THE decision by the Supreme Court is that under the current devolution settlement, Holyrood cannot hold an independence referendum without the agreement of the UK Government.
So what are the next steps when it comes to First Minister Nicola Sturgeon’s plans to hold a vote next year?
A referendum could still happen on October 19 2023 as planned - if the UK Government said yes to a Section 30 order to transfer the necessary powers to the Scottish Parliament, as happened in 2014.
In her address after the court’s judgment, Sturgeon made clear she is “stand ready at any time” to reach agreement with the Prime Minister on how to enable a “lawful, democratic referendum” to take place.
But she also emphasised she would not go “cap in hand” – and that it is unlikely to happen.
“My expectation, in the short term at least, is that the UK Government will maintain its position of democracy denial,” she added.
Sturgeon has ruled out taking any route which is not “lawful and democratic” and reiterated her plan to use the next General Election as a de-facto referendum – however the details of how that will take place are still to be fleshed out.
A special SNP conference will be held in the New Year to discuss the proposal.
The First Minister said “only an election” would provide another “democratic, lawful and constitutional means by which the Scottish people can express their will”.
What about the International Court of Justice?
There’s also the question of whether the Scottish Government could now turn to the International Court of Justice – the main judicial body of the UN - which some experts have previously suggested.
But Dr Nick McKerrell, senior lecturer in law at Glasgow Caledonian University, said there was a “kick in the tail” of the Supreme Court judgment which made that route more problematic.
The SNP had argued the limitations on the powers of the Scottish Parliament in the Scotland Act should be “restrictively interpreted in a way which is compatible with that right under international law” and cited rulings in the Canadian Supreme Court and the International Court of Justice.
In his summary, Lord Reed said that the court in the Canadian case, which concerned Quebec, held that the right to self-determination under international law only exists in situations “of former colonies, or where a people is oppressed … or where a definable group is denied meaningful access to government”.
He said: “The court found that Quebec did not meet the threshold of a colonial people or an oppressed people, nor could it be suggested that Quebecers were denied meaningful access to government to pursue their political, economic, cultural and social development.
“The same is true of Scotland and the people of Scotland.”
He added that submissions made by the UK Government in the International Court of Justice case, which concerned Kosovo, were “consistent” with the Canadian case in that they argued the right to self-determination was “normally limited to situations of a colonial type or those involving foreign occupation”.
Lord Reed concluded: “That is not the position in Scotland.”
McKerrell said these were questions which the court did not necessarily have to address, as they had been made in papers which were submitted to the court by the SNP and not the Lord Advocate.
“What [Lord Reed] means is the legal principle - not just the phrase self-determination - but the legal principle of it doesn’t apply to Scotland,” he said.
“The reason I think that is significant is firstly he did not need to say it and it also makes it more difficult to raise an international law action.
“You have got the top judge in Britain, which is essentially what Lord Reed is, saying this doesn’t apply.”
He added: “There is a wee bit of a kick in the tail in that judgment on international law, it is quite a big hurdle to get over now.
“It is not impossible, but it is going to be very, very difficult.”
McKerrell said it was a situation that could change over time, but it was likely to take years.
“If there is continued evidence of ignoring democracy, you could make a legal case perhaps that self-determination would apply.
“If you have opinion polls at 65-75% in favour of independence or even in favour of having a referendum, that might alter it – but again it is still quite difficult to overcome the legal argument about self-determination, but also to get actually the route to an international court.”
