> NICOLA Sturgeon has said she will set the legislative timetable for a second independence referendum in “weeks” despite admitting we are “in the throes of a global pandemic that is still unpredictable”.
The First Minister said she was “determined” to give people a choice over their future, and being “on the downward slope” of the Omicron variant paved the way for that next year.
“The key thing is that we will take these steps in a timescale that will facilitate that referendum before the end of 2023, which was the commitment I made at the election, and was elected on overwhelmingly,” she said on the BBC’s Sunday Morning Show.
However in the same interview, Ms Sturgeon also said the pandemic remained highly unpredictable when she defended her Government’s Covid passports scheme.
>Asked when Scotland would scrap them, the First Minister said it was impossible to say “because we’re in the throes of a global pandemic that is still unpredictable”.
Ms Sturgeon said she wants a new vote on leaving the UK, Covid permitting, by the end of 2023, although Boris Johnson has said he will block it.
Ms Sturgeon has said she will put in place the measures to facilitate a vote regardless, including passing a Referendum Bill at Holyrood, effectively daring the UK Government to challenge it at the Supreme Court.
However the Bill did not appear in the legislative timetable for the current Holyrood year, and there is still no date for its introduction.
Asking when the legislation would be tabled, Ms Sturgeon said: “The preparatory work for that is underway right now. We haven’t decided on the date that we would seek to introduce the Bill. We’ll decide that in the coming weeks.
“But my intention is to take the steps that will facilitate a referendum happening before the end of 2023. That’s the proposition that just short of a year ago I fought an election on, and was re-elected as First Minister, my party was re-elected with a historically high share of the vote.
“This is about democracy. This is about allowing the people of Scotland to choose our own future, and for goodness’ sake, when we look at everything that has been happening over years now in Westminster – the chaos, the instability, the unpredictability – then I think there are a growing number of people in Scotland who think, actually, we can do much better as an independent country in charge of our own fate.”
>Host Sophie Raworth read Ms Sturgeon a list of the times she had previously promised moves towards Indyref2, including 2017, 2018, 2019, 2020, and 2021.
“When is going to be the right time?” Ms Raworth asked.
Ms Sturgeon ignored the premise of the question and confined her answer to saying that for the past two years she had prioritised the Covid pandemic and put Indyref2 on hold.
She said: “I am determined – I’ve won an election on this basis – to give people in Scotland the choice over our future and I believe that when that choice comes people will choose an independent future.
“The preparatory work for that is underway and will determine the precise date for introducing that legislation in due course. We are hopefully… on the downward slope of this wave of Omicron which clears the way for us to do that.
“The key thing is that we will take these steps in a timescale that will facilitate that referendum before the end of 2023, which was the commitment I made at the election, and was elected on overwhelmingly.”
>She admitted some of the recent restrictions had had a “very adverse effect” on businesses, particularly hospitality, however she said she thought they had been worth it.
She said doing nothing would not have been better or risk free.
Asked about the Scottish Government’s own evidence suggesting limited benefits from Covid passports, Ms Sturgeon was asked if she would bring them to an end or not.
She said: “Eventually, yes, I hope. More than hope, of course they will come to an end.”
Pressed for more detail, she said: “Look, I’m not going to sit here and tell you a date for that because I would literally be making it up, because we’re in the throes of a global pandemic that is still unpredictable.”
Asked if She envisaged people still wearing face masks for months or years to come, she said: “I hope not. I don’t want any of these measures to be in place for any longer than is necessary, but masks are something we can do. None of us enjoy wearing them, but they are perhaps not the biggest handicap to endure in order to try and stem transmission.
“So while they can make a difference to controlling the virus, then I think it is something we should do. I would suggest that it is England that is the outlier here, not Scotland, Wales, Northern Ireland or many other countries around the world.”
weird, no mention of Brexit.
The union is dead, independence is coming.
>The key thing is that we will take these steps in a timescale that will facilitate that referendum before the end of 2023
I mean you won’t but ok, have fun with that Nicola
The majority, if not unanimous, legal opinion is that even a ‘advisory’ referendum is outside the power of the Scottish parliament.
To quote the Lord’s Constitution Committee on the significance of (properly orchestrated) Referendum:
>Building on this last point, it might be contended that, if a referendum were incapable by itself of delivering independence, then it follows that it should not be construed as having the “effect” of relating to a reserved matter (and that it should accordingly be held to be within the legislative competence of the Scottish Parliament). This argument is seriously flawed, however, as it rests on a misapprehension as to the nature of referendums. Referendums in the UK are advisory (rather than binding) in the sense that Parliament remains sovereign: in exercising its sovereignty Parliament could legislate so as to override or ignore the result of a referendum. Whilst true as a matter of strict law, however, the fact should not be overlooked that something can be binding in the British constitutional order without it being legally required in the strictest sense. Referendums are not opinion polls: their purpose is not to test public opinion, but to make decisions. They are appeals directly to the people to make a decision that, for whatever reason, is felt to be more appropriately made by the public than by a legislature. As we observed in 2010 in our report on referendums and their place in the UK constitutional order, even where a referendum was legally only advisory, “it would be difficult for Parliament to ignore a decisive expression of public opinion”.
If Scotland was to hold a referendum, it couldn’t hold a referendum with constitutional weight as described above without a Section 30 order. It definitely doesn’t have that power, since it is clearly “related to” a reserved matter as the Lords argue. To have a chance of passing legal muster it would have to hold a ‘political instruction’ type referendum (a type of poll that arguably doesn’t meet the definition of referendum set out by the Lords above).
But if you look up in that quote, you’ll see the Lords give this argument short shift – saying that it is ‘seriously flawed’ and would not be legal.
Stephen Tierney has argued this kind of referendum would be legal.
>In the Herald on 11 January 2012, for example, Professor Stephen Tierney argued as follows: “If a question is carefully crafted, asking people whether or not their preference is for independence and making clear this would only be treated by the Scottish Government as a political mandate to enter negotiations, this would seem to fall within competence”.
>It was always doubted that, under the framework of the Scotland Act, the Scottish Parliament had the legislative competence to pass a Referendum Act. Aspects of the constitution, including the “Union of the Kingdoms”, are reserved matters. The weight of opinion, though by no means unanimous, was that a referendum, regardless of its wording or structure, necessarily “related to” that reserved matter within the meaning of s29(2)(b).
As I quoted above, Graeme Cowie (University of Glasgow graduate and Senior Clerk for the Constitutional Law Researcher with the House of Commons Library) argues that both models of referendum (constitutionally meaningful and political direction) are out with the powers of the Scottish Parliament and government. As the above quote also shows, this is the majority view. And even among those who do think there is a legal path to a unilateral referendum, it is only support for a political instruction referendum..
As the quote says, this is the majority view.
And of course this is what Parliament thought when they were passing the Scotland Act in the first place.
>Lord Sewel: My Lords, I had hoped that we had succeeded in Committee in clarifying that, under the Bill as drafted, the Scottish parliament will not be able to legislate to hold a referendum on independence because the union of the Kingdoms is a reserved matter. It is not only the constitution that is reserved, as the noble Baroness, Lady Carnegy of Lour, observed; it is absolutely explicit in paragraph 1(b) of Schedule 5 that, “the Union of the Kingdoms of Scotland and England”,” is reserved, as the noble Lord, Lord Renton reminded us.
The Court of Session also gave a rather big hint in some recent dicta.
>[66] The question would have been whether an Act to hold a referendum on Scottish Independence “relates to” (s 29(2)(b)) “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom” (sch 5 part I para 1(b) and (c)) having regard to its effect in all the circumstances (s 29(3)). The Act would relate to these reserved matters if it had “more than a loose or consequential connection with them” (UK Withdrawal from the EU (Legal Continuity (Scotland) Bill 2019 SC (UKSC) at para [27], quoting Martin v Most 2010 SC (UKSC) 40, Lord Walker at para [49]). Viewed in this way, it may not be too difficult to arrive at a conclusion, but that is a matter, perhaps, for another day
>The Act would relate to these reserved matters if it had “more than a loose or consequential connection with them” (UK Withdrawal from the EU (Legal Continuity (Scotland) Bill 2019 SC (UKSC) at para [27], quoting Martin v Most 2010 SC (UKSC) 40, Lord Walker at para [49]).
The legal test is if it “relates to” a reserved matter. Why does making something non-binding mean it doesn’t relate to something? A ref on secession clearly relates to the union, even if it cannot, on its own, give legal effect to such a break. Therefore a referendum on the union would be a reserved matter regardless if it’s advisory or not
And also the recent UN CRC ruling has only made it less likely a referendum can occur without Westminster’s approval
>This judgment was of particular interest to Scottish unionists as it may affect the Scottish Parliament’s ability to legislate for a future independence referendum.
>The SNP government has a strong preference for an agreement with the UK government on a second referendum, as happened in 2014, but it has never conceded that it could not call a referendum without Westminster’s authorisation. If there is no agreement with Westminster on this, the SNP has stated that it will introduce its own referendum bill.
>Former Scottish Conservative MSPs Adam Tomkins and Ruth Davidson were quick to point out that the Supreme Court’s approach in this judgement would stop any such bill. Tomkins claims that such a bill would “impede Parliament’s ability to make effective law for the UK. The Supreme Court is not going to let that happen.”
>This may be true but there is also a finer point on how the judgment affects the possibility of a referendum. The Union is a reserved matter under the Scotland Act, but the effect of this has never been conclusively settled, and some academics and politicians have long argued that a consultative referendum may be legal. Key to this is the precedent from the case of Robinson v Secretary of State for Northern Ireland that devolution statutes, as constitutional measures, should be interpreted “generously and purposively” in light of the aims of the provisions, instead of a literal interpretation of the words on the page.
>This suggests that if a referendum bill was brought by the SNP in Scotland, the Supreme Court could potentially interpret the Scotland Act in a “generous” way to allow it. The provision in the Scotland Act that reserves matters that ‘relate’ to the Union could be interpreted in a narrow fashion, allowing the Scottish Parliament to pass a referendum bill that merely asks the opinion of the Scottish people without itself affecting the status of the Union.
>However, the recent Supreme Court judgment deals a final blow to this possibility. The judgment (following in the footsteps of the Continuity Bill ruling) states that the “Scotland Act must be interpreted in the same way as any other statute”, and the Robinson precedent on interpretation seems to have been thoroughly rejected.
>It is therefore very difficult to see any possible pathway for SNP legislation on a second referendum to survive a Supreme Court challenge.
Also Scots law is just common law which statute law from Westminster can override and the GFA applies to NI only and the Smith commission isn’t law nor legally binding
TLDR: The only mechanism for a referendum to occur is Westminster granting a section 30
I hope Scotland decides to leave the UK to be honest. They’d be most welcome.
Better sooner than later, in my opinion.
I thought she promised no independence talk until the pandemic was over.
All I can say as I read this thread is that I am proud of my country for giving the people of New Caledonia three referendums. The people of Scotland deserve another referendum because of the Brexit. And I’m not saying that because I want them to leave the UK. If they choose to do so or stay, that’s their choice.
12 comments
> NICOLA Sturgeon has said she will set the legislative timetable for a second independence referendum in “weeks” despite admitting we are “in the throes of a global pandemic that is still unpredictable”.
The First Minister said she was “determined” to give people a choice over their future, and being “on the downward slope” of the Omicron variant paved the way for that next year.
“The key thing is that we will take these steps in a timescale that will facilitate that referendum before the end of 2023, which was the commitment I made at the election, and was elected on overwhelmingly,” she said on the BBC’s Sunday Morning Show.
However in the same interview, Ms Sturgeon also said the pandemic remained highly unpredictable when she defended her Government’s Covid passports scheme.
>Asked when Scotland would scrap them, the First Minister said it was impossible to say “because we’re in the throes of a global pandemic that is still unpredictable”.
Ms Sturgeon said she wants a new vote on leaving the UK, Covid permitting, by the end of 2023, although Boris Johnson has said he will block it.
Ms Sturgeon has said she will put in place the measures to facilitate a vote regardless, including passing a Referendum Bill at Holyrood, effectively daring the UK Government to challenge it at the Supreme Court.
However the Bill did not appear in the legislative timetable for the current Holyrood year, and there is still no date for its introduction.
Asking when the legislation would be tabled, Ms Sturgeon said: “The preparatory work for that is underway right now. We haven’t decided on the date that we would seek to introduce the Bill. We’ll decide that in the coming weeks.
“But my intention is to take the steps that will facilitate a referendum happening before the end of 2023. That’s the proposition that just short of a year ago I fought an election on, and was re-elected as First Minister, my party was re-elected with a historically high share of the vote.
“This is about democracy. This is about allowing the people of Scotland to choose our own future, and for goodness’ sake, when we look at everything that has been happening over years now in Westminster – the chaos, the instability, the unpredictability – then I think there are a growing number of people in Scotland who think, actually, we can do much better as an independent country in charge of our own fate.”
>Host Sophie Raworth read Ms Sturgeon a list of the times she had previously promised moves towards Indyref2, including 2017, 2018, 2019, 2020, and 2021.
“When is going to be the right time?” Ms Raworth asked.
Ms Sturgeon ignored the premise of the question and confined her answer to saying that for the past two years she had prioritised the Covid pandemic and put Indyref2 on hold.
She said: “I am determined – I’ve won an election on this basis – to give people in Scotland the choice over our future and I believe that when that choice comes people will choose an independent future.
“The preparatory work for that is underway and will determine the precise date for introducing that legislation in due course. We are hopefully… on the downward slope of this wave of Omicron which clears the way for us to do that.
“The key thing is that we will take these steps in a timescale that will facilitate that referendum before the end of 2023, which was the commitment I made at the election, and was elected on overwhelmingly.”
>She admitted some of the recent restrictions had had a “very adverse effect” on businesses, particularly hospitality, however she said she thought they had been worth it.
She said doing nothing would not have been better or risk free.
Asked about the Scottish Government’s own evidence suggesting limited benefits from Covid passports, Ms Sturgeon was asked if she would bring them to an end or not.
She said: “Eventually, yes, I hope. More than hope, of course they will come to an end.”
Pressed for more detail, she said: “Look, I’m not going to sit here and tell you a date for that because I would literally be making it up, because we’re in the throes of a global pandemic that is still unpredictable.”
Asked if She envisaged people still wearing face masks for months or years to come, she said: “I hope not. I don’t want any of these measures to be in place for any longer than is necessary, but masks are something we can do. None of us enjoy wearing them, but they are perhaps not the biggest handicap to endure in order to try and stem transmission.
“So while they can make a difference to controlling the virus, then I think it is something we should do. I would suggest that it is England that is the outlier here, not Scotland, Wales, Northern Ireland or many other countries around the world.”
weird, no mention of Brexit.
The union is dead, independence is coming.
>The key thing is that we will take these steps in a timescale that will facilitate that referendum before the end of 2023
I mean you won’t but ok, have fun with that Nicola
She’s got a wee flag, though.
Our door is open for you guys:)
Since Boring has locked me out of the thread:
(https://www.reddit.com/r/europe/comments/sb4rq5/sturgeon_to_set_timetable_for_indyref2_bill_in/htxuxs3/?utm_source=share&utm_medium=ios_app&utm_name=iossmf&context=3)
This is how every country on Earth works, look at Catalonia or Kurdistan
In response to u/mod_bot_for_this_sub cause the person who initiated the thread has blocked me (https://www.reddit.com/r/europe/comments/sb4rq5/sturgeon_to_set_timetable_for_indyref2_bill_in/hty0v1m/?utm_source=share&utm_medium=ios_app&utm_name=iossmf&context=3) :
The majority, if not unanimous, legal opinion is that even a ‘advisory’ referendum is outside the power of the Scottish parliament.
To quote the Lord’s Constitution Committee on the significance of (properly orchestrated) Referendum:
>Building on this last point, it might be contended that, if a referendum were incapable by itself of delivering independence, then it follows that it should not be construed as having the “effect” of relating to a reserved matter (and that it should accordingly be held to be within the legislative competence of the Scottish Parliament). This argument is seriously flawed, however, as it rests on a misapprehension as to the nature of referendums. Referendums in the UK are advisory (rather than binding) in the sense that Parliament remains sovereign: in exercising its sovereignty Parliament could legislate so as to override or ignore the result of a referendum. Whilst true as a matter of strict law, however, the fact should not be overlooked that something can be binding in the British constitutional order without it being legally required in the strictest sense. Referendums are not opinion polls: their purpose is not to test public opinion, but to make decisions. They are appeals directly to the people to make a decision that, for whatever reason, is felt to be more appropriately made by the public than by a legislature. As we observed in 2010 in our report on referendums and their place in the UK constitutional order, even where a referendum was legally only advisory, “it would be difficult for Parliament to ignore a decisive expression of public opinion”.
https://publications.parliament.uk/pa/ld201012/ldselect/ldconst/263/263.pdf#page=10
If Scotland was to hold a referendum, it couldn’t hold a referendum with constitutional weight as described above without a Section 30 order. It definitely doesn’t have that power, since it is clearly “related to” a reserved matter as the Lords argue. To have a chance of passing legal muster it would have to hold a ‘political instruction’ type referendum (a type of poll that arguably doesn’t meet the definition of referendum set out by the Lords above).
But if you look up in that quote, you’ll see the Lords give this argument short shift – saying that it is ‘seriously flawed’ and would not be legal.
Stephen Tierney has argued this kind of referendum would be legal.
>In the Herald on 11 January 2012, for example, Professor Stephen Tierney argued as follows: “If a question is carefully crafted, asking people whether or not their preference is for independence and making clear this would only be treated by the Scottish Government as a political mandate to enter negotiations, this would seem to fall within competence”.
https://ukconstitutionallaw.org/2012/01/12/adam-tomkins-the-scottish-parliament-and-the-independence-referendum/
However this is not the view everyone holds.
>It was always doubted that, under the framework of the Scotland Act, the Scottish Parliament had the legislative competence to pass a Referendum Act. Aspects of the constitution, including the “Union of the Kingdoms”, are reserved matters. The weight of opinion, though by no means unanimous, was that a referendum, regardless of its wording or structure, necessarily “related to” that reserved matter within the meaning of s29(2)(b).
https://ukconstitutionallaw.org/2016/07/07/graeme-cowie-scotland-and-a-second-independence-referendum/
As I quoted above, Graeme Cowie (University of Glasgow graduate and Senior Clerk for the Constitutional Law Researcher with the House of Commons Library) argues that both models of referendum (constitutionally meaningful and political direction) are out with the powers of the Scottish Parliament and government. As the above quote also shows, this is the majority view. And even among those who do think there is a legal path to a unilateral referendum, it is only support for a political instruction referendum..
As the quote says, this is the majority view.
And of course this is what Parliament thought when they were passing the Scotland Act in the first place.
>Lord Sewel: My Lords, I had hoped that we had succeeded in Committee in clarifying that, under the Bill as drafted, the Scottish parliament will not be able to legislate to hold a referendum on independence because the union of the Kingdoms is a reserved matter. It is not only the constitution that is reserved, as the noble Baroness, Lady Carnegy of Lour, observed; it is absolutely explicit in paragraph 1(b) of Schedule 5 that, “the Union of the Kingdoms of Scotland and England”,” is reserved, as the noble Lord, Lord Renton reminded us.
https://api.parliament.uk/historic-hansard/lords/1998/nov/03/scotland-bill
The Court of Session also gave a rather big hint in some recent dicta.
>[66] The question would have been whether an Act to hold a referendum on Scottish Independence “relates to” (s 29(2)(b)) “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom” (sch 5 part I para 1(b) and (c)) having regard to its effect in all the circumstances (s 29(3)). The Act would relate to these reserved matters if it had “more than a loose or consequential connection with them” (UK Withdrawal from the EU (Legal Continuity (Scotland) Bill 2019 SC (UKSC) at para [27], quoting Martin v Most 2010 SC (UKSC) 40, Lord Walker at para [49]). Viewed in this way, it may not be too difficult to arrive at a conclusion, but that is a matter, perhaps, for another day
https://www.scotcourts.gov.uk/docs/default-source/default-document-library/2021csih25.pdf
>The Act would relate to these reserved matters if it had “more than a loose or consequential connection with them” (UK Withdrawal from the EU (Legal Continuity (Scotland) Bill 2019 SC (UKSC) at para [27], quoting Martin v Most 2010 SC (UKSC) 40, Lord Walker at para [49]).
The legal test is if it “relates to” a reserved matter. Why does making something non-binding mean it doesn’t relate to something? A ref on secession clearly relates to the union, even if it cannot, on its own, give legal effect to such a break. Therefore a referendum on the union would be a reserved matter regardless if it’s advisory or not
And also the recent UN CRC ruling has only made it less likely a referendum can occur without Westminster’s approval
>This judgment was of particular interest to Scottish unionists as it may affect the Scottish Parliament’s ability to legislate for a future independence referendum.
>The SNP government has a strong preference for an agreement with the UK government on a second referendum, as happened in 2014, but it has never conceded that it could not call a referendum without Westminster’s authorisation. If there is no agreement with Westminster on this, the SNP has stated that it will introduce its own referendum bill.
>Former Scottish Conservative MSPs Adam Tomkins and Ruth Davidson were quick to point out that the Supreme Court’s approach in this judgement would stop any such bill. Tomkins claims that such a bill would “impede Parliament’s ability to make effective law for the UK. The Supreme Court is not going to let that happen.”
>This may be true but there is also a finer point on how the judgment affects the possibility of a referendum. The Union is a reserved matter under the Scotland Act, but the effect of this has never been conclusively settled, and some academics and politicians have long argued that a consultative referendum may be legal. Key to this is the precedent from the case of Robinson v Secretary of State for Northern Ireland that devolution statutes, as constitutional measures, should be interpreted “generously and purposively” in light of the aims of the provisions, instead of a literal interpretation of the words on the page.
>This suggests that if a referendum bill was brought by the SNP in Scotland, the Supreme Court could potentially interpret the Scotland Act in a “generous” way to allow it. The provision in the Scotland Act that reserves matters that ‘relate’ to the Union could be interpreted in a narrow fashion, allowing the Scottish Parliament to pass a referendum bill that merely asks the opinion of the Scottish people without itself affecting the status of the Union.
>However, the recent Supreme Court judgment deals a final blow to this possibility. The judgment (following in the footsteps of the Continuity Bill ruling) states that the “Scotland Act must be interpreted in the same way as any other statute”, and the Robinson precedent on interpretation seems to have been thoroughly rejected.
>It is therefore very difficult to see any possible pathway for SNP legislation on a second referendum to survive a Supreme Court challenge.
https://www.bennettinstitute.cam.ac.uk/blog/scottish-independence/
Also Scots law is just common law which statute law from Westminster can override and the GFA applies to NI only and the Smith commission isn’t law nor legally binding
TLDR: The only mechanism for a referendum to occur is Westminster granting a section 30
I hope Scotland decides to leave the UK to be honest. They’d be most welcome.
Better sooner than later, in my opinion.
I thought she promised no independence talk until the pandemic was over.
All I can say as I read this thread is that I am proud of my country for giving the people of New Caledonia three referendums. The people of Scotland deserve another referendum because of the Brexit. And I’m not saying that because I want them to leave the UK. If they choose to do so or stay, that’s their choice.