The UK Supreme Court announced on 23 November that it had unanimously voted no on the question of whether the Scottish Parliament could hold a referendum on Scottish independence without the agreement of the Westminster Parliament.
The first issue addressed by the Court was whether it even needed to answer the question.
His Majesty’s Advocate General for Scotland (who advises the Westminster Government on Scots law – not to be confused with the His Majesty’s Lord Advocate, who advises the Scottish Government on Scots law) thought not.
“Why should there be a power to refer questions (to the Supreme Court) which the Lord Advocate is able to answer?” asked the Advocate General.
After all, the Lord Advocate had stated that she was not satisfied that a Bill in Holyrood to hold a referendum was legally competent. That meant, argued the Advocate General, that “the Bill cannot be introduced.” Game over.
It was therefore “hard to see why this should be a matter of legal concern”, i.e. something which the Supreme Court needed to discuss.
But their lordships were not persuaded by the Advocate General’s opening gambit. They therefore looked at the substantive question, which, unsurprisingly, they were able to dispose of much more speedily.
A referendum on Scottish independence manifestly “does relate to reserved matters [i.e. reserved for the UK Parliament]. In particular, it relates to the Union of the Kingdoms of Scotland and England, and to the Parliament of the United Kingdom.”
As such, under the devolution settlement and the consequent division between devolved and reserved powers, it was outwith Holyrood’s powers to hold such a referendum.
The Lord Advocate’s fallback argument – that such a referendum would be no more than advisory – was given particularly short shrift:
On the one hand, their lordships pointed out, the Lord Advocate was arguing that holding a referendum was “a question of fundamental constitutional and political importance.”
At the same time she was arguing that the referendum would have “limited legal and practical effect” and that “any practical effects beyond ascertaining the views of the people of Scotland are speculative, consequential and indirect and should not be taken into account.”
The Lord Advocate could not have her cake and eat it, or words to that effect, concluded their lordships.
Acting as Intervener in the proceedings, the SNP ran an auxiliary argument, “founded on the right to self-determination in international law and the principle of legality in domestic law.” This, said the SNP, was enshrined in the United Nations Charter and various Resolutions of the UN General Assembly.
This argument was swiftly disposed of, by way of reference to the decision of the Supreme Court of Canada in Reference re. Secession of Quebec (1998):
A right to “external self-determination” (i.e. independence) applied only 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.”
Such “exceptional circumstances” had been “manifestly inapplicable” to Quebec. And also, their lordships concluded, “to the position of Scotland and the people of Scotland within the United Kingdom.”
Legally, the judgement was crystal-clear. And anything but surprising. Politically, though, the judgement resolves nothing.
It ignores the basic political and democratic right of nations to self-determination. Their lordships should read more Lenin and less caselaw.
It opens up the question of whether the United Kingdom is a voluntary federation of nations or a coercive union.
It ignores the indisputable mandate which the SNP gained in the 2021 Holyrood elections, and arguably even earlier, to hold a second referendum on Scottish independence.
Sturgeon responded to the judgement by declaring her acceptance of it and promising that, in Scotland, the next general election would be a de facto referendum on Scottish independence. But no-one – least of all Sturgeon and the SNP – can explain what that actually means.
Scottish Labour responded to the judgement by confirming its delusional status. According to Anas Sarwar: “There is not a majority in Scotland for either a referendum or independence, but there is a majority in Scotland and across the UK for change".
But support for independence has long been running on a knife-edge of around 50/50. And independence for Scotland would, from any real-world point of view, amount to a rather considerable change.
In fact, that is precisely why the Supreme Court ruled the way it did. Scottish Labour has either failed to read the judgement or failed to understand it. Or both.
While maintaining opposition to the demand for Scottish independence, Scottish Labour could and should argue for a democratic devolution of the power to call a referendum to Holyrood.
But like Labour at a national level, it is too busy chasing Tory voters to do that.
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