UK Supreme Court's independence referendum ruling effectively says that because Scotland is not a colony, it can be treated like one – Joyce McMillan

The main surprise about Wednesday’s Supreme Court ruling on a future Scottish independence referendum is that it was so decisive.

The manner in which the case was presented, both by the UK Government and Scotland’s Lord Advocate, offered many opportunities for the court to duck the question; many believed this would have been Westminster’s preferred outcome.

The justices, though, were having none of it. They dismissed those arguments, and ruled that such a referendum, even if purely advisory, would impinge too much on reserved matters, and that Scotland has no right of self-determination which would have any bearing on the case. The clarity of the judgment sent shock waves through the Scottish body politic, whipping some unionist commentators into a foaming lather of triumphalist glee, and provoking an equally vehement response among some of the loudest voices on the independence side; and there is no doubt that it presents the SNP with some severe immediate problems.

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The first and most obvious of those problems lies in the party’s failure, since the Brexit referendum, to build up the strong and enduring 55 per cent-plus support for independence that should, in theory, have been possible, given the politics of the deeply damaging decision to leave the EU. In the end, though, Brexit, like the pandemic which followed, proved a double-edged sword, both enhancing support for independence in some respects, and creating uncertainties that make people more reluctant to vote for further disruptive change.

And the second problem – so difficult to deal with that Nicola Sturgeon has referred it to a special SNP conference early next year – lies in her promise, back in June, to make a general election into a “de facto” referendum on independence, if the Supreme Court ruled that Scotland could not legislate for an advisory referendum. At that time, it was perhaps difficult to predict the sheer depth of the cost-of-living crisis into which the UK would begin to spiral, this autumn; or the scale of the UK lead the Labour party would achieve during the chaotic endgame of the Johnson government, and the Truss debacle.

The fact remains, though, that at this moment, and probably for at least 18 months to come, the idea of asking people to go to the polls to vote only on the matter of independence, in any elections that should also be dealing with wider issues, seems so politically toxic for the SNP that they would be wise to bin it as quickly as possible.

None of that, though, changes the underlying dynamic of the political and constitutional situation that led Scotland to its current 50-50 stalemate on the independence question. In its aftermath, unionist politicians and their supporters rolled out the usual tired arguments as to why Scotland’s independence supporters should now just shut up and go away, including the laughable idea – given the Brexit crisis and its chaotic aftermath – that the matter was resolved once and for all in 2014, and should not be raised again.

And if the arguments of the unionist camp remain as negative and unpersuasive as ever, the Supreme Court ruling likewise does little to help the unionist cause. For much of its length, the judgment seems calm, thorough, and methodical to the point of dryness. The judgment on the substantive question, though, in the last 12 pages of 35, arguably strays into much more debatable political territory. As many have already noted, the ruling that even an advisory referendum would impinge on matters reserved to Westminster depends on what is essentially speculation, by the court, about the likely political impact of the result, particularly under an SNP government at Holyrood.

Independence supporters rally outside the Scottish Parliament after the Supreme Court ruled the Scottish Government could not hold a referendum on the issue (Picture: Peter Summers/Getty Images)Independence supporters rally outside the Scottish Parliament after the Supreme Court ruled the Scottish Government could not hold a referendum on the issue (Picture: Peter Summers/Getty Images)
Independence supporters rally outside the Scottish Parliament after the Supreme Court ruled the Scottish Government could not hold a referendum on the issue (Picture: Peter Summers/Getty Images)

And then secondly, in dismissing the SNP’s submission on Scotland’s right to self determination, the Supreme Court relies heavily on a Canadian Supreme Court ruling on Quebec, which was deemed to have no right of self-determination under the United Nations Charter because it is not an oppressed colony, and can participate fully in the democratic institutions of Canada. The Supreme Court ruled that Scotland, and presumably Wales, are in the same position; and technically, this ruling is surely correct.

Yet in UK political terms, the Supreme Court has effectively ruled that because Scotland is not a colony, it is therefore acceptable for Westminster governments to continue to treat it as a colony, in some vital respects; and to impose on it damaging policies which it has never supported at the ballot box.

In effect, the ruling casts Scotland into a strange legal limbo, where it is recognised as an ancient nation which entered the Union through a bilateral treaty, but now has no intrinsic right to act as a nation at all, either in the UK, or in international law.

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That position strikes me as fundamentally unsustainable, particularly given the number of senior unionists who have in their time signed the Claim Of Right, asserting Scotland’s basic right to self-determination; and in that big picture, it therefore falls to the Labour party to make what may well be one last attempt at creating a Union fit for the 21st century, if it achieves its expected general election victory in 2024. Sometime next week, former Prime Minister Gordon Brown – one of those Claim of Right signatories, back in 1988 – will announce the launch of his latest commission on UK constitutional reform, which must surely seek to free us at last from the mythology of absolute Westminster sovereignty.

And although bad governance, notably the recent chaos of post-Brexit Tory government, has played a key role in bringing the nations of the UK to the grim situation they now face, all those engaged in the constitutional debate should remember – as the First Minister, to her credit, rarely fails to do – that in politics, the great principles of democracy and self-determination are not only ends in themselves, but a means to help bring about the material security, the basic social justice and harmony, and the sustainable future that our world so desperately needs, this winter, and in all the decades to come.



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