Scottish independence was never a matter for the courts

It is testament to the SNP’s tactics that today’s Supreme Court judgment on a Scottish referendum happened at all. Of course, the Scottish parliament doesn’t have the power to call referenda: this was an explicit condition of its creation. Schedule 5, part 1 of the Scotland Act spells out the things Holyrood is not allowed to legislate on: among other things, ‘the Union of the Kingdoms of Scotland and England’ and ‘the parliament of the United Kingdom’. So this was never in question, never a matter for the courts. But Nicola Sturgeon pretended otherwise – the better to rally her troops, who always want to year that battle lies just around the corner. Now that they have restated the law – that she cannot call any such referendum – her job is made harder.

The Supreme Court might well have refused to issue any judgment, saying that its judges are not there to provide commentary on blindingly obvious laws. What the monarch enacts in parliament is law: that’s the UK constitution in a sentence. The 1998 Scotland Act, signed by the Queen, said Holyrood would not be able to use its powers to harangue the population with another referendum. So that’s the end of it. There was never a grey area to clarify.

In fact, the Supreme Court’s wording is perhaps more interesting than its (expected) verdict. Unusually, the SNP was granted permission to join the case as a ‘third party’. Its lawyers tried to argue that Scotland – as a nation – has a right to self-determination under international law. The SNP’s lawyers had cited a case involving Quebec to make the point. But Lord Reed ruled that the right to self-determination only applies to ‘former colonies’ or places that are under ‘foreign militarily occupation’. ‘That is not the position in Scotland’, he said. Quite. But it matters because it will make it harder for the SNP to make this case in other international courts.

In her memoirs, Margaret Thatcher argued that Scots ‘have an undoubted right to national self-determination; thus far they have exercised that right by joining and remaining in the Union’. The 1988 ‘Claim of Right for Scotland’ also made this point. But the Supreme Court has today said that this concept has no legal force in terms of international law. James Mitchell (with whom I once wrote an academic paper on the Barnett Formula) pointed out in 2012 that the claim of right was ‘a political rather than justiciable claim’ to the ‘sovereignty of the Scottish people’. The Supreme Court today backed him.

All told, this is a step back for Sturgeon – but is still convenient for her. She’d probably lose a referendum in the timescale she wants, as she well knows. And like the Quebec separatists, the SNP could not survive a second referendum defeat. Her original post-2014 plan was to hold a vote only when support for separation hit 60 per cent. But despite Brexit, Boris Johnson and more, this support has barely breached 50 per cent (see graph below) and even fewer Scots want a referendum in the next two years – her given timeframe. So Sturgeon is bluffing – and today the Supreme Court has not just called her bluff, but pointed out that there is no legal force to any SNP claim of self-determination. In the great story of Scottish constitutional debate, this is – all told – a pretty big day.