Stephen Daisley Stephen Daisley

It’s time for Westminster to take on the SNP

There will not be a legally binding referendum on Scottish independence next year. It’s important to bear this in mind when chewing over Nicola Sturgeon’s latest pronouncement. The SNP leader held a press conference on Tuesday morning to publish a paper on independence in advance of a plebiscite Sturgeon says will be held in 2023.

She claims a mandate for such a vote from the 2021 Scottish Parliament election, in which the SNP and Greens ran on pro-referendum manifestos and won a majority of seats between them. This is the same Sturgeon who, asked during that campaign what a voter who backed her for First Minister but didn’t want another referendum should do, replied: ‘They should vote for me on Thursday, safe in the knowledge that getting us through this crisis is my priority.’ More to the point, the Union is reserved to Westminster, not devolved to Holyrood. It is a logical and constitutional absurdity to claim that a mandate can be obtained at an election to one parliament for the exercise of powers held by another parliament.

Westminster has not sanctioned a referendum but the SNP maintains it would be lawful, though the details are fuzzy. Glasgow University law professor Adam Tomkins has previously flagged up the Supreme Court’s robust interpretation of Section 28(7) of the Scotland Act, which says the UK Parliament retains ‘the power… to make laws for Scotland’. The legal scholar argued that any Holyrood Bill on independence ‘would surely be struck down’.

Is there a way to hold a referendum without a Section 30 Order (the legislative go-ahead from Westminster) and not fall foul of 28(7)? My layman’s brain pipes up: sure, Holyrood could just legislate for a non-binding referendum and, if the Leave side wins, wield it as a moral cudgel against Westminster. Assuming ministers took fright and rushed to make concessions — because of course they would — this little stunt could net the separatists an official referendum or another Union-enervating devolution of powers.

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