THE SNP Government published draft legislation for a second independence referendum on Friday. It was announced with some fanfare by First Minister John Swinney.
“In May, the largest number of pro-independence MSPs in history voted to support the call for powers to hold a referendum on Scottish independence to be devolved to the Scottish Parliament,” he said.
“This draft bill is simple, straightforward and direct. It proposes a clear, unambiguous question, sets out who can vote in the referendum and, once agreed, will include the date. It provides people with certainty.”
The draft Independence Referendum Bill defines the franchise for a vote, but no date.
It also sets out that the question for the referendum would ask: “Should Scotland be an independent country? Yes or No.”
It is substantially the same as the bill published by Nicola Sturgeon’s government in 2021, before the Supreme Court decision in 2022 which ruled that the power to hold any such vote is reserved to Westminster.
As such, the Scottish Government did have to caveat that the bill will essentially sit on the shelf until the “necessary powers are secured”.
Prime Minister Andy Burnham has also swiftly said he will not consider agreeing to it.
What can the draft indyref2 bill achieve?
So, what can this draft bill actually achieve? And why are the SNP publishing it?
Speaking to The National, constitutional law expert Nick McKerrell said the legislation illustrated the difficult position facing the SNP after the 2022 judgment.
“It’s even more of a symbolic thing now, the referendum bill, because we know it can’t be introduced to the Scottish Parliament,” he said.
The expert said it was possible, in some circumstances, for the Scottish Parliament to debate legislation where there was a live dispute about whether it was within Holyrood’s powers.
He pointed to disputes over Brexit-related legislation, which went through parliamentary processes before the legal position was ultimately determined.
But he said the independence referendum bill was in a different category because of the Supreme Court decision.
“Any bill in the Scottish Parliament cannot be accepted if it’s outwith the powers of the Scottish Parliament.
"You can publish it, but you couldn’t vote on it, for example, or have a discussion on it,” McKerrell said.
“What’s different about the referendum is that, almost uniquely, we already know that it’s not in the power of the Scottish Parliament, according to the Supreme Court, because they’ve already decided it.”
He added: “That’s rare, because normally it is when it’s within the parliamentary process that there are disputes over whether something is within the powers or not. But this was referred to the Supreme Court, so it’s even more of a symbolic thing now.”
When asked why the SNP have published it now, he highlighted that the party are following through with what was promised earlier this year.
Swinney had said during the Holyrood election campaign that he would seek to push forward plans to achieve independence if the SNP was voted back into power.
In the days after the SNP Government was re-elected in May, a motion in the Scottish Parliament calling on Westminster “to make a Section 30 order under the Scotland Act 1998 to devolve the powers to the Scottish Parliament to hold a referendum on Scottish independence” passed by 72 votes to 55.
This, therefore, is perhaps the natural next step.
McKerrell added: “But also it’s conference time, isn’t it? So it’s something to show that something has happened.”
The publication of the draft bill comes one day after Swinney faced criticism from within the SNP after a leaked draft conference agenda showed that no motions on Scottish independence strategy had been selected for debate.
Asked about this approach, McKerrell said it simply reflected a wider unresolved disagreement within the independence movement.
“There’s a division between those in the broader independence movement who believe that should be ignored, that you should do it anyway – which is problematic and difficult to actually enforce or do anything about,” he said.
“And those that say, well, it is the only route, and we just have to keep hammering away at that Section 30 route.”
The national conference will be held in Aberdeen from October 15-17.
