The 2014 Scottish independence referendum took place because British Conservative Prime Minister David Cameron calculated — correctly — that this exercise in democracy would carry acceptable risk: most Scots would vote to remain in Britain. The alternative was to keep denying Scotland a referendum and have independence sentiment rise in reaction to British recalcitrance.
For Cameron, the political justification for the referendum was the pro-independence majority of the Scottish National Party (SNP) in Holyrood (the Scottish parliament).
To guarantee its legality, Cameron reached an agreement in 2012 with SNP first minister Alex Salmond to temporarily amend the Scotland Act that in 1998 had devolved powers from Westminster to a new Scottish parliament and government.
Their agreement specified that the referendum did not affect any “reserved matters” — Westminster government prerogatives out of bounds to Scottish institutions.
This path to exercising the Scottish right to determine the country’s relation to Britain then became a precedent to which other stateless nations in Europe — such as the Basques, Catalans, Corsicans, Welsh and Bretons — would persistently appeal.
By the same token, Cameron’s decision was deeply troubling for Spanish nationalism, for whose parties Spanish state unity takes precedence over any democratic principle. Mariano Rajoy, then-PM for the conservative People’s Party, said: “I cannot accept that the existence of my country should be submitted to referendum.”
For Catalan and Basque independentism, the Cameron-Salmond agreement confirmed the superiority of British democracy over its Spanish counterpart. Cameron had acknowledged the principle of national self-determination and established a way to exercise it.
Brexit
Next, however, came the 2016 Brexit referendum, with a majority in Scotland voting to remain in the European Union. The 2014 independence referendum’s 55.3% to 44.7% unionist majority has been fraying in opinion polling since then, with support for independence at times leading by ten percentage points or more.
In that context, four Tory PMs — Teresa May, Boris Johnson, Liz Truss and Rishi Sunak — all in turn stated that a second Scottish independence referendum was excluded, despite the pro-independence parties (the SNP and the Scottish Greens) increasing their majority in Holyrood (presently at 72 seats out of 129).
Nine months after the Brexit vote, Scottish first minister Nicola Sturgeon applied for a second independence referendum to be held under the same legal condition as the first, and the enabling bill was later drafted for the Scottish parliament.
The British government now contended that this draft, almost a photocopy of the 2014 bill, would affect a “reserved matter”. That led the Scottish government’s senior law officer, Dorothy Bain, to ask the British Supreme Court to rule on the issue at Sturgeon’s request, after Sturgeon had announced October 19 next year as her preferred referendum date.
The question before the Supreme Court’s five law lords was therefore: would the referendum-enabling bill, legal in 2014, be illegal if the British government was now unwilling to modify the Scotland Act?
Bain argued that it wouldn’t because the vote would be consultative and not have any immediate consequences. Independence would be achieved through lengthy negotiations, as with Brexit.
The court was unconvinced. The judges’ unanimous answer was that if the British government and parliament were unwilling to modify the “reserved matters”, then “the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence”, because “measures which question the integrity of the United Kingdom [are] reserved”.
Unoppressed Scots
That was the ruling’s purely legal aspect, but the court also heard SNP counsel argue that Britain’s recognition of United Nations covenants on the right to self-determination means its domestic law had to be interpreted in line with this international obligation.
The judges found two “insuperable obstacles in the path of the … argument based on self-determination”.
First, like the Quebecois people subject to a Canadian Supreme Court ruling in 1998, Scotland “does not meet the threshold of a colonial people or an oppressed people”.
Second, as Britain argued to the International Court of Justice in the case of Kosovo in 2008, “international law favours the territorial integrity of States. Outside the context of self-determination, normally limited to situations of colonial type or those involving foreign occupation, it does not concede any ‘right to secede’".
In short, for five British judges the right to self-determination doesn’t apply in states where no group of citizens suffer discrimination in law or blatant oppression as a people. That criterion would eliminate any right to self-determination for all stateless nations in the European Union.
Reactions — independentists
Sturgeon summed up the meaning of the ruling: “A law that doesn’t allow Scotland to choose our own future without Westminster consent exposes the UK as ‘voluntary union’ as a myth.”
Scottish Greens leader Patrick Harvie said: “It’s very clear to me that the longer the British government simply dig their heels in, the longer they rely on their only argument which is to say ‘No, you can’t’, the more determined the people of Scotland will be to say ‘Yes, we will’.”
Former SNP leader Salmond, now head of the Alba Party, directed his fire at the SNP leadership: “[T]he Scottish Parliament should have passed the legislation for an independence referendum and forced the UK Government to be the ones that challenged it. Real parliaments don’t ask for permission to implement their democratic mandate.
“The Scottish Government now has the responsibility to find a way forward,” he said. “They have led the national movement down a complete blind alley to the Supreme Court, which astonishingly has gone as far as rejecting Scotland’s right of self-determination.
“That’s what happens when you go to the wrong court with the wrong question.”
The Radical Independence Campaign statement on the ruling called for protest action: “It is now time for a mass independence movement to mount the most effective challenge possible to the present Conservative UK government, not just on its undemocratic blocking of an independence referendum but also on its right-wing economic policies and their devastating impact on Scotland’s people, which need to be opposed in the here and now not just in the future.”
Reactions — unionists
Britain’s two main parties, the ruling Conservatives and Labour, both welcomed what Prime Minister Rishi Sunak called the “clear and definitive ruling”. Both projected it as disposing with an annoying distraction from people’s “real concerns”.
Sunak said: “The people of Scotland want us to be working on fixing the major challenges that we collectively face, whether that’s the economy, supporting the National Health Service or indeed supporting Ukraine.”
Scottish Labour leader Anas Sarwar said that “there is not a majority in Scotland for a referendum or independence. The Supreme Court’s answer was clear, and I thank them for their speedy work in this case.
“We must now focus on the problems facing our country, from rising bills to the crisis in our NHS.”
Before the ruling, British Labour leader Keir Starmer told the BBC that even if the judges found the referendum enabling bill to be legal, he would oppose a second referendum on political grounds.
Afterwards, a Starmer spokesperson ruled out conceding a second Scottish independence referendum after the next British election to achieve a Labour government. “There will be no deals going into the election, no deals coming out of the election,” the spokesperson said.
The law lords’ decision ends British exceptionalism on the right of nations to self-determination. It lands Scotland, Wales and Northern Ireland in the same boat as Catalonia, Corsica and the Basque Country: the right of stateless nations to decide their future is “illegal” or judges can be found to so rule.
As a result, the politics of the Scottish independence struggle may well soon resemble those of Catalonia. Thwarted in her attempt to achieve an agreed referendum (as in Catalonia from 2010–15), Sturgeon is projecting the next British general election in Scotland as a referendum substitute (as with the Together for Yes campaign in Catalonia in 2015).
If pro-independence forces repeat their massive 2019 win in Scotland (48 out of 59 seats) and whichever party wins government in Westminster refuses to accept this result as a proper referendum, what would be the next step?
A Scottish version of Catalonia’s October 1, 2017, “illegal” referendum, complete with repression?
[Dick Nichols is Green Left’s European correspondent, based in Barcelona.]