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23 November 2022

Supreme Court defeat should be a signal for Nicola Sturgeon to move on, but she won’t

This futile attempt to get permission for another independence referendum has wasted energy at a time of crisis.

By Chris Deerin

In the end, the decision was quick and unanimous and inevitable – the Scottish Parliament has no legal right to hold an independence referendum without the say-so of Westminster. A statement of the obvious.

It took Lord Reed, president of the Supreme Court, just ten minutes to dismantle the case put forward by Nicola Sturgeon’s Scottish government, which was in essence that a referendum held by Holyrood would not in itself bring about the end of the Union, and therefore did not impact on matters of sovereignty that are reserved to Westminster.

This, found the Supreme Court judges, did not stack up. Sturgeon’s proposed Holyrood bill “is to hold a lawful referendum on the question of whether Scotland should become an independent country – that is, on ending the Union and the sovereignty of the United Kingdom Parliament over Scotland”.

They added: “The bill’s effect will not be confined to the holding of the referendum. Even if the referendum has no immediate legal consequences, it would be a political event with important political consequences. It is therefore clear that the proposed bill has more than a loose or consequential connection with the reserved matters of the Union of Scotland and England and the sovereignty of the United Kingdom Parliament.”

Accordingly, the proposed bill was outside the legislative competence of the Scottish Parliament.

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The SNP had made further written submissions claiming a right to self-determination based on international law and precedent. The court rejected these too, pointing out that a past ruling by the Canadian Supreme Court in relation to Quebec found: “The international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions.”

The same is clearly true of Scotland within the UK – not a colony, current or former, not an oppressed people, not denied meaningful access to government. However loudly certain types shout.

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All this might be hard for independence campaigners to accept, but Holyrood is what it is: an instrument created by Westminster to enable better and more focused democratic governance of Scotland’s education system, its health service, aspects of its economy, and more besides. It is a powerful devolved parliament, not an independent one. When Scots were asked only eight years ago if they wanted to leave the UK, the answer was, comfortably, no – and there is no evidence that anything like a majority wants to rerun that referendum at the moment.

If we now have legal clarity, the politics remain muddy. The Nationalists will point out that with the Greens they have a pro-independence majority at Holyrood and ask what the route to a future referendum is, if that is not enough. This is a fair question and one that in easier times UK ministers and civil servants might be forced to give priority. Sturgeon has already said, and confirmed yesterday, that in the event of a Supreme Court ruling of this kind she would approach the next general election as a de facto referendum – the kind of excitable idea that might seem sensible over whisky at 3am but should not still appear so at 9am.

Sturgeon’s immediate reaction was to question the modern nature of the Union, tweeting: “A law that doesn’t allow Scotland to choose our own future without Westminster consent exposes as myth any notion of the UK as a voluntary partnership and makes case for independence.”

In her subsequent 25-minute speech responding to the ruling, she went further, insisting the campaign for independence was now “as much about democracy as it is about independence”. The SNP would “launch and mobilise a major campaign in defence of Scottish democracy” for the next election. This attempt to frame the situation as an outrage and an affront, and a pledge of yet another push to capture the public imagination, may or may not appeal to an electorate currently wrestling with other matters.

The non-separatist parties will demand that the SNP government now sets aside its constitutional obsession and devotes 100 per cent of its energies to the cost-of-living crisis and protecting public services. That is one outcome we can safely predict to be unlikely. As Sturgeon also tweeted: “In a democracy our voice cannot and will not be silenced.” Perish the thought.

The truth is that Scotland will carry on as Scotland has carried on for too long – with a push-me-pull-you politics where the hard business of governance takes a distant second place to the phoney constitutional war. On that front, breathing space will only be found when the SNP are finally ejected from office. There is little sign of that happening any time soon, and so Scotland will just have to wear it.

[See also: How the SNP lost the support of the “indy-curious” like me]

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