Barrister Gareth Roberts sets out the options available to Nicola Sturgeon following the UK Supreme Court's decision that she cannot hold a second independence referendum without Westminster's approval
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The judgment by the Supreme Court on the issue of a second Scottish independence referendum was emphatic: on the question of whether the bill proposed by the Scottish Parliament to hold a second referendum next October was lawful, the court unanimously declared that it was not. So resolute was its decision, that the judgment was brought forward by three weeks.
The arguments from both sides were straightforward.
The advocate for the Scottish Parliament, Doroth Bain KC, asserted that, as the referendum would be advisory and not binding, it fell within the accepted jurisdictional parameters of the Scottish Parliament.
Meanwhile, Treasury Counsel, Sir James Eadie KC, representing Westminster, argued that the issue of the future of the Union was clearly set out in section 29 of the Scotland Act – which essentially states that legislation concerning the future of the Union is outside the competence of the Scottish Parliament and is a matter reserved for the Westminster Parliament of the United Kingdom.
Any reading of section 29 shows that it clearly sets out the matters which are reserved to Westminster and so the Scottish Parliament's team faced an uphill battle to win their case. Perhaps less predictable, however, was how the Supreme Court would deal with the argument that any referendum brought into being by Scottish parliamentary legislation would not be binding but merely advisory – but on this question as well the judgment was just as decisive, despatching that argument by stating that any attempt to hold even an ‘advisory referendum’ would impact upon the ‘future strength or weakness of the Union’ and was therefore unlawful.
So where does this leave the matter of Scottish independence?
Clearly, there is a significant constituency of support for independence and this fervour is unlikely to be extinguished by the Supreme Court's ruling. As Nicola Sturgeon has said, the issue of Scottish independence is, for her and her supporters, a matter which pertains to the democratic will of the people and, given the electoral success of the SNP, it is difficult to argue against that.
In addition, many would have sympathy with the assertion made by Sturgeon that, as a result of Brexit and the instability of the Conservative Government in Westminster, the political landscape has changed so markedly since the first referendum in 2014 that there is now a legitimate case for allowing the people of Scotland to vote on the matter for a second time.
However, there is one big difference between 2014 and now. In 2014, the Coalition Government in Westminster was content to put the question to the people of Scotland and legislated accordingly. Now, the Conservative Party is a very different beast – content to dismiss Sturgeon as an 'attention-seeker' and repeat the mantra that, as far as it is concerned, the ‘no’ vote in 2014 was the end of the matter.
It clearly isn’t the end of the matter and, barring a sea change in the complexion of Scottish political discourse, the issue of the Union between Scotland and England will rumble on.
The immediate question for Nicola Sturgeon is: what does she do next?
One option might be to go to the European Court of Human Rights. This would be a tricky case for the Scottish Government to bring but it could put its weight behind an individual who wanted to take the Westminster Government on and suggest that the decision to refuse a second referendum is a breach of their human rights.
The problem with this course of action is that the ‘right to self-determination’ isn’t enshrined in the European Convention on Human Rights and so any challenge to the ECHR would have to come under Article 9 (freedom of thought and conscience) or Article 10 (freedom of expression) – and it is difficult to imagine the ECHR making a judgment that could possibly lead to the break-up of an established state based upon an individual’s right to think or express themselves.
Another option would be to simply go ahead with the referendum. A similar course of action was pursued by the Government of Catalonia in 2017, which led to the Spanish federal police breaking up the referendum and the Catalan Prime Minister in jail.
Although it is difficult to imagine the Westminster Conservative Government being as heavy-handed, it isn’t difficult to imagine Westminster punishing Holyrood by withholding funding, which could bring the Scottish economy to its knees – an equally unpalatable prospect for Sturgeon.
Perhaps the more realistic plan would be a three-pronged campaign. This would involve a continued process of lobbying within the International Court of Justice in the Hague, and perhaps bringing a case before it on the right of the people of Scotland to self-determination.
Secondly, as Sturgeon has already said, a continuation of the ‘Yes’ campaign by making the next general election a single issue election about the Union would strengthen the hand of the nationalists.
There would also have to be an accommodation reached with Labour. The Conservatives will always seek to block any prospect of the break-up of the Union but Labour – especially if the polls narrow – could realise that, if it is to form a government, it may need the support of the SNP and that a second referendum might be a price worth paying.
The SNP will be licking its wounds while the people of Scotland will be bracing themselves for further political gridlock between London and Edinburgh. But the reality is that, if Scottish nationalists are going to prevail in their desire to take Scotland out of the United Kingdom, they must now devise new and imaginative ways to argue their case – and win new international audiences over to their cause.
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