Scottish independence: Nicola Sturgeon announcement puts a new spin on referendum debate

In a debate that's been actively raging for 10 years now, Nicola Sturgeon has today managed to do something truly surprising - she said something we hadn't heard before.

A direct referral to the Supreme Court wasn't on most people's indyref2 bingo cards.

And while some of the content of the First Minister's announcement to parliament was familiar territory (democratic mandates, will of the people, Section 30 Order, #BorisJohnsonBad), this legal step has finally moved the needle on a constitutional discussion that's become the backdrop to all of our lives - whether we like it or not.

"We are seeking to deliver clarity and legal certainty in a timely manner and without the delay and legal doubt that others would prefer," the SNP leader told MSPs, adding that if the highest court in the land rules that the Scottish Parliament does not have the capacity to legislate for a fresh constitutional ballot without a Section 30 Order from Westminster, then the SNP will fight the next general election as a "de facto" referendum.

"Now is the time," Sturgeon said, naming 19 October 2023 as her preferred date to send Scots to the polls for a consultative ballot.

But long-term SNP watchers would have been excused from feeling a sense of deja-vu.

While the party's preference has been to secure independence through a lawful ballot for several election cycles, it previously advocated using general election votes as the determinant instead. That changed before Alex Salmond secured the Section 30 Order required to make the 2014 referendum legal.

The starting gun for that contest was fired in 2012, and so if Sturgeon has her way, the journey from the first time of asking to the delivery of a 'yes' majority will have taken just over a decade.

But it's a big 'if', and there was speculation yesterday over whether or not Sturgeon's newly-published Scottish Independence Referendum Bill would have been rubber-stamped by the Lord Advocate, had she been asked to consider its legality herself, rather than making the referral to the court.

Labour's Daniel Johnson queried as much in the chamber, while Murdo Fraser of the Conservatives made the point on Twitter. "If the hand-picked Lord Advocate wouldn't certify the referendum bill as within devolved competence," he said of Dorothy Bain, "the chances that the Supreme Court will do so must be zero", ending with the unionists's preferred hashtag of the moment, "#pretendyref".

Tory leader Douglas Ross has said that his party won't be taking part in anything of the sort.

And it's that suggestion - that a consultative referendum would be pretendyref - that became a matter of contention for the SNP membership in 2019, when MP Angus MacNeil and then-councillor Chris McEleny sought to have the party back their "plan b" proposal. It stated that, in the absence of a Section 30 Order, an SNP majority at the next general election would provide a direct mandate to enter into independence negotiations with the UK Government.

The party's left-leaning Common Weal Group subsequently called for the formation of a working group to consider all legal routes to independence, something initially promoted by Joanna Cherry MP. 

And as recently as April, Douglas Chapman MP suggested that a majority of pro-independence Scottish MPs at Westminster could be the trigger for a breakaway declaration, if a referendum is not held next year.

Until the Supreme Court issues a determination, we won't know for sure what the FM's next steps will be. 

But what we do know is where Boris Johnson stands. "We are clear that now is not the time to be talking about another independence referendum," the UK Government said in a statement that rings very familiar. 

"A decision has been taken by the First Minister to publish a Bill," it went on, "and the Lord Advocate has made a referral to the UK Supreme Court. UK Government law officers will now consider their response."

Meanwhile, from his new place at the helm of the Alba Party, Salmond says Sturgeon "should not give up on bending Boris Johnson to the people's will on a Section 30 Order to deliver a referendum under the same terms I previously negotiated in the Edinburgh Agreement".

"There has never been a weaker UK Prime Minister," he said, rubbing salt into the two byelection drubbings sustained by the Conservatives last week and adding that "the question of Scottish sovereignty can also not simply be left to the UK Supreme Court". 

"The concept of using the UK general election as a backstop will cause a wry smile to those within the SNP and in the wider movement who have been calling for that for the last five year," he said. "However, even then, we need to be prepared with the popular campaign which will be required to force recognition of Scotland”s Claim of Right.”

Whether it's popular or not depends on who you speak to, but that is exactly the point; with Sturgeon's announcement, Scotland's constitutional position is again at the forefront of conversation. And with a range of potential outcomes before us, there is finally something new to talk about.