One part of Nicola Sturgeon’s statement this morning that I very strongly agreed with was her observation that sensible unionists would not be gloating about the Supreme Court ruling, but would actually be deeply concerned. A useful clue as to why that should be the case is in the ruling’s reference to Quebec – birthplace of the term “Neverendum”, which in fact was always something of a misnomer, because only two referendums on Quebec independence have ever been held. But what the word was really getting at, of course, was that the subject of a referendum dominated Quebec politics for decades, to the point that sheer boredom crept in. At almost every election after 1995, the Parti Québécois would torment themselves trying to work out what their stance on a third referendum should be, and no matter what they came up with, it seemed to cause them harm – either because the electorate didn’t want what they were offering, or because they looked divided or indecisive or dishonest about their true intentions.
Unionist parties have for years been trying to bury the SNP and the wider independence movement with the same playbook – but the Supreme Court justices have just given us a little gift in disguise, because for Scotland the Neverendum is now over. Scotland is now totally different from Quebec, because Quebec (courtesy of mysteriously having a more powerful parliament than “the most powerful devolved parliament in the world”) has the ability to hold a referendum, but we do not. From now on it’s elections all the way for us – and good luck to any unionist party that attempts the slogan “No More Divisive Elections!”
How do you stop a referendum being a weapon for your opponents? Simple: by no longer asking for one. Until now it hasn’t been as straightforward as that, because of a public perception that 2014 set a precedent and that a referendum is the only “proper” way of seeking independence. That will no longer be a problem now that the public have clearly seen that the London authorities themselves have made a referendum impossible – and it’s vital that we hold the line that today’s decision is essentially permanent.
The glorious irony is that we’ll probably now see unionist politicians trying to gradually resurrect the prospect of a referendum, to give themselves back the power of saying “no”. They’ll argue that a referendum is the only legitimate way of bringing about independence, and when the people of Scotland start laughing and pointing and issuing gentle reminders that it was unionists themselves that made a referendum illegal, they’ll probably start muttering about how the UK is still a voluntary union and that a referendum is still absolutely possible but not just yet, dears. It’s utterly essential that we give no succour at all to that narrative – from now on we have no interest in referendums, and we’re trying to achieve independence through elections alone. We used to think referendums were a splendid idea but the Supreme Court said they were illegal, so we moved on.
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My summary of the ruling this morning was of course a caricature, but I think it’s fair to say it wasn’t all that an extreme a caricature, because some aspects of the Supreme Court’s reasoning seemed perverse to the point of being almost risible. For example, there seemed to be an implicit acknowledgement that there is a right in international law to democratic self-determination, and that domestic courts are required to take heed of that right. But the argument was that Scotland is totally excluded from that right because it is not a colony or an oppressed people.
This is a court that has talked a great deal about “the plain meaning of words”, but it doesn’t seem to have occurred to the judges that by far the plainest meaning of the term “colony” is any well-defined territory which is denied the right to determine its own future. It’s almost the perfect contradiction – the ruling itself destroyed the premise on which the ruling was founded.
Similarly, if self-determination only applies to the oppressed, who can possibly adjudicate (short of the invasion of a foreign military) whether the necessary oppression is present, other than the authorities of the oppressive state? The Supreme Court seems to lack the self-awareness to recognise that it has just joined the ranks of countless states across the world that have put themselves on trial on the question of whether they are being a bit oppressive, and to no-one’s surprise at all have found themselves totally innocent on all charges.
Lord Reed tried to absolve himself of any culpability for the outrage against democracy by stressing that the court was only interpreting and applying the law, and was not taking any view on “political” questions such as whether Scotland should be an independent country. But there can hardly be anything much more political than determinations such as “Scots are not a people, Scotland is not oppressed”. Without those highly questionable and entirely subjective perceptions, which just happen to align fully with the UK government’s self-image as non-colonial and non-oppressive, the denial of Scotland’s right to self-determination couldn’t have been sustained within the judges’ own logic. For that reason this was an intensely political ruling.
And Reed really couldn’t have made the court look much more ridiculous when he argued that they couldn’t allow a referendum because a vote in favour of independence might erode the legitimacy of the UK Parliament in ruling Scotland. Well, yes, it is kind of in the nature of democracy that people expect to get what they vote for and become a bit ratty when they don’t, but that’s not a reason for not holding a vote in the first place. It could just as easily be argued that the real erosion of the legitimacy of the UK Parliament in ruling Scotland comes from a court in London haughtily determining that Scotland itself has no say in the matter, and can’t even express an opinion.
