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Sturgeon's independent thinking catches Westminster off-guard

1 July 2022
| by Field Team

Sturgeon has announced the next Scottish independence referendum will take place on 19 October 2023 and has caused surprise amongst many by taking the issue straight to the Supreme Court. Could this tactic be successful or will she have to revert to fighting the next election on the issue? Read Field’s Felix Shaw’s analysis of the case and the potential routes to raising a Scottish independence referendum.

Few would doubt Nicola Sturgeon’s talent as a political operator, yet she’s a politician who rarely has the capacity to surprise. Compared with someone like Boris Johnson, whose next move arguably depends on who brings him his breakfast in the morning, Sturgeon is reassuringly predictable. Her entire political career, and the entire raison d’être of her party is to secure independence for Scotland as soon as possible. So, for Sturgeon, it’s never been a case of if a second referendum will take place, rather when and more importantly how.

In deciding when, most would look at the polling data – which has shown a near consistent lead for ‘No’ over the last 12 months, a consistent majority opposed to another referendum in 2023 and less than 20% of Scots ranking independence in their top three most important issues – and think maybe it’s worth keeping it on the back burner for now. But few were surprised when Sturgeon finally announced this week that, if she gets her way, the next independence referendum will be taking place on 19 October 2023.

What did come as a surprise though was the how. Most expected Sturgeon to introduce the referendum through a Bill in the Scottish Parliament, which would be almost certain to pass with a pro-independence majority. This would then be subject to a legal challenge in the Supreme Court from the UK Government who would cite that constitutional matters, such as independence, are outside the remit of the Scottish Parliament.

The problem here though is that, even with a pro-independence majority, a Bill takes time to pass and that is valuable time for the UK Government to prepare its case. To get around this, there’s been a bout of uncharacteristic creative thinking from Sturgeon. Citing an obscure schedule from the Scotland Act 1998, which says the Scottish Government’s chief legal advisor can “refer to the Supreme Court any devolution issue which is not the subject of [legal] proceedings”, Sturgeon has stolen a march on Westminster by circumventing the drawn-out process and skipping straight to the Supreme Court showdown. 

It’s a bold political move, more akin to the Cummings playbook of circumventing a log-jam with a high-stakes constitutional gamble, rather than Sturgeon’s typically cautious approach. Therefore, it’s obviously not without risks either. The big risk of course is the Supreme Court rules against the Scottish Government and confirms the referendum lies outside Sturgeon’s remit. Given this is probably the most likely outcome, Sturgeon has already confirmed her plan for it. The Scottish Government would accept the result and then use the next general election as a de-facto independence referendum, campaigning solely on this issue. If pro-independence parties get over 50% of the vote, it’s another mandate for independence in the SNP’s eyes and a further ratcheting up of the pressure for Westminster to grant an official second referendum. 

This would be a major headache for all the unionist parties, who want nothing more than to campaign on the SNP’s track record in power rather than independence again. But it’s also a risk for the SNP. As already mentioned, independence is not polling highly as a top issue in Scotland, and a campaign focused solely on the issue could well backfire. What happens if the SNP lose votes and seats? Where does the case for independence go then?

The other risk is that the Supreme Court decides not to hear the case at all, which could easily happen given that a second referendum is currently still purely hypothetical, with plenty of unknowns around questions and campaigning. If this did happen, Sturgeon would be back to square one, forced to go down the route of getting a Bill through the Scottish Parliament only to find it potentially blocked by the Supreme Court anyway.

One thing that seems certain is that, at least while Boris Johnson or another Conservative is Prime Minister, there is very little chance of the Scottish Government being granted the Section 30 order which would allow them to hold a legally binding referendum. So, for the time being, big political gambles remain the only option open to Sturgeon. But perhaps this push into the world of high-risk high-reward dice throws will turn out to be exactly what she needs.

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