Scottish independence is a political matter not a legal quandary
In the end, it came with a whimper, not a bang. But the Supreme Court’s short and almost demure decision in the Lord Advocate’s reference on the legality of a ‘wildcat’ Scottish independence referendum was as unequivocal as a court judgement can ever be.
The Scottish Parliament, it held unanimously, does not have the power to authorise the holding of a second independence referendum unless the British government were to give its consent. And since the latter has repeatedly refused to grant this, Nicola Sturgeon’s roadmap to a second vote next year seems to have hit an insurmountable bump.
Already recriminations are flying. Alex Salmond, who as first minister was fond of attacking the Supreme Court as an ‘English’ institution with no business in Scotland, called Sturgeon’s decision to seek the Court’s opinion “a bad gamble that hasn’t paid off”. Much better, in his typically brash view, if Holyrood had passed the referendum bill and dared the British government to challenge it, though what this would have changed (except for reversing the onus of grievance) he did not say.
Sturgeon, meanwhile, professed acceptance of the verdict, whilst at the same time suggesting that “the notion of the UK as a voluntary partnership of nations, if it ever was a reality, is no longer a reality” as a result of the decision. Her rebranding of the Yes campaign to “Scotland’s democracy movement”, so far almost her only concrete response, is likely to convince no one who wasn’t already convinced.
But the Supreme Court judgement merely reaffirmed principles which are obvious to all but the most die-hard Indy supporter. Self-determination through secession, at the level of international law, is only available to colonial peoples or (perhaps, for there is considerable dispute on this point) to peoples severely oppressed by their government. The Scottish people are neither, and the Supreme Court, whose top two judges are both Scottish, had no trouble saying so.
What is next for the Scottish nationalists? In the short-to-medium term, independence is dead in the water. Successive post-Cameron prime ministers’ “just say no” approach has been vindicated legally and politically, and there is no prospect of Rishi Sunak changing his mind, no matter how many times Sturgeon tries to goad him into allowing a second referendum. On the Labour side, Keir Starmer’s repeated rejection of any pact with the SNP to allow Indyref2, which must be taken as sincere, only adds to the bleakness of the First Minister’s more immediate prospects.
But despite the legal setback, the Yes movement can still count on the support of a solid minority of the Scottish population. More worryingly for unionists, young Scots are largely in favour of independence, and the numbers show no signs of improvement.
Having been raised in a post-devolution Scotland, where the British state can often seem like an afterthought confined to a few buildings in Edinburgh, they naturally do not see the union of the United Kingdom in the same way as past generations. But neither is demography destiny — Quebec separatism, in many ways the model for the Scottish independence movement, is dead in the water after decades of dire predictions about its inevitability.
Meanwhile, Starmer’s continued flirtation with constitutional reform, which is now said to include a further round of devolution (what is left to devolve to Scotland?), some sort of reformed regional upper house, and much else besides, risk disturbing this fragile status quo. Few think the current constitutional settlement is ideal; but any further tilting of the balance toward fashionable quasi-federalism is bound to create further instability in what is a fragile settlement.
Ultimately, the future of the union of the United Kingdom remains a political question instead of a legal one. The judges have blocked the SNP’s current plan for independence; but statutes are not everlasting, not even the Scotland Act 1998. If the union is to endure, the bonds which unite Scotland and the rest of the United Kingdom — political or personal, emotional or economic — need to be renewed. And that is something not even the most learned of judgments can do.
Yuan Yi Zhu is senior research fellow at Policy Exchange’s Judicial Power Project