Ciaran Martin: A national question the Supreme Court can’t answer

Is there any longer a route by which Scotland can become independent should a majority of its citizens so wish? If so, what is it? And how and when might it be exercised? Or was 2014 the one and only chance for decades to come?

These are the questions that will decide Scotland’s constitutional future. But, despite much commentary to the contrary, none of these questions are before the UK Supreme Court in this week’s hearing. The actual questions at hand are more technical and narrow. So whatever decision the Court takes in a few month’s time will not bring the fractious politics of independence or Union to a close.

The Court simply has to decide whether a putative referendum bill proposed by the Scottish Government is within the powers of the Scottish Parliament (indeed first it has to decide if it’s too early to adjudicate the case at all, given there is no Act of the Scottish Parliament yet).

Most experts expect the Scottish Government to lose because the Scotland Act of 1998 clearly reserves the Union to Westminster. So, at the heart of the Scottish Government’s argument, as presented by the Lord Advocate Dorothy Bain, is that the outcome of a referendum would not lead directly to independence In her own words, “the legal consequences of the bill are…nil” and its practical effects “speculative” and “indirect”.

The ruling will have an impact on Scotland's independence movement.

In other words, the Bill, and any vote following it, doesn’t matter. That’s why, for all its fascination for constitutional geeks, the Supreme Court hearing is a sideshow. Independence is not, never has been, and never will be, a legal issue. It is a political one.

Scotland’s nationalists seek to achieve something highly unusual in the modern world: the consensual, negotiated and popularly mandated break-up of an established democratic nation-state. Most countries, including most advanced democracies, prohibit their own breakup. The UK, and a few other democracies, like Canada, take a different approach.

For the UK, acknowledging that the country is a multinational state has become central to its story. This has involved a vague, but (other than in Northern Ireland) uncodified understanding that the UK’s constituent nations are free to leave if they want to. But, again other than in Northern Ireland, there are no legally binding nor even politically agreed ways for allowing that to happen. Put simply, if Scotland is to become independent, the British state has to agree to it, and to the process by which it comes about. If it doesn’t agree, no court, however supreme, can do anything about it.

In 2014, the British state did agree to such a process. In 2022, it refuses to do so now, or to set out conditions as to when it might in the future. So let’s say the Scottish Government wins, unlikely though that is. That will mean some sort of vote is lawfully held. But it doesn’t mean that unionists have to take part in it, and it certainly doesn’t mean that Westminster has to act on its results and facilitate independence.

It could legislate to reverse its judicial defeat. Given the current tone from London, that is what one would expect. If, on the other hand, the Scottish Government loses, it’s back to pleading in vain with London for a Section 30 order. (And if the court rules on narrow, procedural grounds, even the political bonus of an explosive judgment that Scotland is not really a nation under British law may be denied to the independence movement).

You can take the view that this position is wise or unwise, fair or unfair. You can argue – as I do – that it changes the nature of the British Union from one based on consent to one based on law. But the political reality is none of this matters. The current UK Government – and its seemingly likely Labour successor – both say they will not agree to a binding referendum along the lines of 2014 which would, if ‘yes’ prevailed, lead to independence. Nor, it can be assumed, will they pledge to honour a Holyrood referendum even if endorsed by the Supreme Court.

So whatever the outcome there is nowhere for a lawful, peaceful and constitutional movement like Scottish nationalism to go. That in turn gives rise to the increasingly common unionist narrative that the SNP – and in particular the increasingly polarising figure of the First Minister – have run out of ideas and are on the verge of defeat.

The more challenging reality is that at least for now, they cannot win because independence is presently impossible by lawful means. The only thing the First Minister and others can do is place further pressure on London by winning votes at every opportunity. Such is the logic behind the unworkable pledge to treat the next Westminster general election as a de facto independence vote. It might be a silly idea, but what are the alternatives?

The problem for nationalists is that the electoral pressure on London to yield is strong, but not sufficiently so. Scotland is deeply divided on the issue of independence. It appears perfectly reasonable to many, for now at least, for the UK Government to say it is not defying the “settled will” of the Scottish people by resisting a referendum. More importantly, polls show that even many independence supporters are in no tearing hurry to experience the trauma of another referendum in the very near future, let alone the tumult of independence that may follow it. Some nationalists may regard the absence of a path to independence via a referendum as a democracy-denying outrage. But overall, not enough Scots do to cause London to rethink.

Unionism is changing tack because of the scale of the scare in 2014. “Yes” may have lost, but in the course of the campaign, despite all the uncertainty about pensions, currency and the like, support for independence grew from around 33 per cent to its final 45 per cent. Half that swing in any future referendum gets “Yes” over the line. So more thoughtful unionists are now insisting on a tougher threshold for any future referendum: it would only be held to confirm an already clear preference of Scots. They will not allow the independence movement to campaign its way to a narrow victory. Again, you can argue that this is unfair and undemocratic, but there’s nothing really you can do about it.

For all that, there remains a fundamental constitutional contradiction. The UK body politic accepts in principle that Scotland can become independent, and recognises there is strong, if not majority, support for such a proposition. Yet neither major UK party is willing to countenance discussing the means by which a political goal they recognise as legitimate – even if they passionately oppose it – can be attained. That, along with the deep division within Scotland over independence, explains why Scottish constitutional politics is stuck, not because the First Minister and her team are bad at constitutional strategy.

The essential question remains whether, and if so, how, the United Kingdom is ever again to allow itself to contemplate its own breakup by democratic means. Post 2014, there is no longer an answer to that question. And the Supreme Court cannot provide it. Only politicians can.

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.