NICOLA Sturgeon is planning to hold a consultative second independence referendum in order to bypass any legal difficulties involved in the Union being reserved, according to reports.
Whether or not Holyrood has the power to hold an independence vote is a matter of legal argument. In 2014, the UK Government granted a Section 30 order allowing the Scottish Government to legislate for the vote without legal problems.
However, Boris Johnson has remained steadfast in his opposition to a second vote and the chances of him granting a similar order seem slim.
An “illegal wildcat” referendum without Westminster’s approval, as the Scottish Conservatives have branded it, risks being challenged in the Supreme Court, or boycotted by Unionists and its legitimacy undermined.
However, SNP chiefs believe that a consultative ballot is within the powers of the Scottish Government and has a better chance of bypassing legal troubles, according to reports in The Times.
Legal experts are reportedly sceptical that asking a question with a view to opening independence discussions with the UK Government, rather than simply declaring independence, is more likely to pass the courts.
A source told The Times that the SNP leadership regards a consultative referendum as “win, win” which would not be unofficial in any way.
Constitution Secretary Angus Robertson has said that the Scottish Government plans to hold a second independence referendum in October 2023.
Sturgeon has made clear that her Government aims to have this happen with or without a Section 30 order from Westminster.
Whitehall officials, in correspondence sent before devolution, conceded that the laws in place would seemingly allow Scotland to “have referendums on anything it wants, even if it cannot enact the result”.
