ALL eyes will be on what the First Minister will say on the issue of a second independence referendum when she gives a long-anticipated 30-minute statement today.
There are broadly four possible ways forward she could take, which I set out below with a likelihood score from zero to five, with zero impossible to five certain.
Section 30 with definite indyref2 timetable
The First Minister announces she will call for a Section 30 order – allowing the Scottish Parliament to legislate for and hold a legally-binding second independence referendum – and also announce a timetable for a new vote.
READ MORE: Nicola Sturgeon set to reveal 'detailed' indyref2 update today
This is the move many in her party want. Quite a number of activists, as well as the MP Angus MacNeil, want indyref2 before the end of the latest extension to the Brexit process, which ends on October 31.
They believe an early vote can be won this year and a Yes result would allow an independent Scotland a smooth transition to EU membership and limit the damage caused by Brexit. The problem for the FM is that there is no clarity on the divorce stage of the Brexit process, which she has previously made clear she wants. For instance there could yet be a People’s Vote, the UK could end up staying in the EU, there could be a further extension to the Article 50 process.
Likelihood: 2
Section 30 and referendum at end of this stage of the Brexit process and before May 2021
In this scenario the First Minister sets out her plan to obtain a Section 30 order from Theresa May as well as making clear it will be her intention to hold a new referendum at the end of the divorce stage of the Brexit process (should Brexit go ahead) and before May 2021. She could perhaps make a new vote conditional on Brexit happening – for instance if Labour agree to back May’s withdrawal agreement in the Commons next month.
Likelihood: 4
Section 30 and Plan B (Holyrood passing its own Referendum Bill)
The First Minister says she will request a Section 30 order but, bear in mind, the PM refused to grant one back in 2017 and has probably not changed her mind. She sets out her thinking on what she would do if the request is once again turned down.
There has been some discussion in recent weeks that the Scottish Government may have taken legal advice over whether it could introduce legislation to hold a referendum without a Section 30 order. She would insist it would be a legally binding referendum. The FM could argue that the move is to protect Scotland from the damaging effects of Brexit and is in response to the Westminster “power grab” which will see Holyrood’s influence weakened after the UK leaves the EU.
This is a route forward which would be popular with independence supporters and SNP members who will want to hear what the FM will do if May again says “now is not the time”. Indeed it has emerged in recent weeks Scottish Government lawyers have been busy developing up-to-date advice on the legitimacy of a new vote on the constitution.
The 2014 referendum was held with the legal consent of the UK Government under the terms of the Edinburgh Agreement, signed by Alex Salmond and David Cameron. Though constitutional affairs are reserved to Westminster, the powers were devolved to Holyrood on a one-off basis under Section 30 of the Scotland Act.
But the Scotland Act, which brought about the creation of the Scottish Parliament and set out the areas which are reserved to Westminster, does not say powers over referendum are reserved.
In legal terms it is potentially a grey area. However, the FM has described the Edinburgh Agreement as the “gold standard” for staging referendums in the UK and Sturgeon has said she would want to secure this again.
Likelihood: 3
No Section 30, no Referendum Bill and wait for Brexit clarity
A final possibility, is of course, that the FM will stick to her original plan and argue more clarity is needed on Brexit before a new attempt to seek a Section 30 order. She would point to the ongoing turmoil at Westminster and tell MSPs Scotland needs to wait for more certainty on where the UK is going. She could step up calls for more campaigning on why Scotland should be independent and underline its wish to remain in the EU as well as highlight the damage Brexit will have on the nation. However, with no real progress towards a second independence vote SNP members would be extremely disappointed. Given the statement comes a few days before the SNP’s conference this approach is unlikely.
Likelihood: 1
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