My thoughts about the UK Supreme Court ruling on Indyref2

The historic judgement by the UK Supreme Court on Wednesday, November 23rd 2022 was as disappointing as it was unsurprising. The Court has ruled that the Scottish Parliament does not have the power to hold an Independence referendum. This post is about what I think about that.

The inner courtroom of the Supreme Court of the UK (Crown Copyright)
UK Supreme Court / Crown Copyright

The historic judgement by the UK Supreme Court on Wednesday, November 23rd 2022 was as disappointing as it was unsurprising. You can read the judgement in full, or watch the summary being delivered by video all on the UK Supreme Court's website.

The Court has ruled that as a matter of law, the Scottish Parliament does not have the power to hold a referendum on Scottish Independence, due to the letter of the Scotland Act. Anything that affects the Union or the sovereignty of the UK Parliament are "reserved matters", and are therefore outwith the legislative competence of the Scottish Parliament.  

For a referendum to happen, there must be legislation passed in the Westminster Parliament to make provision for it.

This was the whole point of the case being brought before the Supreme Court - to put beyond doubt where the legal basis for a new referendum will need to come from.

While it seems that the outcome achieved was always going to be the likely one, I appreciate that the motions still had to be gone through. Making sure every option is explored properly and every question about the road to independence is answered as decisively as possible.

It's important to note that the UK Supreme Court did not make a decision about the legality of independence - they simply gave their legal opinion on whether or not the Scottish Parliament had the authority to hold such a referendum without the consent of the UK Parliament.

While it can be argued that their answer was as much political as it was strictly judicial, their ruling, and the Judges themselves must be respected.

Remember, it's not their fault that the law is awful. They just explain what the law means and do not make it. If you're upset that the law is awful choose better politicians.

Now we move on to the parts of the judgement and its concequences which are disappointing to me.  It falls into the three parts below:

  1. The democratic arguments for Scottish Independence were sadly very correct. As long as Scotland has to have permission from the UK parliament to even raise the question via referendum about ending the union gives a lie to the whole idea of the UK being a union of equals.
  2. Unless the Prime Minister (whoever they are next week) agrees to grant a Section 30 Order, a referendum on independence can not legally take place. If a wildcat referendum were to be called, it would be widely boycotted and correctly viewed by pro-UK folks as unlawful.
  3. The Scottish Government's "Plan B" has to come into action now. This will make the next UK General Election a single-issue one in Scotland. It's not an ideal way to win independence, but when a referendum is denied it is the only way for the people of Scotland to have their voices heard and to let democracy have its day.

Running a single-issue election campaign was probably nobody's first choice in the Scottish Government or in the broader Yes Movement, but that's pretty much the only option now.

What I think will happen is that pro-Indy parties like the Scottish Greens and the SNP will form an electoral alliance for the next General Election and run on a joint manifesto with just that single point:

Scotland should be an independent country and we will begin negotiations with Westminster immediately to make that a reality.

They will not be asking for permission to hold a referendum. The General Election in 2024 will effectively be a referendum. If this "Pro Scotland Alliance" wins a majority of Scotland's Westminster seats, then it is the clearly expressed democratic will of the Scottish people that Scotland should go its own way.

What frustrates me is that from 2011 in the Scottish Parliament , and even the recent few local elections have consistently returned a pro-independence majority. Right now, the Scottish Government has more than one mandate, and absolutely has the popular support and the electoral support to push harder for a Section 30 Order to still hold a referendum.

The UK Government in Westminster has no desire or reason to grant one. Given the current polling, a referendum will come about as convincingly pro-Independence as Scotland was anti-Brexit.

Regardless of what happens, we are going to be in for an interesting few years. While there is still a chance that Rishi Sunak (or whoever replaces him) will do the right thing and grant a Section 30 Order to allow the planned referendum to go ahead, the Plan B in 2024 will make the order itself moot.

Right now, frustration and disappointment aside, I do truly believe that all roads lead to Scottish Independence. It's just a matter of time and will.

I'll keep writing on this subject, and answer any questions I can going forward. If you want to find out more about what a future independent Scotland will look like, you can find whitepapers covering some of the social, political, and economical details on the Scottish Government's website.