Despite what the SNP and its supporters insist, Nicola Sturgeon did not ‘announce’ a second referendum on independence today. Far from it. Her statement to the Scottish parliament quietly accepted that a referendum is highly unlikely to take place on 19 October next year.
The 2014 referendum – an act of self-determination that inconveniently produced the wrong outcome for the SNP – was an agreed plebiscite. All parties and Scotland’s government agreed it should take place and that its outcome would be politically, if not legally, binding. This is still the path Sturgeon would prefer.
Holding such a referendum, however, requires a section 30 order by the British government, which accepts the Scottish parliament’s right to legislate on an otherwise reserved matter. At present, there is no indication that Boris Johnson, or any plausible replacement, would contemplate that. Sturgeon may have a plausible case for demanding another referendum, but the British government has an equally compelling case for refusing it.
Any referendum bill without Westminster’s consent would be subject to a lengthy legal challenge. Accepting this, Sturgeon has asked the Lord Advocate to file papers with the Supreme Court to test the Scottish parliament’s legal competence on this matter. It is a form of getting your retaliation in first.
Sturgeon probably accepts that the most likely outcome of will be that the Supreme Court rules that the Scottish government’s proposed referendum impinges upon a reserved matter – the British constitution – and is consequently ultra vires: in other words, invalid.
Her strategy is therefore two-pronged. Perhaps the court will agree with her that the Scottish parliament does have the ability to legislate on this matter. If so, full speed ahead to a referendum next year.
But Sturgeon is also busy preparing the ground for what happens if the court agrees with most constitutional lawyers that the Scottish parliament does not have the unilateral right to legislate on a reserved matter in this fashion.
It is important to note that Sturgeon does not propose a ‘wildcat’ or ‘advisory’ or ‘pretend’ referendum if the Supreme Court rules against her. She recognises that as the road to nowhere it truly is. Scotland is not Catalonia and she has no desire to emulate the mistakes made by Catalan nationalists in their own fake referendum.
Instead she hopes to use Westminster and judicial stubbornness as leverage to push for independence harder. Judicial ‘clarity’ will end any notion of the United Kingdom as ‘a voluntary union of nations’ or any kind of ‘partnership of equals’. Scotland, in this view, would be unjustly imprisoned with no legal means of appeal, let alone escape. ‘There would be few stronger or more powerful arguments for independence than that’, Sturgeon argues.
In those circumstances, the SNP would fight the next UK general election on the same basis it always fights general elections: ‘Should Scotland be an independent country?’ This would, she says, be a ‘de facto referendum on independence’.
An SNP victory in that election would then be considered a mandate for independence. The SNP used to argue that winning a majority of Scottish seats in a Westminster general election was grounds for opening independence negotiations.
Will that wash? I’m not yet convinced it will. Would the Scottish people swallow the idea that the way round the referendum problem is to settle the issue without a referendum?
More probably, that kind of result would be used to put more and more pressure on the British government to accept the time for another referendum had come. The real message of Sturgeon’s statement this afternoon, then, was not so much ‘now is the time!’ but ‘of not now, when?’ and, even more importantly than that, ‘if not now, how about at some moment in the future?’. It was a reminder that the question cannot be delayed forever. It must be settled at some point.
But the important thing to note is that the logic of Sturgeon’s statement assumes that the moment for settling Scotland’s national question now lies beyond the next Westminster election, not before it.
This is prudent but also a case of Sturgeon being forced to make the best of a bad job. Lacking the means to force a referendum next year she must instead play a much longer game. There is little genuine enthusiasm for a referendum in 2023 but an acceptance that – weary or excited – there may, or even must, be one at some yet to be determined point in the future.
A referendum next year is highly improbable; a referendum at some point in the next dozen years is highly likely.
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