Nicola Sturgeon knows her bid to hold an independence referendum next year is doomed but her plan is part of a “political game” designed to “stoke up ill-feeling against Westminster”, a former Supreme Court judge has said.
Lord Sumption, who sat on the Supreme Court between 2012 and 2018, said that while there was “no such thing as an open and shut case”, under the law that established Holyrood it was clear that the future of the UK “remains in the hands of Westminster”.
The First Minister last week unveiled plans to hold a referendum on October 19 next year and said the Lord Advocate, her most senior law officer, had asked the Supreme Court to rule on whether Holyrood had the powers to pass the legislation on its own.
However, a string of experts have said the court is almost certain to rule against her, if it even agrees to issue a judgement, which it may refuse to do on the grounds that a Bill has not yet been introduced to the Scottish Parliament.
The SNP has sought to convince its activists that a referendum will take place on its preferred timetable, yesterday launching a pre-referendum "voter registration drive" with an announcement that did not acknowledge that a vote may not happen.
However, Lord Sumption said he doubted Ms Sturgeon expected to succeed at the Supreme Court and was instead preparing to use a ruling to attack the UK Government. She has said that if a referendum is blocked, she will attempt to turn the next general election into a “de-facto referendum” on leaving the UK.
“I doubt whether she even wants a referendum in October 2023,” Lord Sumption said, in a column for the Mail on Sunday. “It would be a big risk for her party at a time when the economics of independence look increasingly bleak and the polls have hardly changed since 2014.
“But she would rather be stopped from holding a referendum by Westminster than by her own cautious instincts. It looks as if the real purpose of the reference is to stoke up ill-feeling against Westminster as part of a much longer political game.”
Lord Sumption said he believed it was “absurd” to claim that it was undemocratic for the UK Government to have a say on a future independence referendum. Number 10 has said it will refuse to allow a vote next year to take place.
“The basic architecture of the Scotland Act is that a very large measure of autonomy is conferred on the Scottish Parliament to deal with the internal affairs of Scotland, but the future of the UK remains in the hands of Westminster,” he added.
Meanwhile, Alex Salmond said yesterday that the court would “instinctively side with the UK Government” on the question of a referendum.
He said that while the plan to then turn the next general election into a de-facto referendum “had possibilities”, it was as yet unclear how even a victory, as defined by Ms Sturgeon, would translate to independence.
James Mitchell, professor of public policy at the University of Edinburgh and an expert on the SNP, said that the plan laid out by Ms Sturgeon last week “looks like a desperate last throw of the dice from a leader aware that her record in government is increasingly coming under question.”
He added: “It is a massive gamble and likely Nicola Sturgeon’s last hurrah. The danger is that it will leave her party with a very unhappy legacy.”
The SNP has pledged to publish a series of papers over the coming months setting out policies in areas such as currency, borders and defence in an independent Scotland.
However, Donald Cameron, constitution spokesman for the Scottish Tories, said Lord Sumption had been correct to see Ms Sturgeon’s strategy as nothing more than “a cynical attempt to stir up grievance with Westminster.”
“This tactic is straight out of the SNP playbook,” he said. “Pursuing a legal case with the UK that they know they could lose, so that they can argue the outcome is undemocratic.”
A spokesman for the Scottish Government said: “Decisions on the future of Scotland should be for the people who live here. The Scottish Government was elected with a commitment to enable the people of Scotland to express their views on independence in a legal, constitutional referendum, a position that is supported by a majority in the Scottish Parliament."