SNP plan to deliver referendum without UK consent is 'deluded and pointless', experts say

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Dan Sanderson
·5 min read
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Nicola Sturgeon has been under pressure from her own members over her failure to deliver a referendum - ANDY BUCHANAN/AFP
Nicola Sturgeon has been under pressure from her own members over her failure to deliver a referendum - ANDY BUCHANAN/AFP

An SNP plan to hold an independence referendum without the consent of Westminster has been branded “deluded” and “pointless” by constitutional experts.

At an internal SNP online assembly on Sunday, party activists and politicians discussed a new “roadmap” to independence, published at the weekend, which raises the prospect of a court battle with UK ministers if they resist an attempt to hold a new vote.

The 11-point plan states that if a majority of pro-independence MSPs are elected after May’s election, an SNP government would once again request a Section 30 order from the UK Government allowing it to organise a new referendum.

However, should the request be refused - as Boris Johnson has repeatedly insisted it would be - SNP ministers would seek to legislate for one anyway.

The strategy, written by SNP minister Mike Russell, acknowledges that the UK Government could seek to block a referendum on the grounds that it is outwith Holyrood’s powers, but adds that such court action would be “vigorously opposed by an SNP Scottish Government”.

It is silent on what would happen if the SNP lost a legal case or if unionists simply boycott a referendum organised unilaterally in Edinburgh.

“I think holding such a referendum without Westminster's authority would be ultra vires because matters connected with the Union are reserved,” Vernon Bogdanor, an expert on the British constitution and a former Professor of Government at Oxford University, said.

“If the UK Government didn't devolve the power, it would be beyond the legal competence of the Scottish Parliament to hold one, and the government could be sued for spending money ultra vires.

“Politically, it would also be pointless because I suspect the unionists would simply boycott such a referendum. If the unionists boycotted the poll you might have, say, 95 per cent for independence, but what would that prove?"

He added: "The SNP's policy is incoherent. Are they saying you could have a referendum every time they win an election in Scotland or opinion polls show a majority in favour? That would be economically ruinous and utterly destabalising.”

Advocates of the new approach insist the question of whether Holyrood has the power to hold a referendum has not been tested in court, although a ruling on a case brought by pro-independence activists is expected within days.

While the Union is reserved under the Scotland Act, it has been argued that Holyrood could hold a consultative ballot, which, like most referendums, would not be legally binding.

Alex Salmond and Nicola Sturgeon described the 2014 referendum as a once in a generation event -  David Gordon/Alamy Stock Photo
Alex Salmond and Nicola Sturgeon described the 2014 referendum as a once in a generation event - David Gordon/Alamy Stock Photo

However, Adam Tomkins, a Tory MSP and University of Glasgow academic who specialises in constitutional law, said that it was “quite clear” that the Union is reserved to Westminster.

It would also be possible for any individual to bring a legal challenge to a referendum unilaterally organised by the Scottish Government, something Mr Russell’s document does not make clear.

Mr Tomkins said: “This is a conversation that should not be happening at all because the SNP’s focus should be resolutely on rolling out the vaccination programme as quickly as possible and publishing a budget for economic recovery.

“But the document is seriously misleading, in a number of respects. The UK Government has a whole range of options which that document does not appear to take into consideration. But this is typical of Mike Russell’s blinkered view. I think he’s deluded.”

The strategy was published as Nicola Sturgeon faces growing frustration from within her own ranks over her failure to deliver a promised referendum on two previous occasions. Under her latest timetable, she has said a new vote would be held early in the next Holyrood term, suggesting a date of early 2022 by the latest.

Michael Keating, a professor at the University of Aberdeen and director of the Centre on Constitutional Change, said there was no consensus between experts over whether Holyrood had the power to hold a referendum without UK government permission.

He said: “There is dispute about that, it would have to be tested in court. But what the UK Government could do is not challenge it, just ignore it, so that they [the independence side] would have to get an absolute majority of the entire electorate for it to be convincing.”

Ms Sturgeon accused Mr Johnson of being “frightened of democracy” for refusing to agree to a new poll.

Asked if she would hold an advisory "home-made Scottish referendum" if the SNP wins in the upcoming election, she said: "I want to have a legal referendum, that's what I'm going to seek the authority of the Scottish people for in May. And if they give me that authority that's what I intend to do."