Michael Gove’s cunning plan to prevent indyref2 will fail, here's why

Firstly the SNP had failed to win a majority and so had no political mandate to call indyref2. Secondly, because Alex Salmond and Nicola Sturgeon had declared that the 2014 referendum was a “once in a generation” event the Scots would have to wait another 20-40 years to be “allowed” a referendum.

However during these interviews Gove was unusually coy about whether the British Government would challenge the legality of any indyref2 bill.

That coyness was abandoned yesterday in an interview in the Daily Telegraph with Gove’s clear statement that Westminster will refuse to grant section 30 permission to hold indyref2.

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However Gove remained coy about a legal challenge to the validity of referendum legislation presumably because he knows that having a court action which is a head to head battle between the Scots and British Governments, a legal version of a Home International, is not a good look and so a different tactic is needed.

The UK's Supreme Court in Parliament Square

A few weeks ago there were repeated stories in the Tory press a few weeks that instead of directly challenging the legislation directly themselves, under section 33 of the Scotland Act that the Government intends to rely on a “concerned citizen” raising a private court action to oppose the holding of a referendum in a way analogous to the Brexit and Prorogation of Parliament cases raised but Gina Miller, in England and Joanna Cherry in Scotland.

The legal battle would then be between a “plucky” Unionist and the Scots Government hoping to turn Holyrood from David fighting the Westminster Goliath into a Goliath fighting a Scots resident.

However it seems to me that Gove’s plan unlikely to succeed in diminishing the political backlash to Westminster opposition to indyref2.

There are three reasons why Gove’s plan is likely to fail.

Firstly, the use of a “MacMiller” figure to oppose Holyrood legislation is so transparent that it will fool no one. It will be obvious to the world that MacMillar is merely Boris Johnson’s court room sock puppet.

Secondly, by resorting to law to attempt to thwart the mandate of the SNP and Scottish Greens is so obviously anti-democratic that it is likely to convince more Scots to support independence not fewer.

Thirdly, the MacMiller route will drag out the legal process far longer than if the British Government were to have the courage of its convictions and exercise its right to object to indyref2 legislation under section 33.

This is because a section 33 case goes directly to the Supreme Court. The first hearing of the case will also be its last as there is no higher UK court than the Supreme Court.

However a MacMiller court case will have to commence in the Outer House of the Court of Session and then be appealed to the Inner House and only then to the Supreme Court.

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In a case of this constitutional magnitude it does not matter who wins the initial case as it is certain that the losing side will appeal all the way to the Supreme Court.

The effect of such a process will simply be to remind Scots that their destiny is not to be determined by democracy but by the courts.

In many ways this would be the perfect recruiting campaign for Yes supporters. If indyref2 were ruled lawful by the Supreme Court that would be a win for the independence movement. But even if indyref2 were ruled unlawful then that might well increase support for independence.

Making it plain that the Union is a legal prison not a political partnership is no way to win the hearts of undecided Scots and would likely create a festering resentment which will hasten the eventual demise of the Union.

Scott Crichton Styles is a senior lecturer in law at the University of Aberdeen