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Nicola Sturgeon’s two-pronged approach to gaining Scottish independence

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EDINBURGH — Nicola Sturgeon is taking the fight for Scottish independence to court. And she’s already preparing for failure.

In a speech that even supportive allies privately described as risky, the Scottish first minister set out plans Tuesday to legislate for a non-binding second referendum on independence, to take place on October 19, 2023.

With questions swirling about the legality of such a move, Sturgeon said her government would first seek to establish its power to do so at a hearing of the U.K. Supreme Court — and has a “Plan B” up its sleeve should it lose.

Ahead of the speech, the stakes were high for Sturgeon.

Scotland’s constitutional debate was widely seen to have reached an impasse, with Sturgeon’s electorally dominant Scottish National Party (SNP) regularly claiming a mandate for another referendum, and the U.K. government repeatedly pointing in response to nationalist promises that the first vote, in 2014, would be a “once in a generation” event.

The legal route for that 2014 poll came via a temporary transfer of powers from London to Edinburgh, known as a Section 30 order, signed off by then-PM David Cameron. Current U.K. leader Boris Johnson has said repeatedly he will not countenance doing the same.

Neither unionists nor nationalists believe there is any realistic prospect of that position changing, even if the beleaguered Johnson is replaced in Downing Street by another Conservative.

Under growing pressure from the hawkish wing of the nationalist movement to make some kind of progress after years of stalemate, Sturgeon had pledged to legislate for a referendum within the current Scottish parliamentary term — despite Westminster’s refusal to grant the power to do so.

Any effort she made to press ahead was expected to face an immediate legal challenge, either from U.K. government lawyers or from private, pro-Union citizens.

Sturgeon’s big gambit Tuesday was therefore to preempt such a challenge, announcing that the Scottish government’s top law officer had written to the U.K. Supreme Court requesting a ruling on whether Scotland has the authority to hold a consultative referendum.

The calculation within Sturgeon’s inner circle is that establishing the legality of a referendum before legislating for it would send an important message to crucial swing voters easily put off by the nationalist movement’s more aggressive elements, while killing off opposition attacks about the threat posed by “wildcat” or “Catalonia-style” illegal referendums.

The aim is to show the technocratic Sturgeon — a qualified solicitor — prefers a cautious and strictly legal path to independence.

But caution alone looks unlikely to achieve a meaningful second referendum — let alone outright independence.

‘Yes’ activists gather in George Square prior to the 2014 referendum on Scottish independence | Jeff J Mitchell/Getty Images

A string of Scottish government defeats at the Supreme Court in previous battles over Holyrood’s authority adds to unionist optimism that judges will rule against Sturgeon, given powers over constitutional issues are clearly reserved to Westminster.

Last October, the court ruled that two proposed pieces of Scottish government legislation were outside the parliament’s legislative authority. Judges also previously rejected arguments that Scotland should have a say in starting the formal process of Brexit.

Even if the court does rule in the Scottish government’s favor, and preparations begin for a referendum next year, some will seek to cast doubt over its legitimacy. Douglas Ross, leader of the Scottish Conservatives, said his party wouldn’t take part in any “pretend poll” that is not legally binding.

“[Sturgeon] ignores the crucial point that while legally her bill might, depending on the Supreme Court judgment, be the same as in 2014, it is politically totally different,” said James Mitchell, a professor of public policy at Edinburgh University.

Plan B

The second — crucial — tenant of Sturgeon’s new strategy, therefore, is to prepare for her legal route to fail.

Sturgeon said defeat at the Supreme Court “would not be the end of the matter,” vowing that if a “lawful, constitutional referendum” is not possible, the next U.K. general election — expected in 2024 — would become a “de facto referendum.”

What this means in practice remains somewhat unclear, but the expectation is that the SNP would campaign essentially on a single issue — that Scotland should become an independent nation — and treat a victory with more than 50 percent of the vote as it would a “Yes” vote in a referendum.

This would require the SNP’s best-ever election result, topping even the 49.97 percent secured in its 2015 landslide.

While such an outcome would not be legally binding upon the U.K. government, the belief inside Sturgeon’s team is that Westminster would ultimately buckle under the sheer weight of her democratic mandate.

Sturgeon told reporters after the speech that she saw no other route to independence.

“If the Supreme Court, and I hope this is not the outcome, say the law means that there’s no legal way for the Scottish parliament to hold a referendum without the consent of Westminster, Scotland has to have some way of expressing its view,” the first minister said.

Sturgeon insisted that any suggestion this could effectively amount to a universal declaration of independence was “ridiculous.” Yet it was noticeable her plan was welcomed by the hawkish elements of the independence movement, which had been frustrated with her previous caution.

First Minister Nicola Sturgeon speaks at a news conference on a proposed second referendum on Scottish independence | Russell Cheyne/Pool/Getty Images

Angus MacNeil, an SNP MP and occasional critic of Sturgeon who had previously proposed similar plans, said he was “over the moon.”

“Plan B is now very much live,” he said. “It can be used as a stick to ensure Plan A, or it can be used in itself should the Plan A of holding a referendum fail.”

Even Sturgeon’s predecessor as first minister, her mentor-turned-nemesis Alex Salmond, broadly welcomed her statement.

With the pro-Sturgeon party grassroots and center ground footsoldiers now effectively on the same page as the more hardline nationalists, Sturgeon has — if nothing else — at a stroke reunited a pro-independence movement that had grown bitterly divided about the best route to a second referendum.

Electioneering

There may be significant implications, too, for the Westminster parties should the SNP choose to fight the next general election on such terms.

Sturgeon was quick to say that if the courts struck down her referendum plans, it would be “the fault of Westminster legislation,” effectively blaming the limited devolution laws passed in London for denying what she terms “Scotland’s democratic will.”

The SNP hopes such rhetoric could both embolden its base and convince undecided voters to turn against unionist parties.

“There is a strong message of tapping into a sense of grievance if the Supreme Court says no,” Mitchell said.

Faced with an election fought on such terrain, pro-Union thinkers believe there must be an immediate focus on reforming the U.K. to stunt nationalist arguments about the need for independence.

“Unionists need to be bolder — not antagonizing, but quietly reforming for the better,” said Luke Graham, a former adviser to Johnson on the Union.

For the opposition Labour Party, the salience of independence and the SNP carries its own electoral risk. Tory campaign posters from 2015 that featured the party’s then-leader Ed Miliband in Sturgeon’s pocket are thought to have convinced many English voters to plump for Cameron’s Tories instead.

As Sturgeon again looks to make the prospect of Scottish independence a central issue at the next election, members of Labour leader Keir Starmer’s team will fear repeat attacks are on the cards. PM Johnson may yet come to consider this Tuesday his lucky day.

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