Sturgeon's independence gamble: The First Minister needs to convince voters, not just the Supreme Court

When Nicola Sturgeon launched her “scene-setter” for a second independence referendum last month, she must have hoped it would provide a brief respite from a stream of headlines as negative as they were unremitting.

From the ferry fiasco to the census debacle and the problems with ScotRail, the past few months have felt like the dying days of a government about to sputter its last rather than one preparing to seek historic constitutional change.

Yet within days of addressing journalists at Bute House on her plans to press ahead with a second referendum even without explicit approval from the UK Government, Sturgeon was again faced with another set of damaging newspaper front pages, this time over her party’s handling of the complaints against MP Patrick Grady.

Grady had already issued an apology in the Commons and been handed a two-day ban from parliament after an independent panel upheld a complaint that he had made an unwanted sexual advance towards a 19-year-old party worker in 2016. 

But an embarrassment for the SNP became an all-out crisis when audio of a SNP group meeting was leaked to the Daily Mail appearing to show fellow MPs pledging to “rally around” Grady. After several more days of media coverage, SNP Westminster leader Ian Blackford finally attempted to shut the story down in an awkward interview with STV in which interviewer Bernard Ponsonby repeatedly asked: “Is a sex pest fit to be an MP?”

A line appears to have been drawn under the episode for now after Grady, a former chief whip, resigned from the party following the disclosure that the Metropolitan Police are investigating the 2016 incident following a complaint from a third party about an alleged sexual assault.

For the usually sure-footed nationalists, the handling of the story suggested an inner turmoil, an indication that as with Scotland’s much-delayed ferries, everything is not as it should be on the good ship SNP.

Fast forward just a few days, and Sturgeon was on her feet at Holyrood giving the speech which could come to define her political career. She announced the publication of the Scottish Independence Referendum Bill and her intention to hold the vote on 19 October 2023, a date which most reasonable observers remain highly sceptical of.

But it was in her mechanism for securing the referendum that Sturgeon sought to pull a rabbit from the hat. Ten years on from the signing of the Edinburgh Agreement which paved the way for the 2014 referendum, it feels like we’ve heard everything when it comes to constitutional wrangling. Yet Sturgeon managed to deliver something new in her search for a way to circumvent the need for a section 30 order granted by the UK Government.

“Some weeks ago, I asked the Lord Advocate to consider exercising the power she has under paragraph 34 of schedule 6 to the Scotland Act to refer to the Supreme Court the question of whether the provisions in the bill relate to reserved matters,” she told MSPs.

It appears fans of the legal intricacies of the devolution settlement are in for a treat over the next few months.

With the process already underway, the First Minister is gambling on the opinion of Supreme Court judges in an attempt to take the matter out of the purview of Prime Minister Boris Johnson. She knows it’s a risk, a punt on both Scotland’s and her own political future. But that’s not where this wager ends.

“It is of course possible that the Supreme Court will decide that the Scottish Parliament does not have power to legislate, even for a consultative referendum. To be clear, if that happens, it will be the fault of Westminster legislation  – not the court,” the First Minister said.

“If it does transpire that there is no lawful way for this parliament to give the people of Scotland the choice of independence in a referendum, and if the UK continues to deny a section 30 order, my party will fight the general election on this single question: Should Scotland be an independent country?”

For Sturgeon, that most canny of political operators, this felt like a major departure – and a major risk. For a leader who has been repeatedly criticised by those on her own side for being too slow to push for indyref2, she has bounced herself into a position which could be her undoing.

Gone is the gradualism of the Salmond era when the prospect of a referendum was dangled to encourage disaffected Labour voters to back the SNP without necessarily signing the UK’s death warrant. 

And yet it remains unclear just how the SNP plan to turn the next general election, likely to take place in 2024, into a “de facto referendum” on Scottish independence.

Should the Supreme Court rule against the Scottish Government or even decide not to consider the case at all, the SNP will go into the next general election as a single-issue party at a time when the current cost-of-living squeeze is likely to have proved devastating for many hard-working families. It’s that sort of electoral arrogance which tends not to go down well with voters. 

Sturgeon’s deputy, John Swinney, got himself into a bit of a fankle on BBC Radio Scotland, telling listeners a mandate for Yes would be secured by the SNP winning a majority of Scottish MPs, a situation which could come to pass even if the party won less than half the vote.

He later claimed to have misheard the question and sought to correct his remarks, tweeting: “Referenda, including de facto referenda at a UK general election, are won with a majority of votes. Nothing else.”

Yet it was a further indication of the disarray within the SNP, a party once grimly admired by its political opponents for its unity of purpose and its ability to crack down on dissent. 

Cracks are appearing too between the SNP and its political bedfellows, the Scottish Greens. While the party’s co-leader Patrick Harvie was invited to share the podium with Sturgeon at the Bute House “scene-setter” last month, the First Minister’s most recent statement was clearly not shared in advance. Answering questions on BBC Radio Scotland, a far-from-convincing Lorna Slater, the party’s other co-leader, mumbled something about “everything being held in confidentiality” when asked whether she had been provided with a copy of the speech.

What is now unequivocally true is that after a series of false starts, the campaign for a second independence referendum has begun. 

The way ahead looks fraught with difficulty for the SNP. The party can justifiably argue that it has a political mandate for a second referendum following its performance in last year’s Scottish Parliament election and its power-sharing agreement with the independence-supporting Scottish Greens, but a political case is very different from a legal one.

Should the Supreme Court rule against the Scottish Government or even decide not to consider the case at all, the SNP will go into the 2024 general election as a single-issue party at a time when the current cost-of-living squeeze is likely to have proved devastating for many hard-working families. It’s that sort of electoral arrogance which tends not to go down well with voters. 

Indeed, while public opinion remains fairly evenly split on the prospect of an independent Scotland, the preferred date of a future referendum is much clearer – and unfortunately for the SNP, it’s not on their preferred timetable.

According to polling released by Ipsos MORI last month, 44 per cent of Scots are likely to vote for the party in a general election, largely in line with its performance in December 2019. But while the rising cost of living, the state of the NHS and Scotland’s schools were all key concerns for voters, less than a fifth (17 per cent) saw the constitutional question as a priority – down 10 percentage points since November. 

Just a third of those polled were in favour of holding a second referendum in late 2023. A more recent poll, by Savanta ComRes for The Scotsman, found 40 per cent of Scots want a referendum in October next year, while 53 per cent do not.

An even bigger concern for the SNP may be a mini resurgence for Labour under leader Anas Sarwar. While the Ipsos MORI polling found Labour’s vote share up four points to 23 per cent, it also found Sarwar to be increasingly popular with the electorate.

A general election where voters are faced with the stark choice of another five years of Tory rule or the prospect of the breakup of the UK could help drive some of those who have deserted Labour in recent years back to the party.

The more immediate problem for the SNP, however, is whether the party can hold a referendum on its chosen timetable. While the Supreme Court has acknowledged receipt of the Lord Advocate’s reference, there is no guarantee it will make a ruling. There will nevertheless be an initial hearing.

When independence supporter Martin Keatings last year brought a case on whether Holyrood could legislate for a referendum, the Court of Session dismissed it as “hypothetical, academic and premature”.

At some point in the not-too-distant future, Unionists will have to face down the challenge of another referendum and make the case for the United Kingdom, a case which has become more difficult to mount since 2014 with the advent of Brexit and the rise of Boris Johnson.

While no one really knows what will happen this time around, the UK Government’s case at that point was that Keatings had no “standing” to bring the case to court, a position that will be harder to take for a Scottish Government which has published a referendum bill.   

Lord Advocate Dorothy Bain is also likely to come under an increasing amount of scrutiny. At the time of writing, she was facing demands to appear before MSPs at Holyrood to explain her decision to refer the case to the Supreme Court.

The one thing which remains clear is the position of the UK Government – that there will be no second referendum at the current time and matters of the constitution remain reserved to Westminster. Just how tenable that position will continue to be and for how long for remains to be seen.

Sooner or later a political solution will need to be found – not just a legal one. Even if the Supreme Court decides that Holyrood can legislate for a consultative ballot on independence, the UK parliament would have to enact legislation for Scotland’s departure from the Union in the event of a Yes vote.

At some point in the not-too-distant future, Unionists will have to face down the challenge of another referendum and make the case for the United Kingdom, a case which has become more difficult to mount since 2014 with the advent of Brexit and the rise of Boris Johnson.

But so too will the SNP have to reckon with their own record in government and why they have not significantly shifted public opinion in favour of separation since the last referendum, despite the epic act of self-harm that was exiting the EU and the near-universal dislike among Scots for the bumbling clown-in-chief currently residing in Number 10.

Despite its election victory last year, the sheen has well and truly come off the SNP in recent months. Its reputation for competency is gone, its holier than thou reputation shattered by the Grady scandal. 

There are those who believe Nicola Sturgeon doesn’t really want a referendum, that this is all some sort of elaborate game to distract from a failing record and an attempt to turn the heads of those increasingly at odds with one another. That seems far-fetched for a politician who has dedicated her life to the cause of Scottish independence.

But for a leader known for her prudence, she’s just taken a huge risk. She may have convinced herself, but now she must convince the Scottish people it’s a gamble worth taking.