Supreme Court ruling is good news for nationalists

For those who believe in independence, this is an unambiguously good thing. Think about it: in the last 25 years we have witnessed one successful movement for constitutional change and two unsuccessful moments of attempted change. Is the lesson not clear? Long-term movements are likely to enjoy far greater success than one-off decisions.

The successful movement I am referring to is devolution. I do not mean, of course, that everything attempted by our various devolved administrations has been a triumph. I mean, rather, that devolution has become such an established and entrenched feature of our constitutional landscape that more than nine Scots out of every ten would vote to keep it. No serious political party campaigns to reverse or abolish it. Devolution is here to stay.

In contrast, the 2014 indyref and the 2016 Brexit referendum have been relative failures. The former manifestly failed to settle Scotland’s constitutional question – it did not even come close to achieving that objective.

Meanwhile, the latter has bequeathed only uncertainty and confusion about the UK’s future trading relations with the European Union. When asked to identify discrete benefits Brexit has delivered, even UK Government ministers struggle to come up with a compelling answer.

Supporters of independence have expended far too much energy of late on trying to get another referendum and have devoted far too little attention to what they would actually do with independence, once they got it, to ensure it worked and, like devolution, became so widely accepted that no one would think of seeking to reverse it.

The contrast, between devolution on the one hand and the indyref and Brexit on the other, can be readily explained. It has a great deal to do with how each was delivered.

Devolution happened because a long campaign for home rule culminated in an overwhelming sense that it had become Scotland’s settled will. The 1997 devolution referendum merely confirmed what everyone already knew.

This is a case study in how to deliver and achieve enduring constitutional change. Yet, rather than being followed as a template, it was then abandoned. In its place, a new model emerged, in which referendums would be used not to confirm what we already knew in our bones, but to seek a mandate to make new starts into domains unmapped and futures unknown.

This model has not worked, and we should use last week’s Supreme Court ruling as the occasion to call time on it.

What the Supreme Court decided last week is that the Scottish Parliament has no competence to enact a law triggering a second independence referendum. Unless and until Westminster agrees to amend Holyrood’s law-making competence, there is going to be no second independence referendum.

This is a good outcome for us all, whatever our constitutional preferences for Scotland’s future. It is a good result for unionists, who did not enjoy the first independence referendum and who dreaded the division and rancour which a second would once again have stirred up.

But it is an even better outcome for nationalists – or, at least, for nationalists who care not only that Scotland becomes independent but also that it should thereafter make a success of independence.

Imagine for a moment that the Supreme Court had gone the other way, and had ruled that Holyrood could legislate for indyref2. Imagine indyref2 taking place in 2023, with the Yes side winning as narrowly as the Brexiteers won in 2016. With half the country fervently against them, how could the nationalists then have made a success of independence?

It does not matter how prepared the proponents of independence think they are: independence will be a great deal harder to make a success of than Brexit ever was (and yet look what a mess has been made of that).

Indeed, winning 50%+1 in a one-off vote held on a day chosen more or less at random, is such a lousy means of measuring a country’s settled will that it is a wonder we ever went down that path at all.

I want Scotland to be a success. My preference is still (as it always has been) for Scotland to remain part of the UK. But if, one day, Scotland becomes an independent state, I will still want Scotland to be a success.

As a country we are much more likely to be able to make a success of it –should it ever come – if independence is born out of a sense on both sides of the argument that it really has become the settled will of the Scottish people.

That was never likely to occur by way of referendum. Rather, what it requires is years of painstaking work to persuade Scots that our country will be more prosperous, better served, more open and democratic, and better able to face the challenges and risks of the future, if we are a small independent country than if we continue as part of the United Kingdom. There is a template here –for this is exactly what the campaign for home rule achieved a generation ago.

Contrary to what Nicola Sturgeon has been saying since last week’s ruling, none of this is an affront to Scottish democracy. Indeed, it is its very reaffirmation.

Scotland will become independent if – and only if – that ever becomes the clearly and constantly expressed, settled will of the Scottish people.

We will all know if independence does ever become the settled will of the Scottish people, just as we knew in the 1990s that home rule had become Scotland’s settled will.

If, should that time come, we then need a referendum to confirm what we already know in our bones, so be it. Until then, however, now really is not the time.

Adam Tomkins is the John Millar Professor of Public Law at the University of Glasgow School of Law. He was a Conservative MSP for the Glasgow region from 2016 to 2021

From November 21 to November 30 2022 the Herald is running a Black Friday subscription offer which provides full access to our unrivalled coverage of news that matters for just £1. To find out more visit: heraldscotland.com/subscribe

Read more by Adam Tomkins:

• The Tories are toast. Sunak and Hunt can't save them now
• The Bill of Rights Bill is back – but it won't help the Tories one bit
• Is our society really as inclusive as we think?