Scottish independence referendum: SNP has led its followers into a dead-end at Supreme Court – Brian Wilson

The most depressing revelation to come out of the Supreme Court hearing was that it will take months for the distinguished bench to reach its decision on the legality of the Scottish Government’s plans for an independence referendum.

Since the Catalonian referendum in 2017, support for independence there has fallen (Picture: Josep Lago/AFP via Getty Images)
Since the Catalonian referendum in 2017, support for independence there has fallen (Picture: Josep Lago/AFP via Getty Images)

I don’t suppose this should come as a surprise. The law is not noted for its alacrity and this ruling will be picked over by every constitutional anorak in Scotland, in search of fault or bias. So they might as well take time to get it right.

Indeed, the “we wuz robbed” rehearsals have started already. No less a personage than Michael Russell, now president of the SNP, boomed menacingly that the Supreme Court will “fail the people of Scotland” if it declines to agree with his own learned opinion. That will have Lord Reed quaking in his boots.

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Andrew Stevenson, secretary of the Scottish Law Agents Association, thought the Supreme Court deserved more respect: “A court which has failed has not done its job properly; to accuse the Supreme Court of this is insulting… If the Scottish Government case is not upheld the only failure will have been in the merits of the case itself.”

To the SNP, this really is the most unpalatable of all prospects – that something might be their own fault. Nicola Sturgeon has already intimated a fall-back position. If the Supreme Court decides the case should fail, the judges may be right but the law will be wrong. And off we go again.

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I cannot claim to have followed proceedings closely but did catch the bit in which the Lord Advocate, Dorothy Bain, spoke plaintively about her adversary being “unfair” for stating the inescapably obvious truth about the political motivation behind the case.

“It's just not right that he should say what he said about why we're here. It’s so unfair,” complained Ms Bain, in terms more suited to the playground than the Supreme Court. It was almost enough to make strong men weep – or alternatively wonder why Scotland was being represented in this way and to what useful purpose.

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Ms Bain may, for all I know, be a skilled courtroom practitioner but it all sounded a bit pathetic and that what she really wanted to say was: “Why on earth did I ever allow myself to get landed with this crock of casuistry and will my reputation in Parliament House recover?”

A referendum that’s not really a referendum, as pleaded by Ms Bain, would be the most useless outcome of all. I’m sure Ms Sturgeon would be horrified if landed with it since she would then have to organise it while nobody who didn’t support her desired outcome would touch it with a barge-pole.

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Far better to let the grievance continue. However, there is little sign of public outrage cranking up. A third of the electorate might say, when asked, that they would like a referendum next October but there are lots of things they would like by next October, about which Ms Sturgeon is less exercised.

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It's instructive to note what has happened in Catalonia since the illegal referendum in 2017. The response of the Spanish Government was harsh yet the separatist minority has diminished to under 40 per cent. A critical factor was the election of a centre-left government in Madrid.

Similarly, the dominant political question in Scotland and the rest of the UK is not whether a clearly understood aspect of the devolution settlement can be subverted through the courts, but how a peculiarly inept Tory government can be got rid of within the shortest possible timescale.

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That will come about through a General Election and there are no short-cuts. While Ms Sturgeon may claim to “detest” the Tories, the certainty is she needs them. For too long, it has been possible for her to conflate “Westminster” with “Tories” and build the false divisions of identity politics.

Whatever the Supreme Court rules, it will become apparent that the SNP leadership has led its followers into a dead-end leading to nothing of substance. The other option will be to park the constitution and contribute to the real prospect of changing society and values for the whole UK – a very different choice.

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