IT’S a “no.” Having war-gamed out all the potential outcomes, all the nuances and ambiguities, the Supreme Court gave us a clear and categorical judgment on Wednesday morning. Yes, the Lord Advocate had the power to refer the controversy to the Court. No, the Scottish Parliament doesn’t have the legislative competence to hold a second referendum on Scottish independence.
Short of amending the Scotland Act – however many democratic mandates are accumulated from the Scottish people, however many MSPs vote for the idea – this judgment means that Holyrood has no direct and lawful way of asking the people of Scotland whether they wish to be an independent country.
Diehard Unionists seem delighted by this formal confirmation of Holyrood’s subordination. Some supporters of independence are understandably downhearted. But others will feel rightly fired up by the far-reaching implications of the court’s assessment of the state of the Union, and the democratic underpinning of Scotland’s participation in it. More thoughtful Unionists – rightly, I think – sense a potential political trap.
In technical terms, this case turned on how the court interpreted the Scotland Act 1998. The 1998 Act says that to fall within Holyrood’s legislative competence, proposed laws must not “relate to reserved matters”. In deciding whether a piece of legislation strays beyond Holyrood’s competence, the Scotland Act tells the courts to consider the “purpose and effect” of the legislation in all the circumstances.
The Lord Advocate presented the case on the basis that the court should focus on the legal effects of an advisory referendum, rather than the contingent and hypothetical political effects of the proposed poll. Holding a second independence poll, she argued, wouldn’t unilaterally unpick the Act of Union, disassemble the Scotland Act, or break up Britain.
The end of the UK might ultimately have been the upshot, but all of that would be contingent on political recognition and agreement and more law down the line. The UK Government took the opposite view, arguing that the proposed referendum clearly “related” to the reserved matters of “the Union of the Kingdoms of Scotland and England” and the status of the UK Parliament.
Focusing on the limited legal impact of the poll was certainly the Scottish Government’s best legal strategy. Judges are generally receptive to invitations to take their decisions on the basis of the letter of the law, rather than embarking on broader speculation about the impact of their decisions in the world of politics.
But recent decisions of the Supreme Court suggested this audience may not be entirely receptive to this approach. In the UNCRC judgment last year, the Supreme Court showed a surprising willingness to take account of the political implications of devolved legislation on Westminster – usually to justify a more restrictive interpretation of what Holyrood can and cannot do.
Lord Reed applied similar logic here. In a striking passage in today's judgment, the Supreme Court president argued that if the Scottish electorate expressed the wish “either to remain within the United Kingdom or to pursue secession” in any referendum, this “would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement”. Put short, the fact that a second independence referendum would have a real-world impact justifies not having one.
For the people in Scotland who support independence, the hard clarity of this judgment should help focus our minds. For some time, the debate about a second referendum has been overwhelmingly procedural and characterised by bickering about more – and often less – credible Plan Bs, Cs and Ds.
Sometimes people dig up a provision in the Act of Union as some kind of legal master key. Sometimes it is the Claim of Right – though when you press them, folk tend to get a bit foxed about whether they mean the 1689 Scottish counterpart to the Bill of Rights, or 1989 declaration that “the Scottish people have a right to determine the form of government best suited to their needs”. Sometimes it is international law.
Sometimes it is as vague as the claim this was “the wrong court with the wrong question”, as if another court was available which would have entertained the litigation. But there isn’t. It is a nifty marketing phrase, but basically meaningless. Whether you dub your plan B, C or D, various misconceived blue-sky legal strategies have been floated and gained traction in the hopes of finding on an easy legal solution to a complex political problem.
I entirely understand the emotional impetus here. We’re in a hugely frustrating position. But uniting all of these Elmer Gantry schemes is the idea there is some kind of legal skeleton key which unlocks the current political impasse on Scotland’s constitutional future, and if only we find it, then everything would click conveniently into place.
This has always been a fantasy. The law doesn’t have the answers you’re looking for. Don’t believe me? Just read Lord Reed’s decision on Wednesday morning. I understand the desire for easy solutions. But wishing doesn’t always make it so. The law is not a magic bullet – not for the Scottish Government, not for the UK Government or for their respective supporters on different sides of the constitutional question.
The only way for Scotland to become an independent country is if a majority of people living here want it to become one and will engage politically to make it so. One potential benefit of this discussion in the wake of Wednesday’s judgment is that there will inevitably be a return to politics in terms of the independence question.
The UK is not Spain. Scotland is not Catalonia. The Scotland Act is not a constitution. As Lord Reed has consistently held in his other devolution cases, the Scotland Act is not a constitution but just another piece of legislation which can be amended and changed. There is nothing blessed or sanctified about the list in Schedule 5 which sets out all the matters reserved to Westminster. Since 1998, there have been significant amendments to what counts as reserved already.
Lord Reed described the distribution of powers as “carefully calibrated” in his Wednesday judgment. This assessment is seriously open to question. In recent years, we have seen the powers of the Scottish Parliament ebb and flow. At times, the UK Government has extended Holyrood’s powers. With Brexit, they have used their Commons majority to claw back significant powers which would otherwise devolve to MSPs. One of the supposed benefits – one of the supposed advantages – of the UK’s uncodified constitution is that it isn’t frozen in time, a dead letter which sees the lives of the living being shaped and dictated by dead men. If the Scotland Act isn’t a constitution, then it can be changed.
At different times, the ambiguity about Holyrood’s power to legislate for a second poll has helped both the UK and Scottish Governments. This judgment leaves both positions exposed. It used to be a settled principle in Scottish constitutional life that the Union is voluntary, and that Scots retain the right to determine the form of government best suited to their needs. This was a principle once endorsed not only by pro-independence politicians, but by Scottish Labour, the Liberal Democrats and some Tory politicians. Some still genuflect in this direction.
The UK Supreme Court may not accept that Scots have a right to secede from the UK in international law – but most Scots take it for granted that they have a democratic right to self-determination. Devolution at its best sense was once monument to the idea. The 2014 referendum was another. Whether or not you support Scottish self-government, the idea this long-nurtured, deep-planted and widespread constitutional consciousness can be technically expunged by a judgment of the court is pure fantasy. The legal question about the limits of devolution may be decided. But the constitutional politics – rightly – rumble on.
