Tom Gordon: Nicola Sturgeon’s Indyref Plan B is even worse than it looks

That said, the contortions the SNP are going through with their 11-point plan for a second independence referendum are extraordinary.

Presented to the party sceptical last weekend, it says that if the SNP Government stays in power in May, it will ask the UK Government to give the nod to Indyref2 either on the basis of Holyrood’s current powers (an untested, looser deal than in 2014) or on the same basis as in 2014 (a transfer of powers under Section 30 of the Scotland Act 1998).

As both of these are doomed, given Boris Johnson’s disinclination to agree to a vote he’d probably lose, the Plan B option is for Holyrood to pass its own Referendum Bill without his approval and dare the UK Government to strike it down at the UK Supreme Court.

“Such a legal challenge would be vigorously opposed by an SNP Scottish Government,” the plan huffs, without saying what would happen if the Supreme Court upheld that challenge.

That this has been forced on Nicola Sturgeon by angst in the ranks about the lack of progress on independence is clear to see. It is a dog’s dinner.

Consider these rather different, more rational views from the First Minister.

In October 2019, she warned a Plan B was a unionist trap. “A key part of political leadership is knowing when not to make a miscalculation that those in opposing parties would like you to make.

“That is why I will not fall into the trap that out unionist opponents want me to, by deviating from our current path of ensuring the next independence referendum is legal and constitutional.

“We don’t need to be talking about Plan B when we have a perfectly good plan A.

“If we were to try to hold a referendum that wasn’t recognised as legal and legitimate - or to claim a mandate for independence without having demonstrated majority support for it - it would not carry the legal, political and diplomatic weight that is needed. It simply wouldn’t be accepted by the international community, including our EU friends and partners.”

While in January 2020 she warned the independence movement not to let frustration “take us down dead ends” or pretend there were “shortcuts or clever wheezes that can magically overcome the obstacles we face”.

On holding Indyref2 without Westminster consent, she said it had “never been tested in court”, adding: “I am not ruling that out. But I also have to be frank. The outcome would be uncertain. There would be no guarantees. It could move us forward - but equally it could set us back.”

And how it could set the SNP back. It would lead to a hellish morass. It’s not a roadmap, but precisely the dead end Ms Sturgeon feared.

On the face of it, the legal argument seems cut and dried. Schedule 5 of the Scotland Act states “the Union of the Kingdoms of Scotland and England” is a matter reserved to Westminster, making it out of bounds to Holyrood.

However there has long been pointy-headed debate over whether Holyrood could hold a non-binding, consultative referendum on independence - just to test the public mood you understand - which by itself wouldn’t technically cross the line into affecting the Union.

Then Scottish Secretary Donald Dewar was quizzed about this very issue in the Commons in May 1998 during the passage of the Scotland Bill.

He said: “It is clear that constitutional change - the political bones of the parliamentary system and any alteration to that system - is a reserved matter. That would obviously include any change or any preparations for change... A referendum that purported to pave the way for something that was ultra vires is itself ultra vires,” he said.

Nevertheless, the argument resurfaced among legal academics after the SNP won its 2011 majority.

In a January 2012 blog for the UK Constitutional Law Group, seven scholars argued Holyrood passing a Referendum Bill without a Section 30 order was a “more open question than has been generally acknowledged”. Indeed, “we believe a plausible case can be made that such a Bill would be lawful”.

Their work has given hope to frustrated Yessers ever since.

However, read a little deeper and it’s clear that the sort of Referendum Bill that might make it through Holyrood and survive a legal challenge at the Supreme Court is politically futile.

It could only fly if its “legal effect” was divorced from any “practical effect”. So it could seek people’s views on independence, but guarantee nothing beyond that. “Any further effect is both non-binding and speculative,” as the authors said.

One of the authors, Stephen Tierney, Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law, made the point more bluntly in an article in 2017.

“Crucial to the legality of such a referendum would also be its legal inconsequentiality; it would not bind the UK Government to give effect to a pro-independence outcome,” he said.

“There is a very strong possibility that the Supreme Court would also look to the political purpose and effect of a consultative referendum and conclude that this does indeed relate to the Union and is therefore outside [Holyrood’s] competence.”

Consider that for a moment. The SNP’s Plan B, its clever wheeze to secure a referendum, is to threaten the UK Government with a Bill that, even if it defied the odds and made it past a sceptical Supreme Court, would be legally “inconsequential”. Mmm.

It would also look terrible. Facing in one direction legally while nodding and winking in the other politically, it would look weird and artificial to voters, the easily boycottable result of lawyers dancing on the head of a pin.

Worse, as Prof Tierney, who advised Holyrood on the legislation for the 2014 vote said, there could be “potentially disastrous consequences for.... the health of our democracy”.

The 2014 referendum was often heated, but its basis in a Section 30 order meant there was no “bitter and acrimonious dispute about whether the result itself would be accepted”.

Pleading for a political solution, he said bringing the Supreme Court into a fight over Indyref2 rules would “throw judges into a vexed and deeply political dispute” with “no guarantee that result would be treated with respect”.

If the judges ruled it was a reserved matter “some Scottish nationalists could well accuse the court of being a biased arm of the UK state” akin to criticism of the Constitutional Court in Spain over its rulings on Catalonia.

While if the Court backed a referendum on a consultative basis “there would be a risk of a boycott by those who would refuse to engage with a referendum that was not treated as binding (situations such as Northern Ireland in 1973 and Bosnia in 1992 have shown how disastrous for democracy a referendum can be when one side decides not to participate).

“There would also be lingering uncertainty as to what, if any, respect the UK Government would give to the outcome of such a consultative process”.

Taking such big risks with the country is not a prospect to entice voters, nor even deliver independence.

Ms Sturgeon has called a Section 30 order the “gold standard” for Indyref2, but in practice, no matter how much it torments her followers, it is the only standard; the alternatives are dross.

This Plan B may be a paper tiger, but in their skittishness, the SNP have also created a hard target at which their rivals can take aim in the election.