It turns out that unilateral declarations of referendums and of independence are not, in fact, the way in which grown up liberal democracies handle political conversations.
That the Supreme Court rejected the Lord Advocate’s case was to be expected. What was perhaps less expected was the comprehensive way in which the Scottish Government’s case was dismantled, which may cause headaches for both the SNP and the Conservatives in the years to come.
The ruling was, of course, something of an embarrassment for the SNP, which was singled out for a withering critique of their legal arguments. It is not every day you have the head of the Supreme Court reminding you that Scotland is not, in fact, a colony or under military occupation. Some of the more fervent nationalists may, I suspect, take issue with that fact.
While the UK Government will be pleased with the result, they may yet find a sting in the tail of this ruling that will stick with them for some time.
The court made it clear in its ruling it was not looking solely at the literal legal effect of holding a (non-binding) referendum, but also the obvious practical effects. This is understandable, but it demonstrates the Supreme Court will not be dissuaded from making meaningful rulings on the basis of cunning technicalities.
A Conservative Government that has previously attempted to twist the constitution to its benefit over prorogation should take note. Indeed, over two years ago I raised with Boris Johnson the demands of some nationalists for a wildcat independence referendum. I asked a simple question: “If the Prime Minister thinks it is acceptable for his Government to ignore international law, on what basis would he oppose it?”
Therein lies the challenge for both the SNP and the Conservatives – two parties driven more by populism and nationalism than by respect for the rule of law and liberal democracy.
Nicola Sturgeon attacks the “denial of democracy” created by the Supreme Court’s ruling. In reality the constraint of power by laws and independent institutions is at the heart of successful liberal democracy, wherever it is found.
It may be tempting, as has been threatened before, for parties to scrabble for populist actions that undermine the rule of law and the norms of democratic communities. The Conservatives have previously looked at legislation to curtail the ability of courts to interpret the law. The nationalists have long-standing form in aggressive reactions to challenge from the media – or indeed anyone else.
Perhaps, however, this is an opportunity to step back from the constant constitutional fight, which erodes our political community with each new populist dividing line.
Perhaps we could tackle the ongoing problems in our NHS, with waiting lists around the block. We could talk about the needs of local councils, cut to the bone by the SNP. We could even talk about education, once the “defining mission” of the First Minister.
Yesterday instead we were treated to another tirade on the need to break up our country. Less than 24 hours before teachers were set to strike across Scotland, you might think that our First Minister could have held a press conference on what she was doing to tackle that.
- Alistair Carmichael is the Liberal Democrat MP for Orkney and Shetland