Scottish independence referendum: Why a Supreme Court defeat on indyref2 would hand Nicola Sturgeon a powerful 'weapon'

Today’s judgement by the Supreme Court is the first result of Nicola Sturgeon’s major strategic gamble around independence.

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The moment the judges rule will change the face of the independence debate, at least in the short term, but what they decide will send the SNP and the independence movement down different paths.

The First Minister would probably admit only in her wildest dreams does she believe the Supreme Court will rule in favour of the Scottish Government. Legal opinion is almost united in agreement that, should the case get that far, the court will rule in favour of the UK Government.

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That assumption feels replicated within the SNP, a party that feels as far away from an independence referendum as it did during the depths of 2020. Its infrastructure isn’t ready, its members aren’t ready, and the Government certainly does not appear ready to fight a full-blown campaign.

Should the UK Government win, however, Ms Sturgeon will be handed one of her most powerful rhetorical weapons. Confirmation the UK Government is the only institution that can grant a referendum would lead to significant questions about the nature of the union and whether it remains one of consent.

This could galvanise the independence movement around an argument of democratic deficit twinned with two of the most convincing arguments for independence – according to pollsters Ipsos – that Westminster cannot be trusted to act in Scotland’s interests and that Scotland is moving in a different political direction.

There are serious questions about how and under what conditions a referendum could be granted if the power to do so lies solely with Westminster. Simply wishing the problem away is unlikely to wash with a political environment that is steeped in years of constitutional division.

What if the Supreme Court refuses to rule on the issue, throwing it out on a number of technicalities such as the question not being a devolution issue, or judging it as premature due to the lack of a fully passed Holyrood Bill?

First Minister Nicola Sturgeon faces a key moment as leader of the nationalist movement in Scotland.First Minister Nicola Sturgeon faces a key moment as leader of the nationalist movement in Scotland.
First Minister Nicola Sturgeon faces a key moment as leader of the nationalist movement in Scotland.

This would leave the SNP stuck in square one once again, with little room for manoeuvrability. It is the Lord Advocate’s reluctance to sign off the Bill as competent that is the sticking point right now given the ministerial code demands the sign off on competency from the law officers.

Ms Sturgeon could change the ministerial code, a process that is already underway for different reasons, to add the word ‘normally’ to the key section, allowing an ‘exceptional’ situation, potentially such as this constitutional stalemate, to get the Bill into Holyrood. But that idea falls foul of her commitment to a gold standard, legal vote.

The same problem rears its head if the SNP ask a back-bencher to move a Private Member’s Bill, which does not require such sign off. But then the SNP lose control of such an important Bill and rely on backbench competency to ensure it is watertight. And who would be trusted to lead such a symbolic move?

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What of the ‘de-facto’ referendum at a general election, an idea the party’s leadership seem keen for us all to forget? This again has its risks. If the pro-independence parties fail to win 50 per cent of the vote, Ms Sturgeon must resign. If they succeed, how do they force Westminster to the negotiating table?

As much as the Supreme Court’s judgement could prove a catalyst to the constitutional malaise facing Scotland, it could also lead us right back to where we started.

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