(CN) — In a landmark decision Wednesday, the United Kingdom’s highest court ruled that the Scottish government does not have the power to call a referendum on independence without the approval of the British government.
In a unanimous verdict, the U.K’s Supreme Court rejected the Scottish government’s argument that an advisory referendum, without legal force, was within the scope of the Scottish Parliament’s legislative powers. It ruled that the legitimacy of a referendum would not be “confined to its legal effects, but include its practical effects.”
“A lawfully held referendum would have important political consequences relating to the union and the United Kingdom Parliament,” Judge Robert Reed, the president of the court, said as he delivered the verdict. “Its outcome would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.”
As a result, the court determined that the power to call a referendum on Scottish independence is reserved for the U.K. Parliament.
Scotland previously held an independence referendum in 2014, on that occasion with the consent and agreement of the British government. Scots voted to remain part of the U.K. in a 55% to 45% split. The result was closer than many had expected, including then-British Prime Minister David Cameron, who had allowed the vote on the assumption there would be a bigger unionist majority.
The debate over independence was reignited when the U.K. voted as a whole to leave the European Union. Scotland, in contrast, had voted to remain in the bloc, and Britain’s EU membership was a common reason given for opposing independence in 2014.
The U.K. government now refuses to permit another vote on the matter, arguing the question of independence was settled in 2014. However, Scotland continues to vote for the independence-backing Scottish National Party in large numbers – most recently delivering them just short of a majority in 2021’s Scottish parliamentary elections. When combined with Scottish Green members, pro-independence representatives have a majority in the Scottish Parliament. Polling indicates the Scottish electorate is evenly split on the question of independence.
Scotland’s First Minister Nicola Sturgeon had previously announced a second referendum on independence would be held in October 2023, pending the decision of the U.K. Supreme Court. On Wednesday, she responded to the verdict with disappointment.
“Let’s be blunt: a so-called partnership in which one partner is denied the right to choose a different future – or even to ask itself the question – cannot be described in any way as voluntary or even a partnership at all,” Sturgeon said.
She added, “This is no longer just about whether or not Scotland becomes independent – vital though that decision is. It is now more fundamental – it is now about whether or not we have the basic democratic right to choose our own future.”
Though consequential, the Supreme Court’s ruling was not unexpected. A devolution settlement between the British and Scottish governments is fairly explicit that constitutional matters are exclusively within the purview of the British Parliament. However, the verdict places the ball back in the Scottish National Party’s court.
The SNP has ruled out holding an unauthorized, Catalonia-style referendum. Instead, Sturgeon has said she will turn her party’s campaign in the next general election into a de facto poll on independence. Although the precise details of the party’s proposition are yet to be announced, the assumption is that the SNP will run on the single issue of independence and consider receiving a majority of support as democratic consent to leave the union, regardless of Westminster’s position on the issue.
It is an approach fraught with difficulty, as the day’s events in the House of Commons made clear. The ruling Conservative Party rejected the SNP’s strategy, with Prime Minister Rishi Sunak saying that the government will not accept the view that the next general election is a de facto referendum on secession.
The opposition Labour Party is also opposed to Scottish independence, with leader Keir Starmer making clear that his party would not cut a deal with the SNP on independence in order to enter government after the next election.
The decision to treat a general election campaign as a referendum has no precedent in British politics, and is perhaps the biggest gamble that Sturgeon has taken in her 12 years at the top of Scotland’s government. There is a big enough question mark hanging over whether the SNP could even secure a majority in Scotland’s multi-party political system in the next election. But even if they were to achieve such a result, there seems little chance that unionist politicians would accept this as consent for secession. At that point, it also remains unclear whether the SNP would be willing to go through with a unilateral declaration of independence in the event that their claimed mandate is not recognized.
Up until now the secessionist party has remained strictly within the limits of the law, and the cautious Sturgeon has shown little appetite to provoke a full-blown constitutional confrontation with the British state. However, the outright denial of either political or legal routes to a second referendum on the matter undoubtedly raises the stakes.
The independence movement is today reframing the issue as one of democracy – seeking to capitalize on Scottish distaste of diktats from London – marking a key turning point in the debate.
As former nationalist First Minister Alex Salmond put it: “Although the verdict is hardly a surprise it now begs the question of what is the democratic route for Scots to determine their own future?”
“Unionists should beware in their glee as the lesson of history is that you can postpone democracy but you cannot deny it," Salmond said.
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