THE Supreme Court's rejection of the SNP’s written arguments around self-determination is a “serious paradigm shift” in the terms of the independence debate, it has been argued.
The pro-indy party was allowed to intervene, in writing only, on the reference to the UK’s highest court on whether or not Holyrood has the competence to legislate for a referendum.
However, when Lord Reed delivered the ruling on Wednesday, that Scotland can’t hold indyref2 without Westminster’s permission, he said the five justices “couldn’t accept” the arguments put forward by the SNP.
The First Minister told The National that while she accepts the court judgment she hopes even opponents of independence “accept the principle” of self-determination.
Tommy Sheppard, the SNP’s Westminster spokesperson for the constitution, said that the understanding of self-determination has underpinned the independence debate, and the devolution debate before it, for decades.
While Alba says that the Supreme Court decision “dismissing” self-determination was a “vast overreach”.
However, constitutional experts said that they were unsurprised by the decision as the justices were confined to ruling on self-determination within international law, and in that context, Scotland does not fit the criteria of a colony or oppressed people.
What exactly did the Supreme Court ruling say?
The SNP referenced self-determination on 46 occasions in their written submission, arguing that it is a “fundamental and inalienable right” in international law and for the principle of its legality in domestic law. However, the court ruled that when two possible readings of the provisions overlap, then international law should take precedence.
The justices referenced the Canadian Supreme Court where the issue of self-determination was considered in the case of Quebec’s case, which ultimately found the territory could not unilaterally secede.
The Canadian court said that under international law the right to self-determination applies to former colonies or where a “people is oppressed”.
It continued: “As for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.”
Aileen McHarg, professor of public law and human rights, told The National: “The Court’s rejection of the argument that international law supports Scotland’s right to secede from the UK was, in my view, unsurprising.”
What have pro-independence politicians said about it?
Speaking at a press conference just hours following the Supreme Court’s verdict, the FM told The National she had only had time to quickly skim the judgment. However, she added: “Self determination is an accepted part of international law.
“I think and this is where I need to study the written judgment, he [Lord Reed] was referring to the principles around interpretations of statutes, but I think and hope that even the opponents of Scottish independence accept the principle of self determination.”
Sheppard, SNP MP for Edinburgh East, said that for decades there has been a “general consensus” that no matter what constitutional arrangements Scotland has, it should be for the people to decide.
He explained: “We believe that the people of Scotland have the right to determine the form of government best suited to their needs, in other words independence, confederation, part of the union, whatever it is, should be decided by the people.
“The Supreme Court judgment has driven carts and horses through that which has underpinned discussions for decades now.
“It has left a gaping hole in the UK constitution. We now have a situation whereby a component union, one, any, cannot review the arrangements it has with the others without their consent, and that is new territory.”
Unless the UK Government makes amendments to the Scotland Act to allow the Scottish Government to consult with the people of Scotland their preference for governance then it is no longer a “union of consent”, Sheppard added.
He said: “That’s a serious paradigm shift in terms of this whole debate.
“My view is if the UK Government has any decency, it would amend the Scotland Act in order to give the Scottish Government power to consult with people on how they are ruled in future.”
Sheppard added: “I’m fearful the court’s determination in this has undermined the notion of self-determination in respect of union with the UK, which has underpinned the devolution and independence debate for decades, and that's what now needs to be addressed and clarified.”
Neale Hanvey, Alba MP for Kirkcaldy and Cowdenbeath, suggested the Supreme Court “vastly overreached itself” by dismissing Scotland’s right to self-determination off the back of the SNP’s written submission.
He added: “The idea that only colonies or oppressed and occupied people have the right to move to independence is nonsensical and unsustainable and at variance with both Scottish constitutional history and tradition and indeed accepted international law.
“However, the key point is that Lord Reed and his colleagues put their legal boot into Scotland without choosing to even hear the arguments properly and that cannot be tolerated by any self-respecting Scot.
“Like establishments through history in their anxiety to protect the status quo they have unintentionally ignited a fiery cross which the Westminster Government will find it difficult to suppress.”
The Supreme Court reference said that the Advocate General, the UK’s top law officer in Scotland, “does not dispute that the United Kingdom recognises and respects the right of self-determination in international law”.
