Richard Parry discusses the pressures from political strategy and legal compliance that lie behind the First Minister’s announcement of a referendum date.
The SNP’s much-postponed flight path to ‘IndyRef2’ is taking a while to pass its final ground checks. In the absence of legal underwriting from the UK Government, the Scottish Government (SG) knows that a referendum bill, like all its bills, has to carry the statement that it believes it to be within the legislative competence of the Parliament. The Lord Advocate is a member of the SG and has the same power as the UK law officers to refer a bill to the UK Supreme Court to test its competence. So basically the Lord Advocate, taking any internal and external legal advice she wishes, has to be happy that the bill would withstand legal challenge. Separately, the Presiding Officer has to give a non-binding opinion on the legislative competence of any bill.
Faced with these hurdles, the First Minister came up with a new plan in her statement to the Parliament on 28 June 2022. She announced the publication of the Scottish Independence Referendum Bill, setting the date at 19 October 2023, with the same question as in 2014. She made it clear that its effect would be ‘consultative and not self-executing’, noting that this was exactly the same status as the 2014 and 2016 referendums (in fact, self-executing referendums have occurred in the UK, most recently in 2011 on the AV voting system).
The surprise was that the Lord Advocate had, in advance of the bill’s introduction, referred it to the Supreme Court for a decision as to its legislative competence. The purpose would be to gain legal cover for the bill in advance of spending time on it and, if refused, lead to a reversion to a political strategy of using the next UK general election as a single-issue campaign by the SNP on the same question.
This referral is being done under paragraph 34 of schedule 6 of the Scotland Act 1998, a schedule designed to deal with devolution issues which arise in the course of legal proceedings. These can include (para 1) ‘whether a function is exercisable within devolved competence’. This is different from the power under section 33 of the Act to refer a bill, within four weeks of its passing, for a Supreme Court decision about its legislative competence, the mechanism it had been assumed the UK government would use after a referendum bill was passed.
This approach is ingenious, as it avoids any SG assertion at this stage that their draft bill is legislatively competent. Interview answers from Angus Robertson and John Swinney took refuge in the confidentiality of legal advice, suggesting that the Lord Advocate is not prepared to give that opinion. The wording of schedule 6 is expansive - para 34 allows referral of ‘any devolution issue which is not the subject of proceedings’ - and the Supreme Court announced rapidly in a news release that the reference does not require the permission of the Court for it to proceed and that it would be heard, with next steps in the hands of its President Lord Reed. We know from the two Miller cases on Brexit and prorogation that the Court is not afraid to engage with the major constitutional issues of the day. But would it ever give advance legal clearance for a bill that has not even been introduced and whose competence has not yet been asserted by Holyrood?
When in October 2021 the Supreme Court struck down two Scottish laws that sought to impose conformity with international conventions on non-devolved functions in Scotland they made it clear that they expected the Lord Advocate and Presiding Officer to do their job when an aspect of a bill appeared on the face of it not to be competent, rather than relying on the Court to sort things out for them if they got it wrong. This would be a yet more telling point in the present referral made at an earlier stage of Holyrood process.
The attitude of the legal side of the UK Government will be important. Will they engage with the case and make it in effect a joint referral? Or will they stand back and reserve their position until an actual bill is passed to which they can object under section 33, so undermining the October 2023 timetable? It is hard to see the SG getting more than a neutral outcome from the Court this way, given the trend of legal opinion on the matter (admirably reviewed by David Torrance in his CCC blog of 23 June 2022).
The other important aspect of Sturgeon’s statement was to double down on the 2014 referendum question. Other strategies are available. Lacking a pro-independence majority in 2007, the SNP first floated the idea on a referendum about opening negotiations about independence. Later they suggested a multi-option referendum that might have allowed them to demonstrate a majority for change in a pro-independence direction.
The irony is that the straight up-and-down referendum of September 2014 was an approach of the UK Government, convinced that a clear victory for the No side was inevitable and that they would be the winner who would take it all. The final 55.4% No majority was disappointing in these terms but the real problem was the momentary Yes opinion poll lead late in the campaign. This made it clear – and nothing has changed since – that there was a basic near-even division of Scottish opinion on the matter and that neither side could go into a second campaign confident of the result.
In the 2016 Brexit referendum the winner really did take it all on a 51.9% majority and a far sketchier scenario of what the option for change would entail. Later attempts to have a second referendum on the exit terms agreed were met by the objection - helpful to the SNP - that the referendum result was the point of decision to which all else was democratically subordinate. In the end the issue was resolved by the Conservative general election victory in December 2019.
The SNP’s backup approach is to use the UK general election required by 2024 as their ‘get independence done’ moment. But the securing of seats and votes at Westminster gives the SNP no power to do anything, and they are vulnerable to a shortfall in their position compared with 2019 or their best result in 2015. We will circle the date in our calendars for October 2023. But taken as a whole the flight plan filed by Nicola Sturgeon seems to be taking us in the direction of no law, no referendum and – for the present at least – no independence.
Richard Parry is Honorary Fellow in the School of Social and Political Science, University of Edinburgh, and the Centre on Constitutional Change