The Supreme Court will hand down its judgment in the Scottish independence referendum case next Wednesday. This is the reference brought by the Lord Advocate, Scotland’s most senior law officer, over Nicola Sturgeon’s proposed Scottish Independence Referendum Bill.
Downing Street has refused to grant a re-run of the 2014 referendum, in which Scots voted to remain part of the United Kingdom. Sturgeon has said her government will simply hold a referendum of its own. Going to the Supreme Court is a political move, and presumably reflects Sturgeon’s suspicion that Holyrood holding a referendum in defiance of Westminster is unlawful.
The issues before the justices are threefold. One, whether this is a ‘devolution issue’. If it’s not, it is outside the Court’s jurisdiction. Second, whether the Court ought to exercise its inherent discretion to decline making a ruling. Third, whether Sturgeon’s proposed referendum Bill relates to ‘the Union of the Kingdoms of Scotland and England’ or ‘the Parliament of the United Kingdom’, which are reserved to Westminster under the 1998 Act.
The nuclear outcome would be if the justices decide the referendum Bill falls within Holyrood’s powers. It wouldn’t mean Westminster would have to allow a referendum. MPs could amend the Scotland Act to explicitly reserve these matters to Westminster. Even if Downing Street was prepared to face up to the confrontation that would bring in Scotland, the Court would have struck a grievous blow to the underlying principle of devolution.
Remember that devolution was sold to the electorate on the basis that ‘the Union will be strengthened and the threat of separatism removed’. If Holyrood can unilaterally hold referendums on independence, then devolution has undermined the Union and handed separatists the tools to finish it off.
The Court could also decide there is no case to answer because there is no Bill currently before Holyrood. Or it could say the constitution is reserved and this bars Holyrood from holding independence referendums without a green light from parliament. However, neither of these outcomes would represent a victory. In fact, I would go as far as to say Nicola Sturgeon won the moment the reference went to the Supreme Court.
Devolution was not federalism and was not intended to divide sovereignty between Westminster and Holyrood. It was certainly not set up in order to make it easier for the SNP to dismantle the United Kingdom. So the very fact there is a question mark hanging over these matters is damning. The Tories opposed devolution at the time but have spent the past 12 years alternately expanding it and ignoring the ongoing constitutional crisis it has created.
There is no will for reform. No urgency over a Scottish government that behaves as though already independent, including by operating its own foreign policy. No clue what to do other than adopt the SNP’s own once-in-a-generation test and hope no one notices when a generation has passed. This neglect of Scotland mirrors the neglect of Northern Ireland. In both cases, it seems like ministers proceed from the view that these are political problems to be avoided or, at worst, managed, rather than integral parts of the United Kingdom.
It is not a charge I level lightly because it is so often made by nationalists and other demagogues but I’m afraid it’s the conclusion I’ve come to. There is a patriotism deficit at the heart of Downing Street and Whitehall. Not every minister, not every special adviser, not every civil servant, but altogether too many of them, regard the potential dissolution of the United Kingdom not with existential dread or reinvigorating determination but with the minor frustration you might feel at the closure of your local post office.
Whatever the Supreme Court decides next week, the SNP has already won this battle because, in engineering it, the nationalists again demonstrated just how weak and neglectful this government is of the constitutional sovereignty and territorial integrity of the UK. The conflict between Nicola Sturgeon and Rishi Sunak, between the Scottish government and the UK government, is a battle of individual wills but, above all, a battle of national wills.
I can’t tell you who will be the eventual winner. I can only tell you this: one side believes in its cause and the other doesn’t have one.