THE starting gun has been fired on the independence campaign and a proposed date has been revealed for a second referendum.
Now the question is what the path to another vote will be if the UK Government continues to insist it will not hand the powers to hold indyref2.
Nicola Sturgeon has suggested the vote will be held with or without a Section 30 order – the transfer of powers on the constitution from Westminster to Holyrood which was agreed ahead of the 2014 referendum.
The Scottish Government has yet to outline firm details on how exactly this will be done – although the First Minister said work to explore alternatives was “well underway” with a “significant update” coming “very soon indeed”.
Here we examine some of the options – and the pitfalls which could lie ahead.
Securing a Section 30 order
The simplest way for indyref2 to take place would be if Boris Johnson agreed to a Section 30 order – but he refused in 2020, and shows no sign of changing his position.
Asked what would happen in the event of this continuing to be denied, Constitution Secretary Angus Robertson has said he sees “no reason” for the UK Government to do so.
The SNP has in recent years been ramping up the message that the UK Government is "denying democracy" by refusing to agree to another referendum.
Dr Nick McKerrell (below), senior law lecturer at Glasgow Caledonian University, said part of the new campaign, which has been launched with an opening “scene setter” paper on independence, was to put pressure on Johnson.
He added: “But that is a political campaign, because there is no legal pressure to force him to do a section 30.
“What you can’t do is make a government do it legally – there is no procedure in court that would force a Section 30 order. It is up to the Government to give it.”
Pushing ahead without a Section 30
The Scottish Government has formally requested a Section 30 order twice since the referendum of 2014 – which was rejected by Theresa May in 2017 and again by Boris Johnson two years later.
McKerrell said it was interesting there now seemed to be a “non-position” on whether another request would be put in.
He said: “The reason that is significant is that if you write another Section 30 invitation and say please give us one and the answer is no - that has been the legal position so far - it that looks like the only route you think a referendum can come from.
”If they don’t do that, it seems to me that must be what their other thinking is – they proceed without formally asking.”
The Scottish Government published a draft independence referendum bill in March 2021, which intends to make provisions for holding a vote on leaving the UK. It has yet to be introduced to the Scottish Parliament.
McKerrell said one potential stumbling block is that it will have to have the legal approval of Scotland’s Lord Advocate, Dorothy Bain QC.
“That might be a factor in why the bill hasn’t been put through parliament yet – without that it couldn’t be presented,” he said.
“Perhaps they are negotiating with the Lord Advocate to say if we don’t have a Section 30 order what can we do to get the bill through.
“This idea of saying we are not going for the Section 30 route is part of the process of maybe coming up with a form of words or a type of bill that the Lord Advocate would sign off and allow it to be debated in Parliament first of all.”
Alba general secretary Chris McEleny, who long called for a Plan B route to a referendum, has urged the SNP to reveal its strategy to an "independence convention" of politicians to rally the movement behind it.
Legal challenges
If the Lord Advocate does support the bill, the Scottish Parliament could rapidly introduce it – and with a majority of pro-independence MSPs it would be expected to pass without difficulty.
But that is expected to provoke legal battles with predictions it will end up in the Supreme Court.
Debate has been raging over whether a referendum run by Holyrood without Westminster’s permission could be ruled legal by the UK’s top judges.
A legal challenge could come from the UK Government – but McKerrell said another possibility would be an individual or group taking action, such as the court bids to oppose named person legislation and introduce minimum pricing for alcohol.
He said: “One route is UK Government sits on its hands and doesn’t challenge it. It gets passed by the Scottish Parliament and then a campaign group saying no to a referendum is launched and challenges it in the Scottish courts.
“That could go all the way to the Supreme Court.”
But he said there was also a question of whether the issue ending up in the courts would add to the momentum for independence.
“That is a political gamble – how big is the support for having a referendum?” he said.
A "wildcat" referendum?
The launch of a fresh independence campaign has prompted the Tories to brand it a push for a "wildcat referendum".
Launching the first of the papers on independence, Sturgeon said she will set out a “lawful way” forward without a Section 30 order if required.
McKerrell said the idea being put forward by opposition politicians of a "wildcat referendum" was a “fairly bogus argument” as it was unclear what it would mean in a Scottish context.
He said: “They often compare Catalonia and the referendum there – where it was explicitly illegal, because the constitution says you can’t have a referendum on independence in Spain.
“The Catalan government organised that in open defiance of the Spanish constitution. “That was a wildcat referendum – there was no legal nuance there.”
McKerrell said in a Scottish context it would likely mean one held even if the Supreme Court rules it is not within the powers of the Scottish Parliament.
But he said this would bring issues of how the Scottish Government would fund and organise it if it does not have legal authority.
“Are you talking about random activists setting up votes? I don’t think the SNP or Greens would ever envisage that as it doesn’t have much authority behind it,” he said.
“I think the wildcat referendum is a bit of a red herring as it is difficult to see given the legal structures of devolution how it could even be organised.”
