It is no surprise that the Supreme Court has ruled
that the Scottish Parliament cannot hold even an advisory referendum on
independence without permission. If it could have done so now, why didn’t it do
so in 2014 or at any time previously.
The mandate for setting up the Scottish Parliament in the
first place was based on there being devolved and reserved issues. This is what
devolution means. The UK is not a federation let alone a confederation. We do
not have rival parliaments with equal status. Rather when Scots voted for devolution,
they accepted that it would only deal with certain issues. One of the issues
that it would not deal with was the constitution.
Nicola Sturgeon has thus spent millions of taxpayer’s
money to establish in law what we all knew already. The Scottish Parliament
cannot rule on reserved issues. But this ruling has some important
consequences.
The SNP claim to have a mandate for an independence
referendum based on its support at the last Scottish Parliament election. But
the Supreme Court has legally ruled that despite that support it does not have
mandate to hold the referendum.
But if the SNP does not have a mandate now because of
its votes at a Scottish Parliament Election, it cannot either have a mandate if
it wins a majority or indeed all the seats at a General Election.
For a party to have a mandate from a General Election
it needs to win a majority of seats in the House of Commons. But the SNP could
not achieve this even if it won all the seats and all the votes in Scotland.
So, the SNP cannot have a mandate for its devolved parliament
because independence is outside of the control of the parliament, and it cannot
have a mandate at Westminster either because it cannot win enough seats. So, it
cannot have a mandate period.
But if the SNP cannot have a mandate for independence,
it cannot achieve independence democratically, not because someone is acting in
an undemocratic manner towards Scotland, but because there is no legal right to
secession in a modern European democracy. This is what the Supreme Court is saying.
What options are left for Scottish nationalists? They
can go on demonstrations or engage in acts of civil disobedience. But none of
these will change the fact that support for Scottish independence hovers
between 45 and 50%. Demonstrations and civil disobedience only work if you have
overwhelming support for your cause. If you don’t, they are as likely to harm
the cause rather like Extinction Rebellion. So long as no one overreacts to
demonstrations or civil disobedience (c.f. Easter 1916 for what not to do),
they can safely be ignored.
The Scottish Parliament or the SNP could go down the
unilateral route. But if support for independence is around half on the
assumption that it would take place with cooperation after a legal vote, my
guess is that it would fall considerably if we were confronted with UDI. There
would be no EU membership. There would be limited recognition from other states
and not much cooperation either. Good luck with that.
The final alternative is revolution. If the American
could win independence that way, then Scotland could do so likewise. No one is
going to fight to stop it. But the problem with revolution is much the same as
with UDI. Scotland is a reasonably prosperous part of the UK anything like UDI
or revolution that would undermine that prosperity is going to have tiny
support.
Sturgeon may or may not decide that the next General
Election will be a de facto referendum on independence. But even if the SNP
plus fellow travellers won 50% of the vote there is nothing in the constitution
to suppose that this would give them a mandate to negotiate independence. If
the UK Government refused to meet the SNP delegation, Sturgeon would be left
with UDI and revolution once more.
The UK Government can now legally refuse a second
independence referendum forever. Whether it would do so is a different matter.
This is no longer a legal issue but a political one. If support for
independence were high enough for a sustained period, then I don’t think the UK
Government would refuse.
We don’t know what might constitute enough support for
independence. But if support were consistently over 60% for a few years, then
the UK Government might grant a referendum not because it had to, but because
it thought it was politically the right thing to do.
Scottish nationalists may make all sorts of statements
about the UK being undemocratic, but this is obviously untrue. Even if 100% of
Glaswegians voted for Glasgow’s independence it would not give Glasgow the
right to leave Scotland. To say that Glasgow is not a country is to assume what
you are trying to prove. Scotland is called a country, but it is not an
independent sovereign nation state and cannot suppose that it has the rights of
one.
The UK is a unitary state with devolution it has the
same right to territorial integrity as Scotland would have if it were
independent. The fact that the parts of the UK are called countries and play
international football is quite immaterial.
For the same reason as South Carolina cannot declare independence,
nor Bavaria nor Lombardy, so too it is perfectly just and democratic for the UK
Government to block Scottish secession. This is what the judges have told us.
But because most people in the UK have an identity
strongly connected with one of its parts there may be a political reason to
allow referendums on secession which do not apply in other countries.
For the moment Scottish nationalists would be best
advised to change the timescale of their goal. Scottish independence if it is
to happen will require decades of work and a significant change in attitude.
Let us give up this division as it helps neither side.
The task for both Pro UK people and Scottish
nationalists is to improve Scotland. Let’s make the economy better and let’s
work on making Scotland a more pleasant place to live. Accept that you probably
won’t see Scottish independence in your lifetime. Then we can move on to
healing some of the wounds and together make Scotland better for all of us.
