Can the Supreme Court really settle the Scottish independence debate?

The biggest question in Scottish politics is set for fresh answers after First Minister Nicola Sturgeon revealed her government’s plan for indyref2.

But with a number of issues to be addressed even before the public can – might – have their say, we’re still some way short of a decisive conclusion. And the issue is set to dominate the forthcoming parliamentary session just as it drew renewed focus on Holyrood in the final weeks of the last.

Winning a fourth term in office last May, the SNP leader had said the timing of a second independence referendum was “a matter of when, not if”. At that time, a date by the end of 2024 was preferred. Now there’s an exact day pencilled into the political calendar – 19 October 2023. That’s when the SNP-Green government aims to send the country to the polls for what it hopes will be a victory in its quest for Scottish sovereignty.

However, the referendum as currently proposed, and legal rulings notwithstanding,  is advisory and most likely to be staged without the Section 30 Order from Westminster that put 2014’s ballot on a firm legal footing.

Under Boris Johnson, Downing Street repeatedly made clear its opposition to any such vote, a position also taken by runners throughout the course of the race to replace him as Conservative leader and prime minister (Liz Truss went so far as to describe Sturgeon as an “attention-seeker” and declare she would “ignore” her). And so, even as Sturgeon insisted she was ready to negotiate such an order with Johnson and his successor, the Scottish Government has taken a different path.

Its decision to ask the UK Supreme Court to determine whether the Scottish Parliament has the competency to hold such a referendum under the terms of the Scotland Act is unprecedented and was, by most observers, unpredicted. 

Lord Advocate Dorothy Bain QC made the reference on behalf of the Scottish Government, and her submission made clear that she “does not have the necessary degree of confidence” that a bill to bring forwards such a vote would be within parliamentary competence. There is a “genuine issue of law that is unresolved”, she wrote, which is “of exceptional public importance to the people of Scotland and the United Kingdom”. And it is a question, Bain stated, that “can only be authoritatively determined by this court”.

However, if the court finds that competency indeed rests in London alone, that still will not be the end of the matter, with Sturgeon and Green co-leader Patrick Harvie both stating that the next general election will become a de facto vote on the country’s place in the union, meaning their parties will campaign on that single issue.

The news prompted an immediate response from those for and against constitutional change. Scottish secretary Alister Jack described the indyref2 push as a “wheeze”, saying the constitution is “very clearly” reserved. Douglas Ross, leader of the Scottish Conservatives, said his party “won’t play Nicola Sturgeon’s games” and “won’t take part in a pretend poll when there’s real work to be done”. 

Meanwhile, Scottish Labour leader Anas Sarwar read the move as “actually about the general election and the SNP having some relevance in it”, and Alex Cole-Hamilton of the Scottish LibDems suggested that the plan “wasn’t properly thought through” and is a distraction from other government business.

All of that followed condemnation of budget decisions that saw £20m put aside for an independence referendum during the cost-of-living crisis and in the aftermath of the pandemic.

Meanwhile, former SNP First Minister Alex Salmond, now leader of the Alba party, has questioned the wisdom of the SNP’s independence strategy. “The SNP have been painfully slow in refurbishing the independence case to meet the hard realities of 2022 and beyond,” he wrote for Holyrood, dismissing the likelihood of an early general election and the “far-fetched” chance that “Scottish sovereignty would be protected by the appointed bench in Middlesex Guildhall, two minutes’ walk from the Palace of Westminster”. “It is difficult to inspire without a positive platform,” he went on, adding that the Scottish Government’s competency credentials are now “very much an issue”.

That refurbished independence case is set to be revealed to the public over the course of 10 Scottish Government papers. Collectively titled Building a New Scotland, the publications are intended to “form a prospectus for an independent Scotland” and will cover a range of issues. The first two, comparing Scotland’s economy to that of similarly-sized independent European nations and one on renewing democracy, have already been published, but to little fanfare.

The first of these, headed Independence in the Modern World: Wealthier, Happier, Fairer: Why Not Scotland?, was unveiled to the media at a Bute House press conference that earned the administration a rebuke from Presiding Officer Alison Johnstone. That was not over the paper itself, but because news of this revised attempt to establish independence was delivered to parliament through the headlines, rather than in the chamber. Angus Robertson, who holds the constitution and external affairs brief, was consequently prevented from making a statement on independence to the Scottish Parliament. 

Under good practice guidance, Scottish Government announcements on “matters of significant and either immediate or ongoing public importance” should be delivered in parliament first, with a “presumption against” giving the information to reporters first.

“Significant news that should have been announced in this chamber as a matter of courtesy and respect to the parliament was reported by national media,” Johnstone said. “The government is in no doubt that I do not regard this as acceptable”.

However, the interest in the matter has indeed been significant, making headlines internationally as Salmond’s description of the 2014 vote as a “once in a generation” event was repeated time and time again. 

The Supreme Court will hear oral arguments from both the Scottish and UK government teams on 11 and 12 October this year, and the SNP has also now requested the chance to lay out its case for another vote in a submission that emphasises the pro-independence manifesto commitments on which it has been elected. The right to self-determination is “fundamental and inalienable”, it says, and “properly construed, the Scottish Parliament does have the legislative competence to legislate for a referendum on Scottish independence”.

The last time a court was asked such a question was in a crowdfunded case brought by independence campaigner Martin Keatings to the Court of Session, but this was dismissed on the grounds of prematurity as no relevant legislation was in place. In its submission to the Supreme Court, the UK Government has said that the current reference over the matter is also premature because the statutory process contained in the Scotland Act to test the competency of Holyrood legislation only begins after a bill has been passed by MSPs.

Is time on Westminster’s side, or Holyrood’s? And what does the public think? A Savanta ComRes poll for The Scotsman in late June found that if indyref2 was held the next day, No would edge it by the narrowest of margins. A total of 44 per cent of respondents said they’d vote Yes, but 46 per cent intended to vote No. Another 10 per cent were undecided and it is this group that will truly hold the power on 19 October next year, if indeed polling places are to hold a legally sound ballot on that day. If so, the battle for its support will be vocal and concerted. And if this margin is accurate, the Scottish Conservatives may have to rethink their opposition to taking part.

Q&A with Angus Robertson, Cabinet Secretary for the Constitution, External Affairs and Culture

Holyrood: Is this referendum bid really what Scotland wants?

Angus Robertson: There is an extraordinary attempt by those who want to maintain Westminster control over Scotland to deny the democratic rights and wishes of the people who live here. The result of the Holyrood election last year was clear: people in Scotland have voted for a parliament with a clear majority in favour of independence and with a mandate for an independence referendum.

The majority for a referendum is bigger than it was in 2011 and it is for the Westminster parties to explain why they are abandoning the commitment they gave in the cross-party Smith Commission that “nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose”.

The conflict in Ukraine has led to a reappraisal of Scotland’s strategic importance. How has it affected the government’s outlook in terms of its place in the world?

AR: I entirely condemn Russia’s unprovoked invasion of Ukraine, having watched in horror as the humanitarian crisis has unfolded. Scotland stands for democracy, human rights and the rule of law at home and abroad.  We also stand in solidarity with eastern European countries whose proximity to Russia and experience of the Soviet Union means we should listen to them when they advise us how to address President Putin’s violent expansionism.

Of course, all of this serves to underline the importance of the closest possible relationship with Europe, remembering the EU’s beginnings as a peace project in the wake of the horrors of the Second World War. As the First Minister set out during a speech earlier this year at the Brookings Institute in the US, membership of the EU and membership of Nato, coupled with a strong relationship with the UK, would be cornerstones of an independent Scotland’s security policy.

In the coming months, the Scottish Government will set out its vision for how an independent Scotland would be ready to meet the global challenges of our increasingly interconnected and unpredictable world.

Brexit is done, and the Scottish Government remains committed to Scotland’s re-entry into Europe. What would you say to the one million Scots who voted to leave the European Union?

AR: Brexit is a long way from being ‘done’ – indeed the UK Government is now threatening to provoke a catastrophic trade war with the EU in the middle of a cost-of-living crisis because of its Northern Ireland Protocol Bill. I respect, of course, the views of everyone in Scotland, while acknowledging that people here voted by a margin of 24 per cent to remain. And for everyone in Scotland the damaging impacts of Brexit are already very clear.

Polling shows that people across Scotland are all too aware of this with 75 per cent of people in Scotland having a negative opinion about whether the UK has benefited from Brexit, and only two per cent believe that Boris Johnson delivered a good deal. Having been inside the EU for 47 years, Scotland is clearly well placed to rejoin and we will set out later in the Building a New Scotland series an examination of the rights, benefits and responsibilities of EU membership for an independent Scotland. In the meantime, we will not stand by while the UK Government is intent on a race to the bottom. That is why we will continue to align with the EU where possible, to protect the high standards Scotland enjoys.

The Scottish Government has increased its overseas footprint by establishing new offices in London, Berlin, Paris, and Copenhagen and aims to strengthen this further with a teams in Warsaw as part of its Global Affairs Framework. Is this the vanity project political opponents claim? 

AR: The Constitution, Europe, External Affairs and Culture Committee’s recent report on the Scottish Government’s international work highlighted an enthusiasm, and cross-party consensus for, the work which Scotland’s international offices do day to day. Our international activity creates opportunities at home, broadens our horizons, attracts high-quality investment and ultimately benefits our people.

By being open and connected and making a positive contribution internationally, we give ourselves the greatest possible chance of building a successful country. In this way we can make a contribution to the world that is welcomed, valued and helps us all. We are committed to a continuous process to ensure our work is measurable, transparent and available to the public.

In the past year we’ve seen film crews for big-budget US productions like Indiana Jones, The Batman and more set up in Scotland. Which as-yet untold Scottish stories would you like to see on the silver screen?

AR: Our focus is on building the skills, talent, support system and infrastructure to capitalise on unprecedented interest in production in Scotland and further develop a sustainable creative economy. I would love to see fantastic contemporary Scottish stories like Jenni Fagan’s Luckenbooth or Douglas Stuart’s Shuggie Bain on the big screen.

The pandemic has clearly been difficult for everyone, but particularly in a brief that is all about getting out and meeting people from all over the world, was it especially difficult for you?

AR: It has been a strange time for everyone whose work transferred online during the pandemic. Only now am I beginning to meet some colleagues in person for the first time. Notwithstanding the lack of personal contact during the pandemic, we are very fortunate that technology has made it possible to meet as easily as we can on Teams or Zoom calls. While it is better to be able to meet colleagues in person we should not lose the advantages that remote working has brought.

This article appears in Holyrood’s Annual Review 2021/22