Independence Referendum Statement

Before commenting on and discussing the latest plans to take the constitutional question forward, here is the text from the First Minister’s statement to the Scottish Parliament today (28/6/2022).

Independence Referendum

“The campaign to establish the Scottish Parliament was long and hard. It was rooted in the belief that self-government would improve the lives of those who live here—and so it has proved. There were—and still are—honourable differences about the ultimate destination of Scotland’s self-government journey, but all who campaigned to establish this place were united in and by this fundamental principle: the democratic rights of the people of Scotland are paramount.

That principle of self-determination was encapsulated by these words in the Scottish Constitutional Convention’s claim of right:

“the sovereign right of the Scottish people to determine the form of government best suited to their needs.”

The late Canon Kenyon Wright, who led the convention, addressed Westminster’s refusal to accept the democratic demand for a Scottish Parliament with this question:

“What if that other voice we all know so well responds by saying, ‘We say no, and we are the State’?”

His answer—

“Well, we say yes, and we are the people”—

was simple but powerful. It is as relevant now as it was then.

Last May, the people of Scotland said yes to an independence referendum by electing a clear majority of MSPs committed to that outcome. The democratic decision was clear. Two weeks ago, the Scottish Government started the process of implementing that decision with the first in the “Building a New Scotland” series of papers. That paper presented compelling evidence of the stronger economic and social performance, relative to the United Kingdom, of a range of independent countries across Europe that are comparable to Scotland.

That should be both a lesson and an inspiration to us. Scotland, over generations, has paid a price for not being independent: Westminster Governments that we do not vote for, imposing policies we do not support, too often holding us back from fulfilling our potential. That reality has rarely been starker than it is now.

The Conservatives have just six MPs in Scotland—barely 10 per cent of Scottish representation—and yet they have ripped us out of the European Union against our will, created the worst cost of living crisis in the G7 and saddled us with the second-lowest growth in the G20. They are intent on stoking industrial strife, demonising workers and provoking a trade war. Businesses and public services are struggling for staff because freedom of movement has been ended. Our young people have been robbed of opportunity.

The Scottish Government will do everything in our power to mitigate the damage, but that is not enough. Our country deserves better, yet this Parliament, which is looked to for leadership by so many across Scotland, does not have the power to tackle the root causes of the financial misery being inflicted on millions. We lack the full range of levers to shape our economy and grow our country’s wealth. We are powerless to stop our budget being cut. We cannot block the Tories’ new anti-trade-union laws, or prevent them from tearing up human rights protections. We are not able to restore freedom of movement. While we invest billions of pounds in measures to help with the cost of living, tens of thousands of children can be pushed deeper into poverty at the merest stroke of the Chancellor of the Exchequer’s pen.

It does not have to be this way. Independence is about equipping ourselves to navigate the future, guided by our own values, aspirations and interests. It is about helping us to fulfil our potential here at home and play our part in building a better world. That takes more than a changing of the guard at Westminster.

I fervently hope that the Tories lose the next election—they thoroughly deserve to. However, on the big policy issues of our time, from Europe to migration, to human rights and fairness for workers, Labour is more of a pale imitation than a genuine alternative. Labour will not take Scotland back into the European Union or even the single market, and neither will the Liberal Democrats. They will not restore freedom of movement for our young people. They will not prioritise tackling child poverty over investment in nuclear weapons. [Interruption.]

Independence will not always be easy—it is not easy for any country—but it will give us the opportunity to chart our own course; to build a wealthier, greener, fairer nation; to be outward looking and internationalist; and to lift our eyes and learn from the best.

Now is the time—at this critical moment in history—to debate and decide the future of our country. Now is the time to get Scotland on the right path—the path chosen by those who live here. Now is the time for independence.

This Parliament has a clear, democratic mandate to offer Scotland that choice. Regrettably, however, the UK Government is refusing to respect Scottish democracy. That is why today’s statement is necessary. The UK and Scottish Governments should be sitting down together, responsibly agreeing a process, including a section 30 order, that allows the Scottish people to decide. That would be the democratic way to proceed. It would be based on precedent and it would put the legal basis of a referendum beyond any doubt. That is why I am writing to the Prime Minister today to inform him of the content of this statement. In that letter, I will also make it clear that I am ready and willing to negotiate the terms of a section 30 order with him.

What I am not willing to do—what I will never do—is allow Scottish democracy to be a prisoner of Boris Johnson or any Prime Minister. [Applause.]

The issue of independence cannot be suppressed. It must be resolved democratically and that must be through a process that is above reproach and commands confidence. That is why I am setting out today the actions that the Scottish Government and the Lord Advocate will take, in the absence of a section 30 order, to secure Scotland’s right to choose. My determination is to secure a process that allows the people of Scotland—whether yes, no or yet to be decided—to express their views in a legal, constitutional referendum, so that the majority view can be established fairly and democratically.

The steps that I am setting out seek to achieve that. They are grounded in and demonstrate this Government’s respect for the principles of rule of law and democracy. Indeed, those core principles—respect for the rule of law and respect for democracy—underpin everything I say today. Respect for the rule of law means that a referendum must be lawful. That, for me, is a matter of principle, but it is also a matter of practical reality. An unlawful referendum would not be deliverable. Even if it was, it would lack effect. The outcome would not be recognised by the international community. Bluntly, it would not lead to Scotland becoming independent.

It is axiomatic that a referendum must be lawful, but my deliberations in recent times have led me to this further conclusion: the lawfulness or otherwise of the referendum must be established as a matter of fact and not just opinion. Otherwise, as we have seen again in recent days, Opposition parties will just keep casting doubt on the legitimacy of the process so that they can avoid the substantive debate on independence that Scotland deserves but that they so clearly fear. That is not in the country’s best interests.

Let me turn to the detail of the steps that we will now take to secure the objective of an indisputably lawful referendum and then ensure that, from today, we can focus on the substance of why Scotland should be independent.

I can announce that the Scottish Government is today publishing the Scottish independence referendum bill. I will draw attention in particular to three key provisions of the bill. First, the purpose of the referendum, as set out in section 1, is to ascertain

“the views of the people of Scotland on whether Scotland should be an independent country.”

In common with the 2014 referendum—indeed, in common with the Brexit referendum and the referendum to establish this Parliament—the independence referendum that is proposed in the bill will be consultative, not self-executing.

Just as in 2014, and as recognised explicitly in the 2013 white paper, a majority yes vote in the referendum will not in and of itself make Scotland independent. For Scotland to become independent following a yes vote, the legislation would have to be passed by the United Kingdom and Scottish Parliaments.

There has been much commentary in recent days to the effect that a consultative referendum would not have the same status as the vote in 2014. That is simply wrong, factually and legally. Let me be clear: the status of the referendum that is proposed in the bill is exactly the same as that of the referendums of 1997, 2014 and 2016.

The next provision in the bill to which I want to draw attention relates to the question to be asked in the referendum. The bill states that, just as it was in 2014, the question on the ballot paper should be:

“Should Scotland be an independent country?”

Thirdly, the bill includes the proposed date on which the referendum should be held. In line with the Government’s clear mandate, the date is in the first half of this session of Parliament. I can announce that the Scottish Government is proposing that the independence referendum be held on 19 October 2023—[Applause.]

Those are the key elements of the referendum legislation that the Scottish Government wishes this Parliament to scrutinise and pass.

I turn to the aim of establishing as fact the lawfulness of a referendum, which, as I have already indicated—[Interruption.] —I consider to be of the utmost importance.

I will start with what we know already. We know that the legislative competence of the Scottish Parliament to pass the bill in the absence of a section 30 order is contested. We know that legislative competence can be determined only judicially. We know that, for as long as there is no judicial determination, opinions will differ and doubt will continue to be cast on the lawful basis for the referendum. That benefits only those parties that are opposed to independence, because it allows them to avoid the substance of the independence debate. Finally, we know that if this Parliament seeks to legislate without a section 30 order, the bill will go to court—that is inevitable. The only questions are when it will end up in court and at whose hand.

If the issue of legislative competence remains unresolved at the point of formal introduction of the bill, the UK Government will almost certainly use section 33 of the Scotland Act 1998 to refer the matter to the Supreme Court after the legislation has passed. It is also possible that one or more private individuals will lodge a judicial review of the bill. Indeed, last week, it was reported that Tory supporters are already planning to do so. A challenge by private individuals could also go through successive courts and therefore be a very lengthy process. Either way, at the point of Parliament passing the bill, there would be no certainty about when or even if the legislation could be implemented. A court challenge would still lie ahead and the timetable that I have set out today would quickly become difficult to deliver.

Of course, between now and then, claim and counterclaim, good faith arguments and bad faith fearmongering about so-called wildcat referendums will continue to muddy the water, cast doubt and taint the process. That may well suit politicians who are opposed to independence, but none of that would be in the interests of the country and none of it would serve democracy.

The fact is that neither legal opinions nor political arguments will resolve that point. We must establish legal fact. That is why, in my view, we must seek now to accelerate to the point when we have legal clarity and legal fact. Crucially, in doing so, we would, I hope, establish and safeguard the ability of this Parliament to deliver a referendum on the proposed date.

It is to that end that, some weeks ago, I asked the Lord Advocate to consider exercising her power under paragraph 34 of schedule 6 to the Scotland Act 1998 to refer to the Supreme Court the question whether the provisions in the bill relate to reserved matters. That power is exercisable by the Lord Advocate alone, not by the Scottish ministers collectively. Accordingly, whether she exercises it is a matter solely for her.

However, I confirm that the Lord Advocate has considered the request. She has taken into account the following factors: the Government’s democratic mandate; the constitutional significance of the issue; the fact that the bill raises a genuine issue of law that is unresolved; and the importance of ensuring that this Government and Parliament act lawfully at all times.

She has now informed me of her decision. I advise the Parliament that the Lord Advocate has agreed to refer the provision in the bill to the Supreme Court. Indeed, as I speak, the process is under way for serving the requisite paperwork on the UK Government by lawyers and messengers-at-arms, and I confirm that the reference will be filed with the Supreme Court this afternoon.

Whether the reference is accepted, how long it takes to determine and what judgment is arrived at are all matters for the court to determine. I accept that. As I have made clear throughout, this Government respects the rule of law. However, by asking the Lord Advocate to refer the matter to the court now, rather than wait for others to do so later, we seek to deliver clarity and legal certainty in a timely manner and without the delay and continued doubt that others would prefer.

Obviously, it is this Government’s hope that the question in the bill—proposing a referendum that is consultative, not self-executing, and that seeks to ascertain the views of the Scottish people for or against independence—will be deemed to be within the legislative competence of this Parliament. If that outcome is secured, there will be no doubt whatsoever that the referendum is lawful, and I confirm that the Government will then immediately introduce the bill and ask the Parliament to pass it on a timescale that allows the referendum to proceed on 19 October next year.

It is possible that the Supreme Court will decide that the Scottish Parliament does not have the power to legislate even for a consultative referendum. To be clear: if that happens, it will be the fault of the Westminster legislation, not of the court. [Interruption.]

Obviously, that would not be the clarity that we hope for. However, if that is what the law that established this Parliament really means, it is better to have that clarity sooner rather than later—because it will clarify that any notion of the UK as a voluntary union of nations is a fiction and that any suggestion that the UK is a partnership of equals is false. Instead, we will be confronted with the reality that, no matter how Scotland votes, and regardless of what future we desire for our country, Westminster can block and overrule—Westminster will always have the final say. There would be few stronger or more powerful arguments for independence than that, and it would not be the end of the matter—far from it.

Earlier, I said that two principles would guide what I said today: the rule of law, and democracy. Democracy demands that people must have their say. Finally, therefore, in terms of process, I confirm the following—although it describes a scenario that I hope does not arise. If it transpires that there is no lawful way for this Parliament to give the people of Scotland the choice of independence in a referendum, and if the UK Government continues to deny a section 30 order, my party will fight the UK general election on this single question: should Scotland be an independent country? [Interruption.]

The path that I have laid out today is about bringing clarity and certainty to this debate. Above all, it is about ensuring that Scotland will have its say on independence. I want the process that has been set in train today to lead to a lawful constitutional referendum, and for that to take place on 19 October 2023. That is what we are preparing for. However, if the law says that that is not possible, the general election will be a de facto referendum. Either way, the people of Scotland will have their say.

As the Lord Advocate is now referring the question of legality to the Supreme Court, that need no longer be the subject of sterile political debate. Indeed, the sub judice principle and our standing orders demand that the arguments on competence now be made in court, not here in the chamber. That means that we can, and we should, now focus on the substance. That is what this Government intends to do. In the weeks and months ahead, we will make the positive case for independence. We will do so with commitment, confidence and passion. Let the Opposition parties, if they can, make the case for continued Westminster rule, and then let the people decide.

To believe in Scottish independence is to believe in a better future. It involves an unashamedly optimistic view of the world—the belief that things can be better than they are now. Above all, it means trusting the talents and ingenuity of all of us who live here, no matter where we come from. It is not a claim to be better than anyone else. It is about looking around at all the other successful independent countries in the world—so many of which are smaller than we are and without the resources that we are blessed with—and asking, “Why not Scotland?” Think of all our talents and advantages: unrivalled energy resources; extraordinary natural heritage; exceptional strengths in the industries of the future; brilliant universities and colleges; and a highly skilled and creative population. There is no reason at all why an independent Scotland would not succeed.

Nothing in life is guaranteed, but with hard work and the independence to chart our own course, Scotland will prosper. The people of Scotland have told us—all of us in this chamber—that they want the right to decide. Today, we have set out the path to deliver it.” [Applause.]

Feature image credit: Rosie Balyuzi


Comments (16)

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  1. SleepingDog says:

    That the process and transition to an Independent Scotland is as legally uncontested as possible is of enormous importance to the issue of interim treason laws (especially but not limited to criminal disloyalty in public office). Agents and assets of foreign powers working in Scotland against any democratic mandate for Independence should not be under any doubt that they will be actively investigated, tried and convicted without recourse to legal pardons or amnesties or contested legal environments or long-drawn-out battles over jurisdiction. This is one reason I favour a high-bar, passage-smoothed route. There are a number of cards Scottish Independence negotiators might play in securing such negotiated agreements beforehand, not least the period during which Scottish civil servants are held to their oaths of official secrecy.

    On the other hand, how did the Scottish Government negotiate Crown Consent for this bill?
    If the monarch attempted to block it, might Scotland have to convert to a Republic before pressing ahead?

    1. Alistair MacKichan says:

      Now, there’s a question…. I suppose our ability to ditch our monarchy would be quashed by the same forces which challenge us having a referendum. We are getting caught by legalities. What we need is a Scotland so determined for Inde in every department of our lives that Westminster just can’t hold on. Can we now write new text books for our schools, refuse to accept City of London domination of our economic interests, and arrange our professional bodies such that the courts are so blocked by efforts of containment that they fail.

  2. Prte Fletcher says:

    At last let’s settle this once and for all! YES!

    1. 220629 says:

      Unless, of course, the answer’s ‘No’ and that’s not the settlement you desire.

      1. ST says:

        That’s the beauty of democracy. Your allowed to change your mind and given a regular opportunity to do so.
        Unless you advocating a Nazi style 1000 year Westminster Reich ? Is that the Union playbook these days ?

        1. 220630 says:

          So, a ‘Yes’ vote wouldn’t be final? There would be regular opportunities for us to vote on re-entering a political union with the other British nations? Would that, as the beauty if democracy, be offered as part of the prospectus for independence if there was one?

  3. Malc says:

    I truly hope you are successful in divorcing your country from the haven for sleaze and lies that many decades ago was a place that I respected and made me proud to call myself English.

    I no longer consider myself English, I was successful, not rich by any means, but I had enough to remain an EU citizen and move to a country that cared for all its citizens regardless of wealth. This care is not selective but spreads to others that come to the country needing help also.

    I am treated as an intelligent adult by my government, not lied to and treated like my opinion has no relevance. I could not have stayed in England and retained my self respect.

    I truly wish you well Scotland and if you help your neighbours see what an independent, decent, honest, caring country can accomplish, then it will be to their benefit too.

    I loved working in Scotland, I think your country will be a great success without being fused to your neighbour. You can survive in the modern world without lies and sleaze, I’m sure of it.

  4. 220629 says:

    Nothing’s changed. The Scottish Independence Referendum Bill proposes the same referenda as that of the previous referendum on independence; ‘Should Scotland be an independent country?’ The answer depends on what’s meant by ‘independence’.

    Again, we’re being offered nothing substantial to vote on. We don’t know (because it won’t tell us) what the Scottish government’s prospectus for independence is, the course of events it would set in train immediately following a ‘Yes’ vote, the course of events that would define the country’s ‘independence’ going forward.

    If the Scottish governments goes ahead with the same referenda as it did the last time, I’ll only be able in all good conscience to give the same answer as I did the last time: ‘Should Scotland be an independent country? I don’t know. Where’s the beef?’

    1. Paddy Farrington says:

      What a depressingly disempowered view that is. Politics as consumer choice.

      1. 220630 says:

        Indeed, that’s my main beef: we’re being offered nothing but a dumb and passive consumer choice between ‘Yes’ and ‘No’, which is why I say ‘No’ to the whole impoverishing process. Politics – public affairs and the governance thereof – should involve us more than this.

        There’s no prospectus on how a ‘Yes’ vote would involve us in the shaping or informing or substantiating this ‘independence’, which is again why I choose, as a process-impoverished consumer, to withhold my vote in protest.

        How about adding a third option to the upcoming pseudorendum: Should Scotland be an independent country? – ‘Yes’, ‘No’, ‘Don’t know’? I could buy that.

        1. Paddy Farrington says:

          I think the whole idea of independence is that you can involve yourself and your community, 220630, with a very much better chance of being heard and having an impact than under the current system. And that is what can make politics a bit less like consumer choice. That’s certainly what the Yes campaign should be seeking to do, thus helping to prefigure the kind of Scotland we’d like to see. It’s not a time for sitting on the sidelines…

          1. 220630 says:

            Indeed, and I would welcome in advance of the referendum the Scottish government’s prospectus on how, if we vote ‘Yes’, your idea of independence will be realised and, in particular, how I and the communities to which I belong will be more greatly empowered to participate in public decision-making than we are at present. At the moment, the only prospectus we have is that of our having our own wee Westminster in Edinburgh – and that’s not good enough to win my vote.

        2. Dave. says:

          Not voting is not the answer. What is missing from the ‘new’ S.N.P. are the reasons of why Scotland is one of the richest countries in the world. All we get is a barrage of
          criticism every day about how corrupt Boris and friends are. We all know that. Why is the F.M. keeping quiet on the positives of Independence ? Oh and yes I know the reason why Scotland is so rich. I sent it to the ‘new’ S.N.P. years ago. Is that in the white paper ? NO.
          ALBA is the answer.

      2. Jane Jones says:

        Agree Paddy!

        1. 220702 says:

          Although what Paddy mistakes as ‘consumer choice’ is actually collective bargaining. It’s the electorate holding the Scottish government’s feet to the fire for greater democracy when its bargaining power is in the ascendancy. We (the community of interest to which I belong) will vote in favour of making Scottish government independent of the UK if (and only if) the current Scottish government gives us greater democracy in return. That’s the condition of our support for independence; not more higher wages, lower tax, better quality services, a seat at the UN, etc., but greater democracy. Take it or leave it, Ms Sturgeon.

  5. Dave says:

    Scotland is a SOVEREIGN nation. All the F.M. Sturgeon had to do last year after she and the ‘new’ S.N.P. were elected to deliver independence was do just that. That’s why they were elected. With the Greens on-side a vote should have been called and we would have been independent now as we put together our own programmes internally and with any country we choose to do business with.

    The 1707 agreement was between two sovereign nations, Scotland and England. NO referendum was held. The Scottish Gov’t VOTED for it. That’s all we have to do right now. A SCOTTISH GOV’T DECARATION of INDEPENDENCE. It is a complete waste of time reading F.M. Sturgeon’s white paper which most Scots won’t do anyway and those that will won’t understand it. The LAW which the F.M. Sturgeon refers to is ENGLISH law. So we will get more pathetic begging from the F.M. to the English aristocrats which adds up to another delay on top of the 8 years we’ve already had. Its time for the SNP membership to wake up and demand the resignation of this F.M. who is incapable of delivering Independence. We have the leaders who are committed to independence and will not cow tow or beg to the
    English aristocrats as this F.M. does.

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