Chamber and committees

The transport minister is in regular contact with the aviation sector and has recently had discussions on services during the summer holidays.

Back in May, the minister wrote to the United Kingdom Government about the significant delays at some airports in England, noting that they would concern people in Scotland who planned to travel soon from them. She sought assurances that the UK Government is taking action to ensure that there is no repetition this summer of the inconvenience that has been caused to passengers and business. We have had no response yet, but we continue to press UK ministers to ensure that there is adequate staffing in place at international border controls at Scottish airports. Part of the challenge is that there are now controls in place for visits to and from European Union countries, which is yet another consequence of a Brexit that Scotland did not vote for and another reason for us to be charge of our own future.

If Sue Webber is telling me that that bill has been published this morning, I welcome that, because I cannot throw my weight behind a bill that I literally have not seen.

I have said in the chamber on many occasions that I have an open mind and want to give as much support to the bill as possible. However, most reasonable people would understand that I cannot support a bill that I literally have not seen because it has not been published.

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.]

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.]

Douglas Ross has also demonstrated an apparent inability to listen to what was said in the statement. I know that the legality of a referendum that is agreed by Parliament without a section 30 order is contested. That is why I have asked the Lord Advocate to refer the matter to the Supreme Court, so that that legality can be put beyond any doubt. A referendum that goes ahead will be undisputedly legal, because the Supreme Court will have deemed it to be so.

At that stage, any claims about boycotts will sound even sillier than they do now, and will demonstrate one thing and one thing only—that the Conservatives have no confidence in the arguments for continuation of the union.

We have a strange conundrum in Scotland, whereby the Tories suggest that nobody in Scotland wants the opportunity to choose independence in a referendum, yet the people of Scotland have somehow managed to elect a majority of MSPs in Parliament who propose an independence referendum.

Douglas Ross also says that a clear majority do not want independence. I gently suggest to him that if he were confident about that, he would be desperate to put the question to the people of Scotland in a referendum.

My plans are to equip Parliament, and this country, with all the powers and resources that other independent countries take for granted, and that we need in order to navigate the challenges that Scotland, in common with the rest of the world, faces now.

The truth is that Scotland is paying a price for not being independent. We were ripped out of the European Union and the single market completely against our will, and we are suffering one of the worst cost of living crises in the developed world because of that. We have higher inflation than any other G7 country and lower growth than any G20 country other than Russia.

We are seeing children being pushed into poverty by a Conservative Government that we did not elect. Scotland needs independence in order to better navigate those challenges, so that all the focus, power and resources of this Government and future Scottish Governments can be on exactly that point: addressing the priorities of the Scottish people, in line with mandates that have been given by the Scottish people.

Absolutely. The “Building a New Scotland” series of papers will continue. It will set out the positive case for independence, and it will take on and answer the tougher questions and challenges that people want answered. It will be about the substance of the choice that we are asking people to make.

It is perfectly legitimate in the chamber and in the democracy that we live in that people have different views and will want to make the opposite case. The issues of process will now be determined, I hope, through the Supreme Court, so let us have the debate on substance. I and my colleagues will make the case for independence, so I challenge Opposition members: why do they not come and make the substantive case for Scotland continuing to be part of the union? I suspect that I know the answer to that question. Let us have the debate on substance and then do the democratic thing: let the people decide.

—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.]