by Yuan Yi Zhu
Friday, 25
November 2022
Debate
16:22

The courts alone can’t save the Union

Scottish independence is a political matter not a legal quandary
by Yuan Yi Zhu
Credit: Getty.

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

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Linda Hutchinson
Linda Hutchinson
8 days ago

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.
The SNP, and especially Ms Sturgeon, has for years now been tearing at these bonds, playing down anything that has British connotations, nurturing grievances from centuries ago, distancing Scotland from British history, making laws just to be different from England, encouraging antagonisms towards the rest of the UK (or more correctly, England). It saddens me, but don’t think the rift can be mended; Ms Sturgeon has been working hard to make it permanent and I think that she has succeeded.

Denis van Mechelen
Denis van Mechelen
8 days ago

It’s always been political. The Scot’s govt has to mobilise its people and protest outside the uk parliament in large numbers. Ekection votes are rather too passive as it can be argued either way unless there is a massive landslide. Indeed the uk govt is not precluding another vote since always say other overwhelming issues means it is just not an appropriate time. Albeit after a while this argument wears a bit thin. But Scots have to remember be careful what you wish for – a bit like Brexit in reverse! After all the country is a heavily dependent public sector economy – hence its recent warning over a continued NHS Scotland.

Chris W
Chris W
8 days ago

Don’t forget – brainwashing the children.

john O'Neal
john O'Neal
5 days ago

I only hope Ulster is next.

Richard Gasson
Richard Gasson
5 days ago
Reply to  john O'Neal

Is there still the appetite for it in Dublin?

Ted Ditchburn
Ted Ditchburn
5 days ago

Separation would be terrible for England, Wales and Northern Ireland…but utterly disastrous for Scotland.
The rise of the SNP has been about the fall of Labour, and active socialists calculating that the weight of Strathclyde(Glasgow) Socialism can get to power more easily in a smaller country, than in the UK.
For centuries a divergent Scotland stayed mired in poverty, wasting it’s energies in battling the English..and vice versa. Used as an occasional catspaw by whatever continental power was on the rise, first Spain, later France, in conflicts with England.
With a divergent governing class but with ties of family, friends and society alongside a deeply integrated economic and trading structure I can only see what is a divided Scotland in constant low level conflict with England, a worsening demographic problem, and a slide back to the outer edge of Europe.
Joining some family of small nations to live in peace and happiness is a mirage, especially in the EU where the project seems to be running into the sand leaving more and more countries seeking solutions to problems , from migration to inflation and the energy crises, individually and often directly at odds with Brussels, whenever Brussels expresses a view.
The tragedy right now isn’t of a noisy insurgent party making independence inevitable and splitting the UK, it is they have split Scotland apart and fixing that may be beyond anyone’s powers for a century.

Mark Kerridge
Mark Kerridge
8 days ago

Perhaps the UK could have a referendum on whether we should dissolve the devolved assemblies altogether. just a thought.

CHARLES STANHOPE
CHARLES STANHOPE
8 days ago
Reply to  Mark Kerridge

A brilliant idea and not a moment too soon.
The death of Her Late Majesty is a perfect opportunity for a fresh start.

polidori redux
polidori redux
8 days ago
Reply to  Mark Kerridge

I have had similar thoughts: One final last UK wide referendum. Choose between the dissolution of the union and the dissoltion of the devolved assemblies.

Dustin Needle
Dustin Needle
8 days ago

They may win the vote, but they will never leave. It will all fall apart on money/settlement of assets. Nothing the English propose will ever be enough. It will always be ‘their’ fault.

Within a disinterested EU, the spotlight will burn bright on SNP’s competence and inclusivity of Unionists. The SNP need their enemy far too much now to let go.

Steve Murray
Steve Murray
8 days ago
Reply to  Dustin Needle

That’s a very pertinent point. The SNP is characterised as nothing more than being anti-English. If it were ever to succeed, like the Brexit Party its raison d’etre would be lost and a quagmire of political infighting to rival the ancient battles of the Clans would ensue.
The SNP has yet to make a convincing case with regard to how an independent Scotland would make its way in the world. There’s a perfectly good reason for that; there isn’t one. Whereas Brexiteers had a case which, even if you disagreed with it, was… IS… perfectly coherent, Scotland has no such case. Ms Sturgeon exists only to further her own profile and i’m convinced the population of Scotland as a whole are just too canny to be taken in by it.

Last edited 8 days ago by Steve Murray
Denis van Mechelen
Denis van Mechelen
8 days ago
Reply to  Steve Murray

What nonsense. No Independence Party would ever have been successful in its aim anywhere in the world if it merely wished to maintain its own existence. On independence most Independence parties dissolve as bread and butter issues take over. And by the way brexiteers never set out a detailed plan of how brexit would work. They won because remainders also pursued a negative campaign and failed to highlight the positive aspects of the EU – not least the economic advantages.

Steve Murray
Steve Murray
8 days ago

It’s the “bread and butter” issues that the SNP are signally failing to address. My point is that the case for how Scotland would become an economic entity capable of maintaining it’s own public services (massively subsidised by the Union) simply hasn’t been made. Your point about Brexiteers not setting out a plan for how the economy would work post-EU is simply wrong. The economic travails the UK faces are the results of decades of mismanagement, not Brexit. An independent Scotland would have no currency, it’s balance of payments would sink it within the term of a single parliament. Sturgeon should stop posturing and starts putting some meat on the bones, or she’ll dissolve the economy into a Scotch broth.

Last edited 8 days ago by Steve Murray
polidori redux
polidori redux
8 days ago

He made more sense than you do.
The SNP now resorts to nothing more coherent than racist ranting. I am English and so had no vote in the referendum, but somehow it is my fault that the SNP failed to convince a majority of Scots to vote for independence from the English “oppressors” – Yeah, right on.
I would approve of another referendum on the union, provided I were allowed a say. I would vote to end the union – Goodbye and good riddance.
It would be great fun. It is clear to me that Sturgeon’s career is based on nothing more than the stirring up of animosties – She is a classic rabble rousser. The last thing that she would want is for a referendum to succeed. What would she do then, poor thing? Well, I can guess: She would start bleating for “reparations”.

Hugh Bryant
Hugh Bryant
7 days ago

Nope. Brexiteers won because, for twenty years, the metropolitan class took all the ‘economic advantages’ for themselves whilst dumping all the costs onto poorer communities.

john O'Neal
john O'Neal
5 days ago
Reply to  Dustin Needle

That is just the universal evil of government dependency, it does nothing to justify England and her vicious conquest of Scotland.

Hugh Bryant
Hugh Bryant
7 days ago

I’m entirely in favour of Scottish independence (you can’t have too much democracy). Unfortunately, the Scots aren’t. A separate currency is a sine qua non of genuine independence. What Scots want is simply to be a province of any entity that isn’t the UK.

Michael Askew
Michael Askew
7 days ago
Reply to  Hugh Bryant

What the SNP want, surely?

Arnold Grutt
Arnold Grutt
5 days ago
Reply to  Hugh Bryant

I am a Scot. I am Unionist, Monarchist and anti-European.

Chris W
Chris W
7 days ago

An interesting question: if there was a UK-wide referendum, would the UK vote to lose Scotland? Why would England want to hold onto Scotland or Wales anyway?

Arnold Grutt
Arnold Grutt
5 days ago
Reply to  Chris W

“Why would England want to hold onto Scotland or Wales anyway?”

Because it will be next. I think it easy to overlook that the same kind of people who hate Britain also hate a self-governing England (because they dislike the idea of ‘self-government’ altogether. Let’s never forget that the SNP are pro-‘European’ as well as separatist).

Last edited 5 days ago by Arnold Grutt
Vivek Rajkhowa
Vivek Rajkhowa
6 days ago

There’s a simple answer to the SNP. It involves a visit to Tower Hill.

R Wright
R Wright
6 days ago

Will nobody rid me of this turbulent country?

Paul T
Paul T
7 days ago

I sometimes picture a parallel universe in which Nicola Sturgeon joined the Labour Party instead of the SNP. I imagine that, apart from the nationalist angle, she would have fitted well. In this parallel universe, as a heavy-hitting politician she wins the leadership, in 2015 or 2017, a platform from which she manages to steer the Remainer parliament towards a second EU referendum. She goes on to lead a winning campaign that reverses the 2016 result. The UK stays in the EU. Of course, this leads to a great deal of anger and protest from Brexiteers, largely justified for various reasons. But not a single person claims that Nicola Sturgeon isn’t entitled to take a lead role in UK politics because she is Scottish. Funny how things turn out.

David Barnett
David Barnett
5 days ago

Scotland deserves independence from Whitehall, but what is the point of replacing one bureaucratic tyrant with a clone based in Edinburgh?

Richard Gasson
Richard Gasson
5 days ago
Reply to  David Barnett

We all deserve independence from Whitehall, including us English!

john O'Neal
john O'Neal
5 days ago

How on earth do you arrive at the idea that Scotland is not a colonized country?!!

Richard Gasson
Richard Gasson
5 days ago
Reply to  john O'Neal

As a major force in the establishment, maintenance and continuation of the British Empire, Scotland and individual Scots were willing and equal leaders. Who was Scotland colonised by? The English? The British? If the later then how are you colonised by yourselves?

CHARLES STANHOPE
CHARLES STANHOPE
8 days ago

Now that her late Majesty Queen Elizabeth II has left us, NOW is the time to rid ourselves of that putrefying Albatross, otherwise known as Scotland (or even Alba by some Gaelic nutters)

A simple England ONLY referendum, with one simple question.
“ Should we sever the Union and jettison Scotland “?.

Clownlard Jesus
Clownlard Jesus
8 days ago

Please do jettison us, Scotland-hater, we would love that.

CHARLES STANHOPE
CHARLES STANHOPE
8 days ago

Who is going to pay your bills may I ask?
Or do ‘you’ wish to return to the state of poverty stricken barbarism that ‘we’ found you in back in 1707?

john O'Neal
john O'Neal
5 days ago

England’s conduct defined barbarism, and continues to in Ukraine.
Elizabeth is insignificant, as are all corpses.
The rise of King Chuckie of the Leftys is what should concern people.
He is scarier than the horror movie doll.
British oppression did nothing to improve Ireland or Scotland, and we surely did not need open sewers running along our lanes, or sweatshops to emulate London.
Yours is and was the Barbarian Society, as currently demonstrated in Ukraine.

Arnold Grutt
Arnold Grutt
5 days ago

There is no ‘We’.

R Wright
R Wright
6 days ago

I second this. I want shot of them. An entire nation of welfare queens draining the wealth of England.

j watson
j watson
8 days ago

Always remarkable in this debate how apparent Brexit supporters apply a reverse logic to that they applied to Brexit in how they consider the quest for Scottish independence. Talk about a blind spot.
People may vote for independence on their ‘gut’ and a sense of history, and not on a rational spreadsheet assessment of the economics. Haven’t we learned that?
And of course the irony here is it’s England that changed the dynamic. England voted for Brexit and then imposed the hardest version poss. Scotland (68%) did not.
However as we know they’ll be no vote anytime soon. Starmer’s Labour arguably holds the best hope for the Union holding together as a revitalised Labour Govt less antagonistic to Scottish voters.

Linda Hutchinson
Linda Hutchinson
7 days ago
Reply to  j watson

How do you know how the commentators voted in the BREXIT referendum? You could be right, but please do not assume.