This week Lord Reed, the Scottish judge who serve as President of the Supreme Court, warned that it would take “some months” for it to hand down its judgement on Nicola Sturgeon’s referendum case.
Because constitutional issues are reserved to Westminster, the Scottish Government can’t conduct a binding and legal plebiscite on independence without London’s consent – which the Conservatives are currently in no mood to give.
The SNP are seeking a judgement on whether a referendum bill they have tried to lay before the Scottish Parliament is legal; the Presiding Officer has refused to sign off on it in case it exceeds the institution’s powers.
In court, the Nationalists are insisting that Holyrood should be able to authorise such a poll because it would be ‘advisory’ – but you can bet they’d strike a different note if the judges give them permission to stage one. Few legal commentators seem to think that likely, however.
That’s why Sturgeon has started talking up a backup plan: using the next general election as a proxy vote on independence. If the combined vote for separatist parties is more than 50 per cent, she would apparently treat that as a mandate to try and break up the UK.
For someone historically so cautious, it’s a remarkable move. Not only would such an outcome be a very sketchy basis on which to try and secure international support and legitimacy for a breakaway effort, but the separatists have never actually secured 50 per cent of the vote at a Westminster election, even in the middle of the last decade when the Nationalists were in the height of their pomp.
Thus for the SNP – and the broader ‘Yes Movement’, to the extent they are different things – the election gambit seems to risk all the downsides of losing a second referendum, with little prospect of the benefits of winning one.
Perhaps that simply matters less to the First Minister than once it did. Whilst she assured last weekend’s SNP conference that she’s in it for the long haul, speculation is mounting that after being in post since 2014 Sturgeon is now looking for a suitable note on which to bow out. A second setback for the cause, even if largely self-inflicted, would provide that.
Certainly she seems to have little enthusiasm left for the task. Sturgeon struck a new note in her conference speech, reminding her audience that separation wouldn’t be a “panacea” for Scotland’s economic woes.
She also promised a new economic case for independence, which does highlight that in the eight years since the referendum the Nationalists still don’t have one. Yes activists probably shouldn’t get their hopes up, given that SNP ministers have started talking up the nonsensical idea that an independent Scotland wouldn’t inherit any pension obligations towards its citizens.
But that’s still more interest than the Nationalists show in the hum-drum business of discharging devolved government in Scotland – the press described the conference as “flat and policy-light”. Not great, given the sheer scale of the (again, often self-inflicted) policy fiascos that have piled up on the SNP’s watch.
For now, the Nationalists continue to enjoy the sort of political immunity the Conservatives had in the recent past, when the imperative of delivering Brexit sustained a coalition of about 40 per cent of the vote no matter how they conducted themselves in office. That this effect has endured so long in Scotland is a tribute to Sturgeon’s political skill; year after year, she has persuaded her increasingly restive activists that the next (and last) great push is just around the corner.
The legal challenge, the election gambit, the newly downbeat tone – all of this suggests that this strategy is finally running out of road. When it does, we might finally see the SNP brought back down to Earth – especially if they simultaneously lose the services of the First Minster.
I already covered the situation with the Protocol in another piece earlier this week – if you missed it, the ERG has fired a shot across the Government’s bows following suggestions that ministers might cave on ECJ oversight in Northern Ireland.