There have always been three avenues for a second referendum on Scottish independence, and despite the accumulation and rhetoric surrounding Tuesday’s statement, they remain unchanged – an order in section 30 of the UK government; risk of internal boycott and international condemnation by wild vote; or introducing a bill for a referendum in the Parliament of Holyrood and facing an almost inevitable judicial challenge.
Nicola Sturgeon told lawmakers Tuesday afternoon that she had again written to Boris Johnson, the latest of repeated requests for a Section 30 warrant under the Scottish Act of 1998, which would give Holyrood the power to pass laws for a new referendum. The previous one happened in 2014 and it is a process described as the “gold standard” by the first minister.
Johnson replied that “he will study it very carefully and we will answer correctly,” but the answer is unlikely to differ from previous iterations: no.
Sturgeon has repeatedly rejected a Catalan-style wild cat vote, which leaves Sturgeon’s route to Holyrood, but which constitutional experts suggest takes us a little further on the key question of whether the Scottish parliament can pass a second referendum law when the constitution is reserved for Westminster.
The Scottish Government on Tuesday presented a bill for a referendum and – as a preemptive move that took over the political agenda and overcame the danger of the President of Holyrood rejecting the bill with competence – asked the Lord Advocate, Scotland’s top law official, to raise the issue with court.
Sturgeon told the ICJ: “There have been many comments in recent days that the consultative referendum will not have the same status as the 2014 vote. This is simply wrong, factually and legally. The status of the referendum proposed in this bill is exactly the same as the 1997 referendums [devolution]2014 [independence] and 2016 [Brexit]”
Curious is Sturgeon’s emphasis on the consultative nature of the vote. As Kenneth Armstrong, a professor of European law at the University of Cambridge, noted: “Any referendum in our constitutional system is consultative rather than self-executing, unless the law requires what should happen if the vote goes the way it does. Given the experience of the Brexit referendum, there is an argument for holding a proposition referendum (is independence a good idea?), Followed by a dispositive referendum (this is what independence looks like, is that what you want?), But is it a different kind? on the issue of constitutional design. “
According to James Mitchell, a professor of public policy at the University of Edinburgh, Sturgeon “ignores the crucial point that although legally her bill – depending on the Supreme Court’s decision – is the same, it is politically completely different. And as she should know, the United Kingdom has a “political constitution”.
The most notable aspect of the statement was that Sturgeon put the ball in another campaign, Mitchell said, “but there’s nothing new.”
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As for how the Supreme Court can rule on the Lord Advocate’s recommendation, Armstrong said he must first decide whether he is ready to accept it, without seeing the final version of the bill that has just been published.
“There is a risk that he will accept the view that the Scottish Parliament must first pass the bill so that the issue is not just hypothetical or deliberative.
Sturgeon said that if the Supreme Court did not rule in favor of the Scottish government, the Scottish National Party would fight in the next general election in the United Kingdom on whether Scotland should be independent.
While this could put Scottish Labor in a difficult position in the upcoming election campaign, the result will have no legal force – ‘election rhetoric only’, as Chalmers puts it. Success would add strength to the SNP’s claims of a political mandate, but it would also completely contradict Sturgeon’s own claim that any future vote must be legally valid and internationally recognized.
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