Boris Johnson prepared to take SNP to Supreme Court to stop second independence referendum

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Ben Riley-Smith
·10 min read
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Scotland's First Minister Nicola Sturgeon, right, sits with Britain's Prime Minister Boris Johnson, - Duncan McGlynn/Pool Getty
Scotland's First Minister Nicola Sturgeon, right, sits with Britain's Prime Minister Boris Johnson, - Duncan McGlynn/Pool Getty

Boris Johnson is prepared to take the SNP to the Supreme Court to stop the party unilaterally holding a second Scottish independence referendum should it win next week’s Holyrood elections.

The Government has legal advice dating back to 2011 that argues the Scottish Parliament cannot hold a binding independence referendum without the UK Parliament's approval.

Government advisers are gearing up to deploy a “not now” argument to any request for a referendum, pointing to the Covid-19 pandemic that the country is still facing.

But they believe that position can hold for years, given the point of total recovery – on everything from the economy to court backlogs and education – is impossible to predict.

Mr Johnson’s Government is getting ready not just to reject a request for permission to hold “indyref2” but also to enter a court battle should the SNP then attempt to hold a unilateral vote.

A UK government source said: “If it comes to that, if those are the cards they play, I don’t think the UK Government can sit back and do nothing.”

The planning comes with UK government ministers and advisers awaiting the results of Thursday’s Scottish Parliament elections with trepidation.

Nicola Sturgeon, the Scottish First Minister and SNP leader, is universally expected to continue as the country’s leader, with the SNP as the party with the most seats.

It remains on a knife-edge as to whether the SNP wins an overall majority of seats – a result that would match the party’s 2011 majority which led to the 2014 independence referendum.

However, pundits and politicians widely expect that even if that mark is missed there will be a majority of seats for pro-independence parties, including the Scottish Greens and possibly Alba, Alex Salmond’s newly-formed party.

That means the question of a second independence referendum will loom large over national politics in the coming weeks and months, with much of the focus being on what Mr Johnson and his inner team will do next.

To better understand what approach they plan to take, The Telegraph has talked to scores of UK Government figures including cabinet ministers, officials working on Scottish policy, Number 10 sources and those who have discussed the issue with the Prime Minister.

The strategy – such as it is – can be boiled down to one phrase: just say no.

Mr Johnson, when he meets his advisers and ministers, is invariably described as one of the staunchest opponents to holding a referendum in the room.

Multiple current and former advisers say he is all too aware that if he held a referendum and was defeated that his political gravestone would read “the Prime Minister who lost Scotland”.

The way the Brexit vote has become the defining (and to him, unwanted) part of David Cameron’s legacy has not been lost on the man who did more than most to bring it about.

“He is very punchy in private,” said one source – who has discussed plans to save the Union with Mr Johnson recently – when describing his approach to stopping a second referendum.

Others describe how discussions about Union policy are always predicated on the fact that Mr Johnson is determined not to grant a second referendum.

However, there is an awareness that having an English, Conservative, Old Etonian Prime Minister saying “no” to the Scottish Parliament carries political risk, not least with the SNP so quick to adopt that framing. And so a more nuanced public stance will be adopted.

One central plank of attempts to stop a second referendum will be pandemic recovery.

It has not been lost on government figures that while support for independence in Scotland hovers around 50-50 in the polls, enthusiasm for holding a vote soon is much lower.

Mr Johnson has been arguing that it would be “reckless” to hold a referendum on constitutional matters now, when the country is battling a once-in-a-century killer pandemic.

The argument appears to chime with where a majority of Scottish voters are currently, with seeing family indoors again and keeping elderly relatives safe a higher priority than ending the UK.

It was telling that in her Radio Four Today programme interview on Friday, Ms Sturgeon was at pains to make clear she would not immediately seek an independence vote if re-elected, stressing that tackling the pandemic must come first.

But how long can the “not now, we’re recovering from the pandemic” line hold for Downing Street? The answer, when you talk to those close to Scottish policy, is pretty long.

Multiple well-placed sources said that it will take “years” to fully recover from the Covid pandemic – and therefore “years” before another referendum can even be considered.

“We're not through the pandemic when furlough ends and the pubs are open,” said one government source.

“Look at some of the backlogs on cancer operations and jobs numbers and the impact on young people. There is a whole lot of stuff that is pandemic-related that doesn't go away quickly.”

Economic forecasts put out by the Treasury earlier this year suggest that on metrics like public borrowing and debt the pre-pandemic levels may only be returned to at the end of the parliament in 2024.

With annual booster Covid jabs and social distancing habits likely to become a feature of the years to come, the political challenge for Ms Sturgeon will be judging when to switch from pandemic fire-fighting to all-out constitutional wrangling.

Which leads to a second key plank in the battle to stop a second referendum: the courts.

Whitehall insiders are planning how the months after Thursday on the referendum front will look. Their roadmap roughly looks like this:

Step One: Ms Sturgeon asks for permission to hold a referendum. That can be done if she wins either an SNP majority or a pro-independence majority – the SNP has been careful to suggest the latter would still amount to a democratic mandate for a referendum.

The so-called Section 30 order would likely come after Ms Sturgeon holds a vote in Holyrood for the move, allowing her to say she is carrying out the will of the Scottish Parliament (and thus the Scottish people). The request would likely be made by letter.

Step Two: Mr Johnson says no. There is no doubt in government circles that the Prime Minister will reject the request. That is a foregone conclusion.

The argument will likely be that the 2014 referendum – in which Scots voted to stay in the UK by 55 per cent to 45 per cent – settled the issue for a generation. Plus holding a referendum during pandemic recovery would be wrong.

Step Three: Ms Sturgeon decides to table a referendum bill in Holyrood without the permission of the UK Parliament, with a view to pushing ahead and holding a vote irregardless, which is where the courts come into play.

Nicola Sturgeon, visits The Edinburgh Book Shop as she campaigns for the Scottish parliamentary election - Jane Barlow/Reuters
Nicola Sturgeon, visits The Edinburgh Book Shop as she campaigns for the Scottish parliamentary election - Jane Barlow/Reuters

The UK Government believes that such a move would ultimately be quashed by the courts. More specifically, officials believe they have the legal advice to back that position up.

When the SNP secured a shock majority of seats in the 2011 Holyrood elections, Mr Cameron’s Government quietly commissioned legal advice, it can be revealed.

Three sources confirmed to The Telegraph the existence of the government legal advice. It is understood to argue that it would be unlawful for the Scottish Parliament to hold a binding independence referendum that led to Scotland’s departure from the UK without UK Parliament approval.

The reason put forward is that the Scotland Act of 1998, which created the devolved Scottish Parliament, made clear that constitutional matters remained with the UK Parliament.

It is on such a legal basis that the Prime Minister is willing to square off with Ms Sturgeon in the Supreme Court through lawyers, according to officials working on the UK's Scottish policy.

SNP figures have also made clear they are willing to pursue their claims to the courts, explaining why many in Whitehall are predicting such a clash later this year.

Government sources are confident of victory if that point alone was tested – whether Scotland can unilaterally be taken out of the UK without any say from Westminster.

But they fear the SNP could push a more nuanced position: that the referendum would simply be advisory – in other words, a giant opinion poll – with no guaranteed actions after the result. Would that be legal? That appears less clear cut.

The timing, too, remains very much unclear. Much depends on which way the result tips on Thursday.

If Sturgeon wins an overall SNP majority – matching the precedent set in 2011 – and Mr Salmond wins a seat in Holyrood, perhaps with a handful of other Alba Party candidates, the political wind could be in their sails.

Ms Sturgeon, already under pressure to move faster in independence from some factions in her party, would also be facing calls from a back-from-the-political-ashes Mr Salmond to enter talks about independence from week one.

On the other hand, if Ms Sturgeon falls short of an SNP majority and Alba fails to pick up any seats – an outcome very much possible, according to the polls – figures in Westminster will spin it as a political blow.

They will note Ms Sturgeon has fallen shy of the 2011 majority that preceded the 2014 referendum – which Mr Cameron granted, believing he could win and thereby kill off support for Scottish independence. In this scenario, an indyref2 push could be slower in the coming.

Pushed to pin down a date, one well-placed Government source predicted Ms Sturgeon could attempt to bring forward her second independence referendum bill after the summer recess, with the country fully reopened again after the lockdown.

There is a third plank to the drive to defeat Scottish independence – reform.

Government ministers and advisers believe that a wider strategy is needed for pushing back the tide of Scottish independence support and to stitch the Union back together.

The Treasury is pumping tens of millions of pounds directly into local authorities in devolved nations – a change in policy covered legally by the United Kingdom Internal Market Act 2020.

But some Cabinet ministers favour changes in tone. “People who flirt with separatism, it's not because the economy will be stronger, it is because of identity,” said one.

“We need to approach the Union argument with more subtlety and more respect, for it to be less about politics and more that people think, on balance, it is a good thing.”

But Michael Gove, the Chancellor of the Duchy of Lancaster who is leading on Union policy, is understood to have little appetite right now for a major new wave of devolution.

Does Unionism still have the potency it did generations ago? Polling for The Telegraph by Redfield & Wilton Strategies, which surveyed 1,500 people in the UK this month, offers a bleak picture.

Asked what they would think if the Union were to break up, just 45 per cent of respondents said it would be a “bad thing”.

That exceeded other options: 17 per cent said “good thing”, 17 per cent said “neither” and 21 per cent said “don’t know”. But it still means less than half were fussed enough to put their thumbs down.

For all of the grand ambitions in Whitehall, it is not hard to find some people despairing.

Asked what the plan was to stop Scottish independence, one source who has discussed the issue at length with Mr Johnson said bluntly: “There is no strategy, there is no plan.”

Another government insider, in a moment of reflection, was even more downbeat. “Sometimes,” the source said, “I look at where we are and just think ‘it’s inevitable’.”