The supreme court has been asked to decide whether a Scottish independence referendum can take place legally next October. No one should be surprised. One of the court’s responsibilities is to decide whether a bill in a devolved legislature falls outside its legislative competence. Nicola Sturgeon, the SNP first minister, has been looking for a legal way to hold a non-binding vote on Scotland’s 315-year-old union with the UK. She is hoping judges give her the authority to hold one. The court might say a “consultative” referendum – Indyref2 – is legal. But since unanimously declaring Boris Johnson’s “prorogation” of parliament unlawful, the court seems wary of constitutional confrontations.
Ms Sturgeon has had to gamble because the prime minister is opposed to another independence referendum, arguing that the 2014 vote was a “once in a generation” event. If the bench were to endorse another vote, then Lord Reed, the court president and an experienced Edinburgh judge, might become – perhaps to his dismay – a folk hero to Scottish nationalists. If judges decline to do so, Ms Sturgeon says she will fight the next UK general election on the issue of independence. This is clearly about politics as much as principles.
The SNP sees a win-win situation for itself. It heads a pro-independence majority in Holyrood and is the third-largest party in Westminster. Its activists have been clamouring for a new vote on quitting the UK since they lost the last one. Mr Johnson has a point when he says that with a cost of living crisis and Covid recovery to deal with, now is not the time to revisit the independence question. However, the Scottish first minister is also right to say that Brexit means the circumstances in which Scotland voted against independence in 2014 no longer exist. In Britain’s referendum on leaving the EU, every single area of Scotland voted remain. The Scottish question has returned to the fore because many Scots feel they have been taken on a journey to a destination they did not vote for.
All nations are created. They are made by people, events, and social and economic forces – and they can be unmade by the same forces. There is some evidence that Scottish identity has increased in the last decade. This is hardly a surprise given that it has become politicised and to a certain degree aligned with class. Most recent polls, however, do not suggest that a majority of Scots back independence. Ms Sturgeon and Mr Johnson represent very different political points of view when it comes to society and economics, yet both are nationalists. The struggle for self-determination in Ukraine suggests that this is not always a bad thing. Nationalism is often distinguished between a civic variant, based on citizenship, and a much more problematic ethnic one.
Independence is sometimes seen as a divorce. It is an odd form of separation that leaves a former couple living next door to each other. Sovereignists might be better off thinking how relationships might change over time, rather than how they end entirely. Nations, eventually, must get on with their neighbours. The lesson since 2014 is that neither Brexit nor Scottish independence offer the kind of clean break that many might anticipate or hope for.
