It’s been an eventful week in politics and the slow disintegration of the British state. Yesterday the UK Supreme Court announced that on Wednesday of next week it will publish its ruling on the indyref2 case brought by the Scottish Government which is seeking legal clarification on its plans to hold an independence referendum in October next year.
The court has been asked to give its judgement on the narrow question of whether the Scotland Act gives Holyrood the legal competence to hold a referendum without the explicit consent of Westminster in the form of a Section 30 order, however the implications and constitutional and political ramifications of this case go much much further.
It is no exaggeration to say that this is the most important case ever to come before the court since it was established by Gordon Brown’s government in 2009. This case goes to the very heart of the nature of the United Kingdom, a polity which has always in the modern era characterised itself as a voluntary union of nations based upon consent. This case will test whether that is indeed the case, or whether the traditional unionist claim that the UK respects Scottish sovereignty is just another convenient and self-serving lie like Gordon Brown’s infamous Vow.
It has always been the proud boast of British nationalists in Scotland that Scotland could leave the UK any time it chooses and that claim was what allowed them to angrily howl down suggestions from certain independence supporters that as a part of the UK Scotland is effectively a colony of England.
However should the Supreme Court rule that internal democratic processes within Scotland are not sufficient to allow Scotland to revisit the question of whether it wishes to remain a part of the UK, but depends upon obtaining the prior permission of politicians who derive their power from voting decisions of the English electorate, then it becomes very difficult to refute the claim that, at least politically, Scotland is an English dependency without any sovereignty of its own. Indeed, Scotland being placed in the position where its people are told that their own democratic decisions cannot be put into effect because a higher authority which Scotland cannot hold to account has abrogated to itself the power to decide what is in Scotland’s best interests is in many ways the very definition of classic colonialist paternalism.
This would have massive ramifications for traditional Scottish Unionism, and would destroy any pretence that Scotland is an equal partner in a voluntary union of nations. Scotland would have been told that it does not matter how its people vote in elections, even in elections to the Scottish Parliament, they will always be subjected to being overruled by a Conservative party which has not won an election in Scotland since the 1950s.
By the normal rules of elections in the UK, rules which have held since the introduction of the democratic franchise, the current Scottish Parliament has an indisputable democratic mandate for another referendum. Appeals to opinion polling or claims that ‘now is not the time’ by the parties which lost the 2021 Holyrood election are specious special pleading without merit, the cries of sore losers unwilling to accept that the people have spoken and the political debate about whether there ought to be another Scottish independence referendum has been settled. If democracy in Scotland is to have any meaning then there must be a referendum. A poll out from YouGov today found that only 32% of respondents think it was right to leave the EU, with 56% thinking it was wrong. For people under the age of 50 the figures are even more stark. 19% and 66% respectively. Yet the Scottish Tories who bleat about opinion polls when it comes to another independence referendum will not be deterred from their Brexit fetish.
Should the Supreme Court rule in the Scottish Government’s favour, all well and good, we will have an independence referendum in October next year. However should the Supreme Court rule that the current unelected occupant of Ten Downing Street can thwart the democratic will of the people of Scotland, this will be a ruling that within the UK, democracy in Scotland is a performative substance free exercise in play acting without import in the real world. The question of independence then becomes a question about the very preservation of democracy itself in Scotland.
There is a third possibility, the court might rule that it will not make a decision on the substance of the question until there is actually an independence referendum bill which has been passed by Holyrood. This risks trapping the matter in legal limbo, with the Scottish Government being unable to proceed with a bill which the Lord advocate is unwilling to sign off because she is not confident of its lawfulness, and the Supreme Court unwilling to rule on its lawfulness because the Lord Advocate has not signed off on it. That would be a disgraceful betrayal of Scottish democracy. Effectively from a political point of view we would be in the same position as if the Supreme Court had ruled against the Scottish Government. The legal framework of the British state will have prevented democracy in Scotland from taking its normal course and will have blocked the implementation of a mandate given to Holyrood by the electorate of Scotland in a democratic election.
A ruling against the Scottish Government will absolutely not mean that the question is settled or that the Scottish Government must go back to futile requests for a Section 30 order which will never be granted as long as the British Government believes that there is an outside chance that Scotland might vote for independence. It will mean instead that Westminster will never accept a Holyrood mandate for a referendum, and a reversion to the situation which held prior to the establishment of the devolution settlement. This will see the next election in Scotland being run as a de facto referendum, one way or another, Scotland will have its say, with Westminster’s permission or without it.
Meanwhile in Westminster the Chancellor appointed by the latest unelected Conservative Prime Minister was announcing a new round of austerity which he blamed on the Tories’ favourite bogey man in the Kremlin. Brexit has nothing to with it, the Conservative mismanagement of the economy and the energy sector has nothing to do with it. The catastrophic mini budget of Liz Truss and Kwasi Kwarteng which cost the public purse £30 billion has nothing to do with it.
But it’s the poor and the vulnerable who are going to pay the price. Not the profiteering energy giants or the wealthy who hold non-dom status. The UK gives Scotland the patronising colonialist paternalism of Alister Jack, soul crushing austerity and the trashing of democracy itself.
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