Indyref2: Sturgeon’s clever plan will wrongfoot the UK Government

Mike Russell’s Bill has three key merits. First, it establishes a solid legal platform, into which provision for a second independence referendum can fit. Second, it leaves the Scottish Government with considerable initiative in deciding when and how this will work. Lastly, it deprives the UK Government of its weapon of choice to stymie a second independence poll. Let’s look at the detail.

The 2014 independence poll was underpinned by two Acts of the Scottish Parliament, each of which had to bounce through months of parliamentary scrutiny before hitting the statute book.

This Bill proposes to give Scotland a standard rulebook for referendums, with standard spending rules and a standard franchise, whether we’re asking the people about their constitutional future, or the introduction of congestion charges.

On the franchise, the Bill follows the best traditions of open and inclusive Scottish democracy. Whatever the referendum, it provides that folk aged 16 and over should be able to cast ballots, as should all EU nationals and commonwealth citizens who call Scotland home.

At its heart, the Bill gives Scottish ministers the power to call a referendum, set a question and choose a date – subject to a single positive vote in the Scottish Parliament.

To establish the legal basis for a poll under this new dispensation, there need be no tortured legislative process, no three stages of committee hearings and votes in Holyrood. The process is streamlined.

The second cunning of Mike Russell’s proposals is that they neatly side-step issues of legislative competence – for now. The union of the kingdoms is a reserved

matter under Schedule 5 of the Scotland Act.

It is on this nail that the argument Holyrood can’t lawfully call a second independence referendum hangs. There are legal arguments on both sides of this controversy – but bracket those for a moment. Look just at this Bill.

Despite the best efforts of the Conservative Party to scrabble around for some legal pretext to object to yesterday’s proposals, there’s no doubting they fall full square within the Holyrood’s legislative competence. You won’t find referendums listed in the Scotland Act’s long list of reserved matters. The legal arguments suggesting otherwise are threadbare.

But here’s where it gets spicy – and a wee bit technical. So bear with me.

If passed, the Referendums Bill will confer new powers on Scottish Ministers. The Scotland Act gives senior UK government lawyers in Whitehall the power to refer Acts of the Scottish Parliament directly to the Supreme Court if they think the legislation goes beyond MSPs’ powers.

We saw this at work in the controversial Brexit Continuity Bill case, where Theresa May’s Government used it as a cynical pocket veto to strip Holyrood of powers. It has been widely assumed that UK ministers would try the same trick with a future Independence Referendum Bill, using their powers in section 33 of the Scotland Act to fast-track their legal challenge to any Bill to London, in the hopes its judges would find the Bill was outside Holyrood’s legislative competence.

But Mike Russell’s proposals ingeniously disarms the UK government of its best weapon. In contrast with its treatment of primary Holyrood legislation, the Scotland Act gives the UK Government no fast track to the Supreme Court to challenge decisions of the Scottish Government.

And this is precisely what ordering a second independence referendum poll under the Referendums (Scotland) Bill would amount to.

Ladies and gentleman, this is what statecraft looks like. We know the UK Government is prepared to play dirty with the UK’s ramshackle constitution. This Bill shows the Scottish Government is more than able for their game.