Sturgeon’s independence plan is likely to be blocked – but that won’t end the row

Nicola Sturgeon this week reignited the smouldering debate on Scotland’s constitutional future, by announcing the next steps her government and party will take to secure Scottish independence. 

A newly published bill sets a date of 19 October 2023 for a second independence referendum.^[1] Sturgeon has written to Boris Johnson, asking him to pass a “Section 30 Order” that would ensure the referendum could take place without legal challenge, as occurred in 2014.^[2]  

Knowing Johnson would reject this request, the Scottish government also referred its bill to the Supreme Court, asking for a ruling as to whether the referendum can be held without Westminster backing. The court is unlikely to rule in favour of the SNP – but those in favour of the Union should not see this as a defining victory. 

Nicola Sturgeon faces an uphill legal battle to hold a referendum on independence 

The first minister makes a strong case for why – on grounds of democratic principle – it should be for the people of Scotland alone to decide whether to remain part of the Union. But she also recognises that independence can only be secured through a legally watertight process. As the SNP has previously argued: “a referendum must be beyond legal challenge to ensure legitimacy and acceptance at home and abroad”.^[3]  To secure this objective, the SNP must overcome a series of daunting hurdles.  

First, there is some legal debate as to whether the Supreme Court will even agree to assess the competence of the referendum bill. For instance, Professor Kenneth Armstrong has suggested that “there is a risk that it takes the view that the Scottish parliament needs to first pass the bill so that the issue is not simply hypothetical or advisory.” ^[4] 

If the court does agree to address the substantive question, then the legal test it will apply is whether the referendum bill relates to the “the Union of Scotland and England” in terms of its “purpose and effect”, as set out in the Scotland Act 1998.^[5] This is a high bar for the Scottish government to clear. At face value, it seems difficult to claim that a referendum asking whether Scotland should become an independent country does not relate to the Union. 

The SNP has already sketched out the shape of its argument. The first clause of the referendum bill states that its purpose is simply to “ascertain the views of the people of Scotland on whether Scotland should be an independent country”. In other words, as Sturgeon put it, this will be a “consultative” exercise, rather than a “self-executing” process leading automatically to constitutional change. However, as Sturgeon herself recognised, this would not distinguish the planned referendum from either the 2014 indyref or the 2016 EU referendum, neither of which were legally binding. 

The SNP faces a double bind in arguing that a referendum can take place without UK agreement 

In any case, the attempt to reframe the referendum as advisory only goes to highlight the double-bind the SNP finds itself in. If it argues that the referendum would be no more than a large-sample opinion poll, then unionist parties and the UK government may boycott the vote and ignore the result, were Scotland to vote Yes. 

On the other hand, if it argues that Westminster would have to respect a Yes vote and begin negotiations on the terms of independence, then it cannot easily maintain that the purpose of the bill is not to break up the UK, in which case the referendum bill will likely be blocked in court under the “purpose and effect” test. 

Even if the Scottish government does get its referendum bill through the Supreme Court challenge, the UK government might simply legislate to prevent the referendum from taking place. That would be contentious, no doubt, but if the survival of the Union were at stake it is plausible that the government would take this option. 

Overall, it seems likely that one way or another the Scottish government will be prevented from implementing its legislation and holding its planned referendum next year. In that scenario, Nicola Sturgeon announced, the SNP will fight the next UK general election as a “de facto referendum”, by campaigning on the single question of whether Scotland should be an independent country. This plan also suffers from some serious weaknesses, including that whatever the SNP might state, an election is not a referendum, and a single party cannot simply declare that it be treated as one. Also, even if the SNP were to win every single Scottish seat based on over 50% of the vote, that would not change the underlying legal position, as described above. 

The dream scenario for the SNP is that it holds the balance of power at Westminster in 2024 and can force a minority government to permit a referendum – or even to enter directly into independence negotiations. But both the Conservatives and the Labour Party are likely to rule out making any such concession. 

Unionists will ultimately have to win the political argument in favour of the Union 

But while the cards are stacked against the SNP, unionists should not grow complacent. The United Kingdom can only survive in the long run on the basis of consent, as Nicola Sturgeon – and indeed Labour’s Welsh first minister Mark Drakeford – argue. This principle is accepted in the case of Northern Ireland: the Good Friday Agreement bound Westminster to facilitate a vote on Irish reunification if it ever becomes clear that a majority is likely to vote in favour. 

In the case of Scotland, the issue is complicated by the fact that Scotland was allowed to vote on independence less than a decade ago. That makes it plausible for unionists to argue that they do respect Scotland’s right to self-determination, but that the 2014 vote settled the issue. The opinion polls also suggest that there is no clear majority in favour of independence – recent polls have put No ahead. Sturgeon therefore cannot credibly claim that Scotland’s mind is made up in favour of separation. 

But so long as Scottish voters continue to return pro-independence majorities at Holyrood and in Scottish seats at Westminster, the issue will not go away. Westminster can ‘just say no’ but that is unlikely to persuade pro-independence voters to switch allegiance – more probable is that it will produce a dysfunctional Union filled with resentment. 

Blocking a second referendum is more straightforward than quelling demands for one to be held. To do so, those who wish the UK to survive another century or three have to win the political argument in favour of the Union, with creative constitutional thinking perhaps leading to further devolution or legal protections for the Scottish parliament. If the argument cannot be won, then Scotland’s claim to strike out on its own will eventually prove too powerful to resist. 

1. www.gov.scot/publications/scottish-independence-referendum-bill/ 
2. www.gov.scot/publications/letter-from-the-first-minister-to-the-prime-minister-on-independence-referendum/ 
3. https://mcusercontent.com/4fae14f57a18ee08253ffc251/files/18ebe54b-8867-439f-91aa-0ea911c369e9/Roadmap_to_Referendum_.pdf 
4. www.theguardian.com/politics/2022/jun/28/sturgeon-faces-tough-hurdles-road-scottish-independence-vote?CMP=Share_iOSApp_Other 
5. www.legislation.gov.uk/ukpga/1998/46/section/29