Sturgeon’s efforts to enable a referendum know no bounds
Yesterday, Nicola Sturgeon announced that she was introducing a referendum bill. But can she call a referendum without the consent of the British Government?
In 2011, David Cameron agreed to a Section 30 Order, provided under the 1998 Scotland Act, to allow the 2014 referendum. Fifty-five per cent of Scots rejected independence. Boris Johnson, supported by Labour and the Liberal Democrats, refuses to countenance another such order.
Shortly before the 2014 referendum, the Scottish Government published a White Paper declaring it a “once in a generation opportunity”.
But Nicola Sturgeon argues that Brexit, which Scots voters opposed in the 2016 EU referendum, is a material change of circumstances justifying a second referendum. She claims a mandate since the SNP and the Greens, who also support independence, won 72 of the 129 seats in the 2021 Holyrood elections. In Scotland, she insists, the people, not Westminster, are sovereign.
But the Scotland Act reserved to
Westminster the power to alter the constitution, including in Schedule 5 1 (b) “The Union of the Kingdoms of Scotland and England”. And last month, Mike Russell, SNP president, admitted that Holyrood was “not presently empowered” to hold a referendum.
Nicola Sturgeon reaffirmed that a referendum must be legally watertight. The bill she proposes would be consultative, not selfexecuting, and therefore without binding legal effect. So were the 1997 devolution referendum, the 2014 devolution referendum and the 2016 Brexit referendum. A Yes vote, therefore, would not make Scotland independent,but it would give Nicola
Sturgeon the power to negotiate with Westminster on independence.
Nicola Sturgeon accepted that the referendum might not be within Holyrood’s legislative competence. The British Government, under Section 33 of the Scotland Act, would almost certainly ask the Supreme Court to determine its legality after it was held.
However, Nicola Sturgeon insisted legal clarity was needed now, so that Scots could have certainty when they came to vote. She had therefore asked the Lord Advocate, Scotland’s senior law officer, to refer it to the Supreme Court. Were the referendum to be declared unlawful, that, Nicola Sturgeon argued, would show the
Union not to be a partnership of equals. The SNP would then treat the next general election itself as a referendum on independence.
The Supreme Court, therefore, will have to make a momentous decision, which could determine the future of the United Kingdom.
Politically the case for a second referendum is weak. It would be absurd to have a referendum every time the SNP won an election. Once in a generation seems about right.