The UK Supreme Court jugment that the Scottish government doesn’t have the legal right to hold a referendum is a huge milestone in the road to independence. It gives clarity over the nature of the Union; it ends this potentially time-consuming legal stage promptly and puts the question of Scotland’s independence firmly back into the political sphere. Here are ten takeaways from the judgment and First Minister Nicola Sturgeon’s statement in response.
1 Scotland’s independence movement respects the judgment of the Court
The judges were ruling on a matter of existing law. They don’t make the rules - they only apply them. Unlike the infamous attack by the Daily Mail on three judges involved in a High Court challenge to Brexit, when it ran their photos under the headline “Enemies of the People”, Scotland’s independence movement respects the rule of law. The First Minister of Scotland, Nicola Sturgeon said in her response to today’s judgment:
“We must be clear today that the Supreme Court does not make the law – it interprets and applies it. If the devolution settlement in the Scotland Act is inconsistent with any reasonable notion of Scottish democracy – as is now confirmed to be the case – that is the fault of Westminster lawmakers, not the justices of the Supreme Court.”
2 Only a lawful, democratic and peaceful approach will achieve successful independence
Nicola Sturgeon said that maintaining respect for the rule of law is vital for Scotland’s eventual success.
“That principle also reflects a practical reality – the route we take must be lawful and democratic for independence to be achieved.”
3 The Supreme Court did not rule on whether Scotland should become an independent country
The question the Supreme Court was asked - was: Does Holyrood have the power under the Scotland Act to hold a consultative referendum? The court decided unanimously that it does not without a section 30 order, like the one agreed for the 2014 referendum.
Presiding Judge Lord Reed said: “The Court is not asked, and cannot be asked, to express a view on the political question of whether Scotland should become an independent country. Its task is solely to decide on the provisions of the Scotland Act”.
4 The democratic mandate for independence is as strong as ever
In her response, Nicola Sturgeon said the judgment means that without a Section 30 order “the Scottish Parliament cannot legislate for the referendum the people of Scotland have instructed it to deliver. That is a hard pill for any supporter of independence – and surely indeed for any supporter of democracy – to swallow.” But she went on to reiterate the democratic basis for the request.
“The Court was not asked to decide if there is a democratic mandate for a referendum. The mandate and parliamentary majority for a referendum is undeniable. Nor was the Court asked if Scotland should be independent. Only the Scottish people can be the judge of that.”
5 Any referendum on Scottish independence would carry great democratic weight
The Scottish government argued that a referendum that was simply about consulting the people of Scotland and was not binding on the UK government could be allowed. But the Supreme Court disagreed. It said that while it may not be legally binding, it would be of huge political significance and could weaken the UK Parliament’s sovereignty over Scotland.
Lord Reed said:
” A lawfully-held referendum would have important political consequences relating to the Union and the UK parliament. Its outcome would possess the authority - in a political constitution and culture founded upon democracy - of a democratic expression of the view of the Scottish electorate. It would either strengthen or weaken the democratic legitimacy of the Union and of the UK Parliament's sovereignty over Scotland.”
6 A majority vote for independence in a general election will carry the same democratic weight
That presumably will also apply to the next general election. If more than half of the voters in that contest vote for a party standing for independence, that will also carry the weight of a democratic expression of the will of the Scottish people.
Nicola Sturgeon reiterated the SNP’s determination to seek a way for Scotland to express its democratic will on this question:
“We must and will find another democratic, lawful and constitutional means by which the Scottish people can express their will.In my view, that can only be an election The next national election scheduled for Scotland is the UK General Election, making it both the first and the most obvious opportunity to seek what I described back in June as a de facto referendum.”
7 The Supreme Court ruled Scotland can’t claim the international right to self-determination
The Scottish National Party made separate submissions to the Supreme Court in the case. It argued that Scotland could claim the right to self-determination under international law and that this should affect how the Scotland Act is interpreted. They quoted strong representations that the UK government had made to the UN in support of the principle of self-determination in other cases, such as Kosovo and the Falkland Isles.
But the Supreme Court rejected that. They interpreted cases over Quebec, Kosovo and the Falklands to mean that this right only applies to former colonies or where a people is oppressed under foreign military occupation, or where a defined group is denied equal access to government. The court said this position did not apply to Scotland.
8 So an ancient country with a voluntary Treaty has less right to self-determination than a colony?
So on the one hand, the Court said Scotland is not like a former colony, but on the other that it does not have the sovereignty to hold a referendum on its independence from the UK. That is a paradox.
Scotland is not a colony but a country with a long history, which entered into an international Treaty of Union with the UK. Surely that should make it easier, not harder to leave the Union?
9 The Supreme Court’s judgment changes the nature of the Union
The Supreme Court’s judgment means that it appears that the United Kingdom can no longer be seen as a voluntary Union. In her response, Nicola Sturgeon said that while some Unionists would crow over what they saw as a victory, others would be concerned.
“That is because they will understand that this judgment raises profound and deeply uncomfortable questions about the basis and future of the United Kingdom. Until now, it has been understood and accepted – by opponents of independence as well as by its supporters – that the UK is a voluntary partnership of nations.
“The Royal Commission on Scottish Affairs back in 1950 said this: “Scotland is a nation and voluntarily entered into the Union as a partner”. That sentiment was echoed nearly 60 years later by the cross-party Calman Commission which described the UK as “a voluntary union and partnership”. And it was reinforced in 2014 by the Smith Commission which made clear that “nothing in its report prevented Scotland becoming an independent country should the people of Scotland so choose. What today’s ruling tells us, however, is that the Scotland Act does not in fact uphold that long-held understanding of the basis of the relationships that constitute the UK – on the contrary, it shatters that understanding completely."
10 Independence is the only way for Scotland to become an equal partner in Britain's "family of nations"
Back in 2014, Scotland was told to "lead not leave" and that it was voting to remain in a partnership of equals. telling Scotland it now has no choice is likely to increase support for independence.
Independence support has already been increased by the disastrous Brexit that has been foisted upon Scotland. Nicola Sturgeon's statement said that, according to the Office for Budget Responsibility, Brexit is costing public revenues in Scotland upwards of £3.2 billion a year. Low-income households in the UK are now 22 percent poorer than their counterparts in France, and 21 percent poorer than in Germany. Independence is needed for Scotland to achieve its potential - the UK is holding Scotland back.
Let’s be blunt: a so-called partnership in which one partner is denied the right to choose a different future – or even to ask itself the question —cannot be described in any way as voluntary...And that exposes a situation that is quite simply unsustainable. In the words of former Tory Prime Minister, John Major: “No nation could be held irrevocably in a Union against its will Indeed, perhaps what today’s judgment confirms more than anything else, is that the only guarantee for Scotland of equality within the British family of nations is through independence – that fact is now clearer than ever before.”
The Supreme Court’s judgment ends the legal stage of the fight for Scotland’s independence. Scotland is a country with a long and proud history. If her people want to leave the Union that was entered into by a political treaty, then that is a democratic right.
The Supreme Court made clear that the voice of the Scottish people will carry huge political weight. If there cannot be a specific referendum on independence, that voice will be heard at the next General Election.