The United Kingdom’s Supreme Court ruling has extinguished, at least for the moment, the hopes of the Scottish National Party to conduct later next year a “consultative plebiscite” — a non-binding referendum on whether Scotland should be an independent nation. The highest court squashed two claims made by the Scottish government: first, that the consultative aspect of the referendum implied that it would have no constitutional consequences and fell entirely within the legal scope of devolved powers, and second, that it carried legitimacy under international law, which permits democratic expressions of the right to national self-determination. The court argued that the devolved Parliament in Holyrood did not essentially have the power to authorise a second referendum on independence — the first being in 2014 — unless the Westminster Parliament agreed it could do so — which, unsurprisingly, in the climate of political uncertainty, it has not blessed. Further, the U.K. Supreme Court has posited, the SNP’s draft bill for the referendum would likely have constitutional ramifications. Second, the court found that Scotland’s position vis-à-vis the U.K. was not comparable to the scenario of a sub-national region occupied by a malign foreign power, subject to exploitative colonial control and refused the right to democratic representation of collective will. Given that this basic standard for making claims to independence under international law could not be met, in the eyes of the top court, it was not possible now for such deliberations to reach beyond the borders.
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One thing is clear: SNP leader and First Minister of Scotland, Nicola Sturgeon, “is not an extremist”. While recognising that the Scottish government will have to abide by the court’s ruling, she has however said that she wants the next U.K. general election to be a “de facto referendum” on independence, based on the plan for the SNP to make it a single-issue campaign, not dramatically different from the U.K.’s Conservative Party interpreting several elections as referendums on Brexit. There are two related issues with this framing. First, the political space for Scottish voters to express their preferences on issues other than whether Scotland ought to be independent would have disappeared, and that is not good for substantive democracy. Second, if the SNP is using the independence referendum issue to divert attention from its performance in government as an incumbent (administration of public services including the NHS and the regional economy), then that too does not help the cause of good governance in Scotland. Westminster would be wise to do more to win over Scottish hearts and minds, instead of relying on the harder route of judicial and political vetoes on referendums.
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