Tom Gordon: Sturgeon is stuck over Indyref2 yet keeps on digging

It was, she noted, just “half of one tenth of 1 per cent of the entire Scottish budget”. She’s right. In the context of the overall public finances, it is a relatively small sum.

The costs for staging the 2014 independence vote and the 2016 EU referendum were largely forgotten in the wake of those results. As for the 2011 referendum on changing the voting system for Westminster, congratulations if you remember it happening at all.

If Nicola Sturgeon spends £20m on a date with destiny, that too will fade from memory. The more interesting question is whether she has a realistic chance to spend it, and if she doesn’t, how much is she willing to spend pretending she does.

In these pages last week Professor Adam Tomkins wrote an excellent piece about the problems Ms Sturgeon faces legislating for Indyref2 without Westminster giving Holyrood the requisite powers.

In 2013, this transfer of power, under Section 30 of the 1998 Scotland Act, put Holyrood’s legislation for a referendum the following year beyond legal challenge.

Boris Johnson has so far refused to grant a Section 30 order for Indyref2, leaving Ms Sturgeon looking at a unilateral Indyref2 Bill, a Holyrood first almost certain to be challenged by the UK Government at the Supreme Court as incompetent.

As Prof Tomkins said, Ms Sturgeon might be able to get a Bill past the Court, but only if she effectively emptied it of meaning, making clear it was not related to the reserved issue of the Union and would have no legal effect. In other words, she could hold a glorified opinion poll to learn if voters prefer independence, but that would be the size of it.

The legal scholar Stephen Tierney, Professor of Constitutional Theory at Edinburgh University, made a similar point in 2017, saying that for Indyref2 to be legal in the absence of Westminster’s consent, its “legal inconsequentiality” would be crucial. “It would not bind the UK Government to give effect to a pro-independence outcome,” he said.

So Ms Sturgeon could have a legal referendum about independence, but only if it doesn’t actually deliver independence. Let’s call this Catch-23, after the year she says the vote will be held. It’s some catch.

But why bother? The Prime Minister isn’t going to back down. The idea that an enfeebled Mr Johnson would suddenly grant a Section 30 request is laughable. I doubt his MPs would let him if he tried.

But he won’t. His priority is saving his own neck by looking busy on the cost of living crisis, the economy, NHS backlogs, levelling up and a host of other priorities.

Ripping up his own manifesto and embracing Indyref2 is a non-starter.

And if he’s replaced soon, the next Tory leader’s focus will be on surviving the 2024 general election. They won’t want to get sidetracked onto Indyref2 either.

You might think that Ms Sturgeon could try to have it both ways: pass a weak-as-water Bill to get round the Supreme Court, but with a wink tell Yes supporters that, never fear, it’ll deliver independence regardless, as the political force of the result would be impossible to ignore.

That way there could still be months of campaigning to gee up the movement and generate debate about the need to escape from this mad Tory-flavoured Union.

Even when the referendum was inevitably delayed or came to nothing - Unionists refusing to run a No campaign, for instance - the exercise would still have served a cynical political purpose by teeing up the SNP for the 2024 election.

But when legislation is introduced at Holyrood, there is more to it than just the Bill itself. Each Government Bill arrives with an entourage of supporting papers.

These include a statement on legislative competence, a memorandum on any secondary legislation it might empower ministers to make, a memorandum about costs, explanatory notes, and a memorandum saying why the legislation exists.

This latter policy memorandum has to spell out very clearly what a Bill is about.

There is no scope for politicians to nudge and wink about its purpose.

The policy memorandum for the 2013 Scottish Independence Referendum Bill didn’t mess about. It began by declaring: “The Bill provides for a referendum to be held on whether Scotland should be an independent country.”

It then said why: “The Scottish Government believes that the future prosperity and development of Scotland would be best served by it becoming independent. The referendum provided for by the Bill would provide the people of Scotland with the opportunity to vote on whether Scotland should be independent.”

And that is the standard by which any future referendum Bill would be judged.

If Ms Sturgeon introduced a Bill that watered down that policy statement - perhaps talking about the aim being merely to gauge public opinion on independence but not lead directly to it - the Yes movement would be in uproar, with Alex Salmond’s Alba party doubtless leading the cries of betrayal. The thing would fall apart as soon as it appeared.

Unionists would ignore it, Nationalists would scorn it. It would not be a useful political device, but an albatross hung around the First Minister’s neck.

So Ms Sturgeon appears stuck, unable to go forward with meaningful legislation, unwilling to admit she knows it.

Spending £20m on a genuine referendum that would either deliver independence or pause the issue for a generation might be a “good investment”.

But spending it, or a fair chunk of it, on some abortive make-believe certainly isn’t. Blowing a couple of million on a doomed sham, on a PretendyRef, would not be forgotten by voters in a hurry. That’s the kind of wanton waste of public money people take to heart.

However for now the panto continues. We are told to expect a series of papers on aspects of independence soon, yet how to turn them into reality remains unclear. And all the while the costs keep rising.

Ms Sturgeon is in a hole, and the advice to people in holes is always the same.

She should abandon the pretence before it is too late and comes to define her.