Scottish independence is back on the table – Brexit means Nicola Sturgeon can have her cake and eat it

Shocking, isn't it? A party whose basic worldview is that Scotland is a country, and one that should decide its own destiny, dares to use its elected representation to attempt to put the clearly expressed will of the Scottish people to effect.

Actually, Nicola Sturgeon's announcement that the SNP's Westminster group will vote against the legislation implementing Brexit shouldn't even be remotely surprising to anyone who has been paying attention – it was signalled months ago by several leading figures in the party. But wilful delusion about Scotland is in serious danger of rivalling xenophobia as the UK establishment's new national sport, hence the latest round of hysterical headlines.

One recurring theme of the day is that Sturgeon is trying to have her cake and eat it by agitating for a soft Brexit, and seeking a raft of new powers for the Scottish Parliament that would essentially be compensation for an unwanted departure from the EU, while promising to vote against Brexit even in the unlikely event that she gets every single thing she asks for. But that complaint fails to understand the weakness of the UK government's position.

Sturgeon has all the authority she needs – she was handsomely re-elected in May on a specific manifesto pledge that Holyrood would reserve the right to hold a second independence referendum in the event of a material change of circumstances such as Brexit. The 62% Remain vote in June was a clear instruction to any Scottish MP who believes in the principle of a distinctive Scottish mandate.

The UK government's current Foreign Secretary is a man who once famously declared his policy on cake to be "pro having it" and "pro eating it". So, if all else fails, he'll be ideally placed to explain the painful realities of the situation to his colleagues. The supposed 'concessions' Sturgeon is asking for would not, even if delivered in full, meet the overwhelming wish of the Scottish electorate to remain a full part of the European Union. Nor would they come close to reconciling Brexit with the unambiguous guarantee of all the London parties in the 2014 independence referendum that a No vote was a vote to keep Scotland in the EU.

Sturgeon is simply going the extra mile to ensure that Scotland's interests are protected as far as possible if the worst happens – but of course she's still going to tell her MPs to vote for the option the Scottish people actually chose in June, and not for the consolation prize. The notion that she should be 'realistic' enough to negotiate away the Scottish people's pro-EU mandate in return for a few scraps from the Westminster table is no less offensive than any suggestion that Theresa May can unilaterally set aside the English Leave vote if she gets a few minor concessions from Brussels.

Indeed, it's even more offensive, because the Scottish Remain vote was considerably more decisive than the Leave vote south of the border. The implied message from London is, as ever, that the SNP must grow up and stop thinking of Scotland as a proper country. Yeah, good luck with that.

In any case, from a strategic point of view, it's actually the UK government that suffers if it fails to work with Sturgeon to protect Scotland's interests. The hardest of hard Brexits, with the basic principles of devolution cynically breached to enable the EU's powers over Scotland to be "repatriated" to London rather than to Edinburgh (giving a whole new meaning to the term "taking back control"), will ensure that the Yes campaign is pushing at an open door when the second independence referendum gets underway. So, yes, on this occasion the Scottish Government is uniquely well-positioned to have its cake and eat it. Democracy demands nothing less, and London commentators had better get used to the idea.

For now, though, they seem genuinely startled that Sturgeon has pushed ahead with the draft bill for Indyref 2. Where is the surprise there? She stated as long ago as 24<sup>th June that another referendum was "highly likely". Perhaps the announcement has come slightly earlier than expected, and it's interesting that she reaffirmed that the purpose of the bill, if enacted, would very specifically be a referendum before Brexit takes effect. But unless you buy into the black-is-white unionist interpretation of recent events as a setback for Sturgeon rather than a train wreck for May, the new statement of intent should be seen as a relatively routine development.

The genuine revelations were to be found elsewhere in Sturgeon's speech. She's never before made it so explicitly clear that she expects EU powers over devolved matters, such as fisheries and agriculture, to be transferred to Holyrood rather than to Westminster in the event of Brexit. Again, her hand is remarkably strong on that point, and she doesn't need to find anything to bargain with.

The current devolution legislation states that anything that is not specifically reserved to Westminster is automatically devolved to Scotland, except where EU law supersedes national law. So the default position is that Sturgeon will get what she wants, and if the UK government want to change that, they'll have to rip up a key part of the Scotland Act. To put it mildly, it's rather probable that they will pay a heavy penalty for driving a coach and horses through the infamous 2014 "Vow", which stated that the devolution settlement was "permanent".

Even more significantly, Sturgeon for the first time fleshed out the detail of the tests the UK government will have to pass to avert an independence referendum. The ultimatum was only delivered tacitly, but it was clear enough. Theresa May has generously been offered a couple of options – she can either agree to a soft Brexit that will enable the whole UK to retain open borders and single market membership, or she can give the Scottish government powers that would normally be associated with a sovereign state (such as over immigration and treaty-making) to enable Scotland to stay within the Single Market while nominally remaining part of hard-Brexit Britain.

The snag is, though, that May has already ruled out making either of those choices. A cynic might suppose that Sturgeon is setting tests that May is designed to fail – but a cynic would be wrong. The reality is that the SNP leader is instinctively cautious, but May's turn towards extremism has astounded her, and probably made her realise that the tactical dilemma has now largely resolved itself. Barring a U-turn from Downing Street, Scotland seems set to return to the polls by early 2019.

James Kelly is author of the Scottish pro-independence blog, SCOT goes POP! Voted one of the UK's top political bloggers, you can hear more from James on Twitter: @JamesKelly