A ruling by the supreme court that the Scottish government cannot call its own referendum on independence is unsurprising, but still important. When Nicola Sturgeon asked the court to adjudicate on the matter, she must have expected it to thwart her plan for a “consultative” plebiscite next October.
The first minister is probably relieved to be spared the obligation to go through with that vote. Instead, she can focus on making the next UK general election a de facto referendum on independence – a proposition with no basis in constitutional law, but a mechanism for nationalists to campaign on something other than her party’s record in government.
The first minister conceded on Wednesday that the SNP could not “dictate the basis on which people cast their votes”. But by making separation from England the central plank of her party’s campaign, she hopes to win on a scale sufficient to make that demand irresistible.
The supreme court case was part of that campaign from the start – a gambit to restore political momentum for the nationalist cause, where the countervailing force is the drag of a long incumbency. The SNP does not want voters to judge it by its management of the public services that come under the remit of devolved government. Even many of those who are inclined to support independence can think of better things for Holyrood to be doing in the middle of an economic crisis than agitating for another referendum.
Ms Sturgeon is less interested in the substance of the court’s arguments than the platform they provide for her to claim that UK institutions and law are set up to obstruct the will of the Scottish people. Her case rested on two propositions. First, a consultative referendum, making no claim to constitutional effect, would legally fall within the scope of devolved powers. Second, it would express a right to national self-determination under international law.
There is a contradiction there, since the claim to be asserting self-determination implies defiance of repression by a colonising power, in which case the referendum’s ambition would clearly be more than consultative.
In any case, the court rejected both arguments. It found that the SNP’s draft bill had major political ramifications for the union, regardless of any recusal from constitutional impact. It also judged that Scotland’s position within the UK is not meaningfully comparable to the plight of a people blighted by foreign occupation and denied political representation, as all but the most extreme nationalists must recognise.
Ms Sturgeon is not an extremist. In her response to Wednesday’s judgment, she yielded to the authority of the court, making it clear that the fault, as she saw it, lay in the laws that the judges were interpreting and the absence therein of a mechanism of unilateral secession. She accepts that the rules say Scotland needs permission from Westminster to hold a referendum, but she calls the rules unfair.
That was not a problem ahead of the 2014 referendum, because David Cameron exercised his powers under section 30 of the Scotland Act to grant the necessary permission. But it will become a crisis if Ms Sturgeon gets the mandate she seeks at the next general election. The supreme court ruling has no bearing on the underlying case for or against independence. But it has clarified battle lines.
Ms Sturgeon intends to demonstrate such demand for separation that a Westminster government using its constitutional power of obstruction would appear to be in egregious violation of democratic principle. If unionists do not want to be caught in that position, they need something more than a legal veto over a referendum. They need the political arguments that can win one.
