Supreme Court ruling: Why a de-facto independence referendum is irrelevant and politicians must decide on lawful indyref2 route

The prize for the most vindicated legal prediction from 2021 surely goes to Lord Justice Carloway, Lord President of the Court of Session.

Last April, when declining to rule on an entirely hypothetical case about whether or not the Scottish Parliament had the power to hold a referendum on independence, he observed that were a real case to come before the Supreme Court, it would hinge on whether a bill “relates to the Union of the Kingdoms of Scotland and England”. "Viewed in this way”, he caustically predicted, “it might not be too difficult to arrive at a conclusion”.

And so it proved. Lord Reed of Allermuir, the Supreme Court’s (Scottish) President, prefaced his remarks by welcoming how quickly his colleagues had completed their work. And their view was emphatic.

With his very first words – “the Scottish Parliament was established by the Westminster Parliament” – Lord Reed gave a subtle, but resounding statement of the total and absolute legal supremacy of Westminster over Holyrood. Any observer familiar with the case knew where we were headed from that moment.

People outside the UK Supreme Court in London, while they waited for the decision by Supreme Court judges to grant or refuse the Scottish Parliament power to hold a referendum on independence. Picture: Aaron Chown/PA Wire

It is important not to over-dramatise what has happened. This legal outcome was predictable and predicted. All the judges did was interpret the law in a way most experts expected them to. Although there was something vaguely American in everyone involved in politics sitting around waiting for a Supreme Court judgment, the UK is not the US, and the UK’s Supreme Court is – happily – not politicised. Not even the most fervent nationalist has any justification to repeat any of the sinister “enemies of the people” nonsense from the Brexit right in 2016.

The judges did their job with precision, clarity and speed. Even their most ‘political’ observation – that Scotland is not a colony suffering military oppression – was both obviously correct and properly contextualised in international law. It’s worth remembering the Scottish Government’s consultation paper on the first referendum, published in January 2012 before it was clear the referendum would take place with UK Government agreement, contained a foreword by one Alex Salmond, which noted that “Scotland is not oppressed, and we have no need to be liberated”. The ‘colonial’ argument implicit in the SNP’s submission to the court (though not the Scottish Government’s) was silly, and deservedly slapped down.

So, the American-style courtroom theatre phase of this political drama is now over. So what now?

It’s back to politics, as it was always going to be. Indeed it would have been back to politics whatever the outcome – had there been a shock decision to grant a referendum, focus would have turned to whether unionists would have participated in, and whether the Government in London would have pledged to implement the outcome.

Independence has never been, and never will be, a legal issue. It is a political one. The type of independence sought by the Scottish Government and wider movement is not independence by force – it is a negotiated separation agreed with the UK Government. That means that at some stage in the process, Westminster has to agree a process with Holyrood. For as long as that is not forthcoming, there is no route to independence.

And therein lies the rub.

Following this entirely correct and obvious ruling, Scottish politics remains stuck in the absurd situation where the pursuit of independence is regarded as a legitimate political aspiration and is the primary political issue in the country. But there is presently no lawful, democratic way of achieving it.

There should be. And it’s up to politicians to agree and decide upon one.

Some of the more hardline unionists point out – correctly – that most democracies do not allow their own break-up. They then ask why the UK should do so. The answer is the UK does allow for its own break-up, in Northern Ireland through the 1998 Agreement. It provided a mechanism for Scotland in 2014. If the Anglo-Scottish Union is indeed a voluntary one, then there needs to be some way to decide to leave it, even if the hurdles are high.

So the political question of how Scotland can become independent if a majority so wish must be addressed. Whether the Labour Party’s forthcoming package of constitutional reforms, to follow the long-awaited report of a commission led by former prime minister Gordon Brown, will address this question remains to be seen.

What saves unionists from having to confront this absurdity right now is that although Scotland remains deeply divided on the question of independence, it is in no hurry in the short term for another highly disruptive referendum, with just over a third of Scots, at best, in favour. But far more are content to see a referendum in the medium term. So the question will not go away. And those saying “now is not the time” must realise that eventually the time comes.

The Scottish Government’s conduct throughout this process has been entirely lawful, peaceful and democratic, and the First Minister’s reaction continued in that vein. So the only lawful and democratic option open to them is to try to win as many votes as often as possible, to increase the pressure on Westminster to agree to a mechanism for independence.

The question of whether 2024’s general election is a de-facto referendum on independence is irrelevant. The only questions that matter are whether Scottish independence can be seen to have the support of a majority, and if so, if Westminster will use legal powers to resist testing the popular will a second time. If that happens, then over time the UK can no longer be regarded as a voluntary union.

All this means that a heated contest over independence will remain the dominant question in Scottish politics for the foreseeable future. Just as Scottish nationalism was never going to be able to litigate its way to independence, unionism cannot litigate it away.

- Professor Ciaran Martin, CB is Professor of Practice at the Blavatnik School of Government at the University of Oxford. A former senior UK civil servant, as Constitution Director under the Coalition he helped negotiate the Edinburgh Agreement, the framework for the 2014 independence referendum.