Supreme Court comes into picture of second Scottish independence referendum

Sturgeon announces vote to be held in October 2023 if judges deem it legal · Alternatively, First Minister could seek to turn general election into plebiscite

Nicola Sturgeon, at the 2021 Conference.
Nicola Sturgeon, at the 2021 Conference. Author: SNP
The Scottish government set 19 October 2023 as the date for the second Scottish independence referendum, 9 years after the first one was held. The referendum bill was announced yesterday by Scottish First Minister Nicola Sturgeon, who explained in Parliament that she will be seeking “legal clarity” on whether the vote —which on four occasions she described as “consultative”— can be held without the UK government’s agreement.

Democratic mandate”

The first minister reiterated that the Scottish Parliament has “a clear, democratic mandate to offer Scotland” a new choice between independence or continued UK membership. The basis for that assertion is the fact that parties having committed themselves to hold a second independence referendum in their 2021 election manifestos won an absolute majority (72 seats out of 129, with 49% of the vote in the constituency vote and 51% in the regional vote).

Bill referred to Supreme Court

One pending issue is whether it is legal for Scotland to hold an independence referendum without the agreement of the UK government. Prime Minister Boris Johnson has repeatedly said he will not agree to negotiate a new section 30 order for a second referendum, unlike David Cameron did in 2012. Sturgeon yesterday said the Scottish government’s chief legal officer will refer the referendum bill to the UK Supreme Court seeking “legal clarity.”

Sturgeon voiced confidence that the referendum “will be deemed within the legislative competence” of the Scottish Parliament. According to the Scottish government’s thesis, there can be nothing illegal in consulting Scotland’s population on their constitutional preference. But the Supreme Court may take the view that this is nevertheless a way of putting pressure on the UK authorities in a reserved power, therefore turning any non-agreed vote illegal.

Bill expected to pass if Supreme Court gives go-ahead

Should the Supreme Court support the Scottish government’s view, Sturgeon said the referendum bill will be approved immediately. This should be straightforward as the two pro-independence parties (SNP and Greens) have 64 and 8 seats in the Scottish Parliament respectively, where the absolute majority is set at 65.

Course of opinion polls

Opinion polls on a possible second referendum show the “yes” and “no” sides to be neck and neck. During the first year of the pandemic, “yes” to independence enjoyed some advantage, but from 2021 onwards tables were turned. Since the Russian invasion of Ukraine in February 2022, “no” to independence has enjoyed a lead of 1 to 8 percentage points, but still without reaching the 50% figure, as undecided voters are somewhere between 5 and 13 per cent. In the 2014 referendum, the “no” side won with 55% of the vote.

Mightunionists boycott the vote?

Unionist organisations and political leaders have warned that a referendum without London’s agreement could be boycotted by “no” voters, thereby —they argue— distorting and delegitimising the result. Those warnings were made on the understanding that Edinburgh would organise an “illegal” vote. Now, however, it is unclear what stance unionist voters might take in the event that the Supreme Court were to uphold the Scottish government’s plan and accept the legality of a non-agreed referendum.

Unionist party leaders in Scotland critical of referendum

The Scottish leaders of the three main unionist parties (Conservative, Labour, and Liberal Democrat) immediately rejected Sturgeon’s announcement. They believe, like Boris Johnson, that Sturgeon’s cabinet should focus on the economic recovery from the pandemic and on managing the consequences of the war in Ukraine. They also reproach her for “dividing” Scottish voters.

Johnson: “We will study it very carefully”

Boris Johnson avoided assessing Sturgeon’s announcement yesterday, and limited himself to explaining that he had not yet been able to “see exactly” what the first minister had said. “We will study it very carefully and we will respond properly,” the PM added. A spokesperson for Johnson reiterated that the “position” of the UK government “remained unchanged” and that it will also be needed to wait and see what the Supreme Court says about the issue.

A plebiscite election?

Should the Supreme Court say Scotland cannot hold the referendum, Sturgeon said it will be clear that “the notion that the UK is a voluntary union of nations is a fiction.” In such a case, Scotland’s first minister proposed that “the general election will be a de facto referendum.”

That concept somewhat evokes that of Catalonia’s 2015 plebiscite election, which the Catalan government sought to turn into a “definitive consultation” on independence but which, in the end, did not have that role and gave way instead to the October 2017 referendum.

In any case, the idea of a plebiscite election removes one of the scenarios that had hitherto hovered over the issue (although the Scottish government never said it would do so) —that Scotland could hold the referendum even if courts considered it illegal.