Nicola Sturgeon’s carefully calculated political game is starting to unravel

This week, the UK Supreme Court will consider a case brought by the Scottish Government and presented by its chief law officer, the Lord Advocate Dorothy Bain KC. The purpose of this case is to argue that Holyrood can legislate to hold a referendum on separation from the United Kingdom, which the First Minister, Nicola Sturgeon, wishes to have next October.

The UK Government contests this ability. Its chief Scots lawyer, Lord Stewart of Dirleton KC, the Advocate-General for Scotland, will counter that the legislation which created the devolved Scottish Parliament kept a number of issues reserved to Westminster, and that anything relating to the constitution plainly falls within this category.

There is a dizzying array of caveats to add to this courtroom drama. The first is that this dispute was effectively conceded by Holyrood before the last independence referendum in 2014. Then, it was widely agreed that such a poll could only legitimately be held with the consent and cooperation of Westminster, by the granting of a so-called section 30 Order which effectively altered the Scotland Act 1998 temporarily to allow the referendum to be held. This time, the UK Government is not willing to grant a section 30 Order, and will, to coin a phrase, see Holyrood in court.

The second observation is that the Lord Advocate is in a peculiar position. In her supporting memorandum to the Supreme Court, she has already conceded a good deal of her opponents’ case, accepting that the legislation Holyrood seeks to put in place “would not purport to alter or impede any legal rule constituting or affecting the union of the kingdoms of Scotland and England either directly or indirectly.” Indeed, she emphasises that “the referendum would have no prescribed legal consequences arising from its result. It is not, unlike some other referendums, self-executing.” She concluded that it is essentially a formalised opinion poll to gauge the mood of the electorate.

The final quirk of this whole affair is that the Scottish National Party (SNP)—presenting itself here as distinct from the Scottish Government—is also participating in the case, having submitted a memorandum as an “intervener”, essentially a party interested in the dispute. This document dwells on a “maximalist” view of the legal situation, stressing the important of the right to self-determination.

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It would (I think) be astonishing if the Supreme Court did anything other than refuse the Scottish Government’s case. The authorisation of a referendum of leaving the UK by the devolved administration and legislature is plainly contrary to the wording and the intent of the Scotland Act 1998: devolution was created to placate and ward off calls for independence, not enable them. It is also difficult to see what is materially different between now and 2014, when the last referendum was held, arranged omnium consensu (to the agreement of everyone) under the final authority of Westminster.

Nicola Sturgeon knows, however, that these are the highest of stakes. She has been First Minister of Scotland for eight years now, and she knows that nothing lasts for ever. If she were to leave office without a second referendum even being held; it would not stand well in her favour before posterity. As a result, she is playing a carefully calculated political game in parallel to the more limited legal play. She has made it clear that if, to her disappointment, the judges of the Supreme Court (which she is working hard to portray as an instrument of English domination) frustrate the ability of the Scottish people to express their will, then the SNP will treat the next general election as a “de facto referendum” on Scottish independence.

That framing—although one could argue that it is hardly—would entail the SNP presenting their winning anything more than half the seats in Scotland, a bar they are likely comfortably the clear, as a mandate from the people of Scotland to seek independence. It would then be prayed in aid as a weapon of significant legal and moral force to push the issue forward in the next parliament.

It is possible that a Scottish Government, rejected by the Supreme Court, could seek to hold an unofficial referendum. This “wildcat” option was in vogue some months ago but seems now to hold less appeal. Its potential for confusion and disarray is huge: if unionist councils refused to participate in the logistics, the result would be a partial poll returning results only from nationalist areas, which would lack any serious legitimacy. And such chaos does not serve the SNP’s case to be seen as a modern, responsible government like any other.

After this week’s hearing, the Supreme Court is expected to take up to two months to deliver a verdict. The result is unlikely to be an early Christmas present for the First Minister, who will have to continue to find other, more practical means to press the suit of separation; but unionists should not unwrap such a ruling with too much glee either. The technical argument in the Supreme Court is a sideshow: the real argument is happening every day on the streets of Scotland, and that is where it will be won or lost.

Eliot Wilson is a writer, broadcaster and former House of Commons clerk