The day began with one question settled unequivocally – no, the Scottish parliament cannot legislate to hold a second independence referendum without the UK government’s approval. But it ends with a new tranche of imponderables around the constitutional question, none of them likely to be resolved in the near future. At her hastily convened press conference, not two hours after the supreme court gave its judgment on the legality of her proposed referendum bill, Sturgeon told reporters that further detail on her plan to put the independence question to the electorate at the next general election was slight because of the need for time to reflect and discuss as a party. But the inescapable conclusion is that this “de facto referendum” – a gamble she herself admits she doesn’t want to take – presents a morass of procedural and political complications that seem unlikely to get her any closer to her ultimate aim: Scottish independence. Sturgeon instead emphasised the “unsustainable” democratic deficit identified by the judgment – the mandate and parliamentary majority for a referendum is “quite simply undeniable” she said, and it is likewise true that opinion polling shows support for independence hovering around the 50% mark, although appetite for immediate change is more variable.
But still those practical questions piled up – what question would the SNP put to voters? She could imagine “a manifesto accompanied by a white paper”, she said, echoing the format of the previous 2014 yes campaign and recognised the need for “crystal clarity about what people are voting for”. How would campaigning work – would SNP candidates only answer questions about independence? What result would be a win? She has previously suggested more than 50% of votes for pro-independence parties (which include the SNP, Scottish Greens and Alba), though would not be drawn on this. How does she expect other parties to participate in this single-issue scenario? Would some voters boycott an election based around independence? At a fundamental level, Sturgeon has always said she seeks a “gold standard” of legitimacy and legality for a second independence vote, previously deriding routes like the one she now seems intent on following. On Wednesday morning, a bullish Sturgeon insisted she would not “go cap in hand” to the UK government with yet another request for them to grant a section 30 order, which was used in advance of the 2014 referendum to transfer the necessary powers to Holyrood.
But even if her de facto referendum plan is successful in terms of votes, which she will argue gives her a mandate to negotiate separation with Westminster, does this really place her in any different position to where she is now? After all, she has won a slew of mandates in previous Holyrood and UK elections fought on a platform foregrounding a second referendum, which the UK government has consistently refused to recognise. And this hard “no” will probably remain the case regardless of who is in No 10, with Labour keen to avoid any suggestion of dialogue with the SNP on this issue. And what does the judgment mean for those independence supporters gathering outside Holyrood and across the UK later on Wednesday? Rally organisers emphasised the importance of visibility regardless of how deflated people might feel and Sturgeon anticipated seeing “the real spirit of the independence movement” at such gatherings and in months to come. But how sustainable is this momentum, yet again without any date to aim for? Veteran activists suggest the decision could act as a mobilisation tool, encouraging supporters to translate the recent Scottish government papers on independence into a fresh case on the doorstep. Sturgeon has consistently banked on Westminster’s “democracy denial” boosting support for independence. The supreme court judges wisely recognised there was no point in postponing a decision on the vexed constitutional question that would only come back to them at later date wearing different clothes, and in doing so they pushed it back from the legal to the political sphere, where it rightly belongs. But there are also more immediate matters concerning voters. As winter bites and temperatures plummet across Scotland, many will be more focused on their heating bills. On Thursday almost every school across Scotland will close its doors because of a teachers’ pay dispute, as the health secretary scrambles for a solution to nurses’ planned industrial action. The Scottish government is wrestling with the devastating impact of inflation, Brexit and the Truss administration’s disastrous mini-budget on devolved finances. It is in this UK context that Sturgeon must convince voters her government has the capability and competence to go it alone, as well as the challenge in persuading moderate undecided voters at a time when continuing crises and uncertainties may leave many minded to cling to the status quo. As the first minister told reporters towards the end of her press conference: “Democracy is always a risk.”