A tale of two paradoxes: Sturgeon’s legacy to the constitution

By: Seán Patrick Griffin

For Scotland, the campaign continues, and the dream shall never die.

These, the assuaging words of then-First Minister Alex Salmond announcing his intention to resign the morning after losing the Scottish independence referendum in September 2014. Two months later, his deputy and long-time protégé, Nicola Sturgeon, was anointed into the top job in Scottish politics – to lead the SNP in pursuit of its dream and to prosecute the case for Scottish independence. After her own resignation last week, what is Sturgeon’s legacy to the UK constitution?

Despite the initial dejection following the referendum result in 2014, there was little time for Sturgeon to lick her wounds. Constitutional reform was high on the political agenda in both Holyrood and Westminster. “The Vow” solemnly handed down by Prime Minister David Cameron on the day after the referendum promised extensive new devolved powers for the Scottish Parliament, a guarantee of the permanent status of the Scottish Parliament and Scottish Government, and protection of the Barnett formula for funding of the devolved administration. Sturgeon’s first responsibility as First Minister was to oversee its delivery to Scotland.

The Smith Commission was appointed and in November 2014 proposed a raft of constitutional changes. Sturgeon initially welcomed the proposals but argued that the Commission had gone nowhere near far enough to deliver the “Powerhouse Parliament” she wanted to see at Holyrood. 

In what was to become typical of her tenure at Bute House, Sturgeon was pushing the limits for more powers: for control over the National Minimum Wage, Income Tax and National Insurance as well as Universal Credit to “create a better system to lift people out of poverty, to get our economy growing.” The resulting Scotland Act 2016 implemented many of the recommendations of the Smith Commission. However, it fell well short of Sturgeon’s demands for some version of “Home Rule”.

While voters in the referendum had rejected independence, Scottish politics post-2014 was electrified by the constitutional debate and the referendum experience. This was demonstrated in the seismic 2015 General Election in which the tectonic plates of Scottish politics shifted. Sturgeon led the SNP to a stunning victory winning 56 seats in the House of Commons, gaining mostly at the expense of Labour, but also taking seats from the Liberal Democrats. The wave of pro-independence MPs heading for Westminster was confirmation, if any was needed, that politics in Scotland had become polarised along the axis of the nation’s constitutional future. Sturgeon was at the helm of a Scotland which had changed, and changed utterly.

Her election-winning streak continued into the 2016 Scottish Parliament election which, although suffering the loss of some seats for the SNP in Holyrood, resulted in Sturgeon’s party as the unequivocal victor. Similarly, in the 2017 General Election, while the SNP tsunami receded, Sturgeon was still able to claim triumph for the SNP as the undisputed dominant party of Scottish politics.

Understandably buoyed by these election successes, Sturgeon became emboldened. Continuing the theme of pushing the constitutional limits of the Scottish devolution settlement, the First Minister introduced the EU Continuity Bill in an attempt to ensure, inter alia, Scots law alignment with EU law post-Brexit.[1] The Bill broke new constitutional ground in being the first referred to the Supreme Court by the UK Government under s. 33 of the Scotland Act 1998, where elements of the Bill were held to be outwith the legislative competence of the Scottish Parliament if passed, and therefore not law.[2]

Sturgeon’s efforts to push the limits of Scottish devolution intensified. Following the 2019 General Election and the return of Boris Johnson as Prime Minister, it was clear there was going to be a constitutional battle over the holding of a second independence referendum. Sturgeon was adamant that the Scottish Government had a mandate for holding a second referendum on the basis that the SNP won the 2016 Scottish Parliament election and Brexit represented a material change of circumstances. Johnson made clear that his government would not grant a s. 30 Order to furnish the Scottish Parliament with the power to hold it, following the precedent of the Edinburgh Agreement in 2012. 

This posed a problem for the First Minister. Her solution was to pursue an aggressive strategy to hold a second referendum without the UK Government’s consent, but first she reasoned the Scottish Government should test the legality of such a proposed referendum by asking her Lord Advocate to refer the question of the legality of the draft referendum Bill to the Supreme Court under paragraph 34 of Schedule 6 to the Scotland Act 1998, another constitutional first. [3]  

In November 2022, the Supreme Court held unanimously that the draft Bill would be outwith the competence of the Scottish Parliament in the absence of a specific grant of power from Westminster. According to the Court, the purpose of the draft Bill – holding an independence referendum – evidently encompassed the question of whether the Union should be terminated, which is a reserved matter.

Sturgeon faced a constitutional roadblock. However, rather than backing down, she doubled down. She branded the decision by the UK Government to refuse the grant of a s. 30 Order a “democratic outrage”, and argued that the Supreme Court ruling confirmed that “the notion of the UK as a voluntary partnership of nations, if it ever was a reality, is no longer a reality.”[4] In these circumstances, Sturgeon insisted alternative means were necessary to ensure Scottish democracy was not denied and Scotland’s voice was heard on independence.

Quite incredibly, Sturgeon upped the ante considerably to propose that the next UK General Election be a de factoreferendum on Scottish independence. While the details of this proposal have yet to be fleshed out, it is difficult to envisage how this approach could deliver independence in practice. For a start, how would support for independence be measured? What would be the threshold? Would votes for other pro-independence parties count? Even more vexing is the question over what would be the legal mechanism to dissolve the Union.  It seems unlikely that the international community would recognise a Unilateral Declaration of Independence by the Scottish Government, so we are left guessing the answer to this quite fundamental question. 

What this proposal signified was the high-water mark of the bullish brand of Scottish nationalism of the Scottish Government under Sturgeon. Since 2014 when Sturgeon took over the reins, there has been an increasing assertiveness and active attempt by the Scottish Government to push back on the power hoarding tendencies of the UK Government post-Brexit. Alongside this was an effort to push forth the boundaries of Scottish devolution to their limit in the pursuit of more powers and, ultimately, independence. 

This can be seen in the examples already discussed but also in the passing of the UNHCR Bill and in the withholding of legislative consent to an ever-increasing number of UK Parliament Bills, most notably in relation to the Internal Market Act 2020. It can also be seen in Sturgeon’s recent throwing down of the gauntlet in declaring the Scottish Government is likely to challenge the UK Government’s decision to block the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent under s. 35 of the Scotland Act 1998.[5]

The paradox is that while the Scottish Government under Sturgeon’s leadership has become eager to gain more powers, it has simultaneously under-utilised the powers already available to it under the current devolution settlement. Specific examples of this can be seen in social security in the failure to wipe off the debt of tenants in rent arrears from the bedroom tax and the failure to legislate to prohibit Scottish local authorities from evicting tenants in such arrears. 

Since the Scotland Act 2016, the Scottish Government has also had the power to introduce a top-up benefit in relation to Universal Credit to make up for social security shortfalls or to create a new benefit in its entirety. However, it has taken over six years to establish such a benefit in the form of the Scottish Child Payment introduced in November 2022.[6]Another example in this area is the request from the Scottish Government that the DWP continue to administer a number of benefits until 2026 despite them being devolved under the 2016 Act.

There are countless other examples of under-utilisation of current powers. The juxtaposition of the insatiable craving for more powers and the repeated failure of the Scottish Government to act is particularly jarring, then.

A second paradox of Sturgeon’s period in office relates to the substantive blueprint for an independent Scotland now offered by the SNP. During the 2014 referendum campaign, the SNP railed against the UK economic model and Tory austerity as the main drivers of Scotland’s social and economic woes. Despite losing the referendum, the SNP was successfully able to fuse social justice arguments with arguments for independence. The narrative that a new independent Scottish state could be a life raft to escape Tory austerity appeared to hold water and proved persuasive.

However, the 2014 economic vision of a prosperous and more egalitarian independent Scotland lacked detail on how it would be delivered and was also predicated on the extraordinarily high price of oil at the time.[7] This seemed to have been recognised by Sturgeon, and in 2018 she appointed the Sustainable Growth Commission to provide an economic prospectus for a newly independent Scotland. The Commission’s report was a revealing insight into Sturgeon’s vision. To achieve fiscal discipline and international credibility, Scotland would likely have to implement even more draconian levels of cuts to public spending and/or tax increases.[8]

The situation has deteriorated further since 2018 as a result of Brexit and the COVID-19 pandemic, with a potentially larger budget deficit facing an independent Scotland and the prospect of Northern Ireland-style cross-border issues between Scotland and England in the event an independent Scotland was admitted to the EU.[9] Moreover, one of the largest gaps in the 2014 White Paper related to which currency would be used post-independence.[10] Sturgeon’s answer to this in more recent times has been Sterlingisation with the Bank of England remaining as Scotland’s central bank.[11]Sturgeon, then, advocated a continuity brand of nationalism where Scotland might formally leave the UK and regain national sovereignty but would effectively become a neoliberal vassal state beholden to the City of London, HM Treasury, and the Bank of England in the setting of fiscal and monetary policy.

The First Minister’s legacy to the constitution is therefore a story of two paradoxes. First, a bullish Scottish nationalism aggressively pursuing more powers and independence for Scotland deeply at odds with a domestic conservatism characterised by a failure to make full use of existing powers. And second, a professed rejection of the UK economic model and a desperate dash to leave the Union against a continuity brand of nationalism which advocates an independent Scotland closely aligned to the successor British state.

Perhaps a final irony summing up Sturgeon’s near-decade long run as First Minister is that, despite the apparent increase in support for independence in the opinion polls since 2014 as well as Sturgeon’s high personal approval ratings, the prospect of Scottish independence appears more elusive now than at any point in the last eight years. After years of domestic conservatism allied with continuity nationalism, it also feels as though the hope of any form of radicalism post-independence might be misplaced.

Faced with the adverse ruling of the Supreme Court, the Scottish Government is now boxed into a corner. There are too many practical and legal challenges facing the de facto referendum concept to realistically make it a viable strategy to achieve Scottish independence. Perhaps the SNP’s realisation that they have been led down this constitutional cul-de-sac is the reason for Sturgeon’s sudden departure.

Despite the paradoxes and apparent inconsistencies over the last eight years, Sturgeon was right in her speech to the SNP Conference last year to call for a recasting of the relationships between the nations of the UK. Whether that is best achieved via Sturgeon’s vision of Scottish independence or more radical constitutional reform within the UK is up for debate. Whatever the answer to that question, I’m sure the dream for her shall never die.

Seán Patrick Griffin

Seán is a Scottish solicitor with experience practising in constitutional law and human rights. He has written widely on constitutional reform and has been published in a number of books and journals on the subject.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.

[1] UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill 2018

[2] UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill 2018 – A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64

[3] Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31

[4] https://www.theguardian.com/politics/2022/nov/23/scottish-independence-supreme-court-scottish-parliament-second-referendum-indyref2

[5] https://www.heraldscotland.com/politics/23302830.fm-challenge-uk-government-gender-bill-despite-isla-bryson-row/

[6] Part 3 of the Scotland Act 2016 came into force on 5 September 2016. See Scotland Act 2016 (Commencement No. 1) Regulations 2016, Regulation 3

[7] The price of Brent Crude in 2014 was approximately $110 per barrel. At the height of the COVID-19 pandemic in 2020, the price had slumped to around $20 per barrel. Currently, the price is around $80 per barrel. While this is closer to the 2014 price, a significant gap remains but, more importantly, the last eight years has demonstrated how volatile the price of oil can be.

[8] https://ifs.org.uk/articles/weak-public-finance-position-implies-more-austerity-independent-scotland

[9] https://www.ft.com/content/c5c099a0-941c-45d6-8248-5c1ee8193fcahttps://ifs.org.uk/articles/scotlands-relative-public-finance-position-set-improve-significantly-only-temporarily

[10] Scotland’s Future, Your Guide to an Independent Scotland, the Scottish Government, November 2013

[11] https://www.holyrood.com/news/view,independent-scotland-would-use-sterling-for-as-long-as-necessary-sturgeon