position on independence.
It should be noted that non-party affiliated candidates gained more than 11,000 votes across the constituency and regions.
We cannot be sure that everyone who backed a party agrees with their platform in totality, so these numbers are not necessarily reflect support for or against a second independence referendum.
It also does not show the mandate that a party has to pursue its electoral promises.
What do the public think about the SNP’s mandate for independence?
According to a recent poll from Savanta ComRes, the Scottish public is split on whether the SNP has a mandate for a second referendum.
The survey, which was published on 16 May, showed 40 per cent of respondents saying the SNP had a mandate to pursue a second vote and 40 per cent saying the party did not. 19 per cent of those surveyed answered ‘don’t know’.
Does the SNP have the power to call a second referendum?
While the SNP campaigned with a promise to hold a second referendum, there is a question as to whether the party has the power to do so.
Within the current devolution arrangement, the right to grant a referendum lies with the UK Parliament.
This means that Nicola Sturgeon has to ask permission through a ‘Section 30 order’. This refers to Section 30 of the Scotland Act, which allows Holyrood to pass legislation that is usually reserved to Westminster.
The requirement for a Section 30 before holding a referendum has yet to be tested in court, and the Scottish Government has not conceded that it is the only way to progress a referendum.
The 2014 referendum took place after a request was granted by then-Prime Minister David Cameron. He and former First Minister Alex Salmond signed the ‘Edinburgh Agreement’ in order for Scotland to have a legal referendum.
The Scottish Government requested a Section 30 order in 2017 from Theresa May, but the plan was rejected. Since becoming Prime Minister, Boris Johnson has also rejected a request from the First Minister.
With this in mind, the SNP has set out a ‘roadmap’ for a second referendum. Their 11-point plan states that any referendum “must be beyond legal challenge to ensure legitimacy and acceptance”.
In the plan, another request for a Section 30 will be made, and the party will attempt to pass a bill at Holyrood for a referendum to take place after the pandemic. The aim of this would be to force the hand of the UK Government, who would either have to acquiesce to a second referendum, or legally challenge the Scottish Government in court.
While we cannot tell the outcome of any legal challenge to a referendum called without permission from Westminster, a number of experts have said the matter has yet to be legally settled.
