Iain Macwhirter: The SNP are beginning to realise that Nicola Sturgeon's legal route leads nowhere fast

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First Minister Nicola Sturgeon delivers a statement to MSPs in the Scottish Parliament, Edinburgh, on her plans to hold a second referendum on Scottish independence before the end of 2023. Picture date: Tuesday June 28, 2022. PA Photo. See PA story
First Minister Nicola Sturgeon delivers a statement to MSPs in the Scottish Parliament, Edinburgh, on her plans to hold a second referendum on Scottish independence before the end of 2023. Picture date: Tuesday June 28, 2022. PA Photo. See PA story

There was jubilation in the nationalist movement on Tuesday after Nicola Sturgeon unveiled her new route map to independence. Some thought it was a brilliant legal coup, front-loading the Supreme Court with the draft independence bill. About time, said frustrated Yessers. Others thought it amounted to a threat of a unilateral declaration of independence if Westminster does not relent.

It turned out that it was neither of these things. This was yet another deferral – a more imaginative one perhaps, but a deferral nevertheless. The independence movement this weekend is back where it started. There is very little chance of chance of a referendum on October 19, 2023.

It was always a strange idea to use the Supreme Court of the United Kingdom to facilitate the break-up of Britain. It may be chaired by a Scot, Lord Reed, but the court is not able to adjudicate on politics, only the law. The law, as laid out in the Scotland Act of 1998 is clear: the constitution is a reserved matter for Westminster.

If the court agrees to consider the matter at all – and it would be unusual for the court to rule on a hypothetical question posed by a bill which has not yet gone through the Scottish Parliament – it must surely rule that the Scottish Parliament can do nothing that might have an impact on the existing constitutional arrangements of he UK.

Courting drama

IT is perhaps conceivable, just, that the court might say that the Scottish Parliament has the right to seek a test of opinion, a big opinion poll, rather like the 1994 Strathclyde referendum on water privatisation. But that would be pushing it. The fact that it is a “consultative” referendum that is being sought by the Scottish Government is irrelevant. As Nicola Sturgeon herself made clear, the 2014 and 2016 referendums were also consultative. The UK Parliament had to pass an Act to implement the Leave vote. If Scotland had voted Yes in 2014, the same thing would have applied.

Under the section 30 Order, negotiated in the Edinburgh Agreement in 2012, Alex Salmond had an assurance from the UK Government that the result of this consultation would be honoured. But that just underlines the extent to which calling an independence referendum is solely the responsibility of the UK Parliament.

As the court has repeatedly said in recent Brexit rulings, all acts of the Scottish Parliament have to be ratified by Westminster, the sovereign Parliament of the UK. There is zero chance of MPs voting for it. Labour are as opposed to a referendum as are the Conservatives. Sir Keir Starmer is desperate to avoid any suggestion that he is in bed with the SNP. So this is a dead end.

‘Imprisoned’?

MS Sturgeon made clear that it would be intolerable for Scotland to be “imprisoned” in a supposedly “voluntary Union” from which there is no legitimate democratic route to leave. These were strong words. The implication, as many nationalists took it, was that there would be a case for extra parliamentary action, though the FM said no such thing.

What she did say is that the 2024 General Election would become a “de facto referendum”. Her deputy, John Swinney filled in the dots by saying on Good Morning Scotland that a majority of seats in that election would be a mandate to begin negotiations on leaving the UK.

Unfortunately, he hadn’t listened, for the First Minister had meant a majority of votes, not seats.

It was an understandable confusion. In the days before devolution, it was taken as read that if the SNP won a majority of seats in a General Election that would be seen as a mandate for independence – a proper one.

It’s hard to remember just how recent the SNP’s electoral success really is. Until the late 1990s, the prospect of the SNP winning a majority of seats in an a General Election was about as likely as the Monster Raving Loony Party forming a government in Westminster.

Even in 2010, the SNP won only six Scottish seats out of 59. It was Salmond’s genius to somehow seize a unique set of circumstances in the Scottish Parliament election the next year to deliver a landslide result.

The UK Government was still confident that independence was a minority passion, which is why David Cameron agreed to a referendum. He dearly wished he hadn’t.

From nowhere, the Yes campaign captured the imagination of many Scots and delivered a result 45 per cent Yes, 55% No in September 2014. It was a near-death experience for the UK State.

Then, in the 2015 General Election, despite having lost the referendum, the SNP won all but three Scottish seats. In the past this would have been a super-majority for independence.

However, the UK Government ignored it on the not-unreasonable grounds that the matter had been resolved, in the SNP’s own words, “for a generation” by the 2014 ballot.

Ms Sturgeon’s target of a majority of the popular vote in 2024 is a mountain to climb. Even in 2015, the SNP won barely 50% of the vote.

A majority of Scots say they don’t want a referendum next year. As Professor Jim Mitchell pointed out last week, an academic highly resected by independence-minded folk, a General Election is not a referendum and no party can turn it into one. The SNP may offer a one-line manifesto, but manifestos are the great unread.

Legitimacy denied

ANYWAY, after this de facto referendum, who would the victorious Scottish Government be negotiating with? As Nicola Sturgeon said in her statement, several times so that her troops got the message, she would only consider a valid referendum legitimised by a section 30 Order passed by Westminster. To repeat: no party in Westminster is going to back that request.

The only chance would be if Labour sought an electoral alliance with the SNP – and that is not going to happen.

It might be that in the turmoil of the post-election period, with mass demonstrations and angry Scottish nationalists besieging the Scottish Parliament and building barricades like their counterparts in Barcelona in 2017, Westminster might be persuaded to relent if it threatened the peace of the realm.

But one thing is certain. A referendum held under those circumstances would certainly be lost. Nicola Sturgeon is not a revolutionary and neither are the Scots. With excitable nationalists causing riots the Scottish voters would turn away.

Ms Sturgeon is a cautious lawyer, and a clever one. Last week, she bamboozled her activist wing by appearing to adopt their tactics, the better to show that they lead nowhere. Some are now beginning to twig. But they have nowhere else to go.

It might be better to accept the situation and negotiate greater economic power for Holyrood. That is something that Labour, and many Tories, would agree to if it meant attenuating the Barnett formula.

Independence would be achieved incrementally.

As she has said so often before, there is no easy route to independence. It’s a long hard road, and she is unlikely to be leading it much after 2024 when, like her doppelganger Birgitte Nyborg of Borgen, Nicola Sturgeon departs to a big job abroad.

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