Supreme Court rules against Indyref2, what happens next?

The ruling by five justices of the UK Supreme Court to reject the Scottish Government’s attempt to get Holyrood to hold a second independence referendum was expected by most legal experts and political pundits. I even suspect the First Minister in her heart of hearts knew full well what the constitutional position was given it’s crystal clear in the 1998 Scotland Act.

But the political imperative, as always, intervenes.

The Act states a law passed by MSPs is beyond their competence if it “relates to reserved matters,” which include those concerning the constitution, most notably, “the Union of the Kingdoms of Scotland and England”.

Read more: Supreme Court shatters Sturgeon’s plan for Indyref2 next year

Last year, the SNP administration lost a battle at the Supreme Court, which ruled some provisions in two Holyrood Bills were beyond the Scottish Parliament’s legislative competence; that is, they were fundamentally at odds with the Scotland Act as they could impinge on Westminster’s sovereignty by limiting its ability to make laws for Scotland in all areas, including devolved ones.

So, the country’s top judges were making clear MPs could not be constrained, underlining the limits of devolved power, which, of course, antagonises the SNP leadership no end because its aim is have full power in an independent state.

In her submission to the court, Dorothy Bain KC, the Lord Advocate, admitted she did “not have the necessary degree of confidence” that legislation to hold Indyref2 was within Holyrood’s powers. Which clearly indicated something very important.

The Scottish Government argued a referendum would simply be "advisory" and so would seek the views of the people of Scotland on the topic. All referendums are, technically, advisory.

It insisted the vote would have "no legal consequences" and pointed out there would have to be negotiations and legislation at Westminster if a majority of people voting in Indyref2 backed independence.

But the judges referred to the “purpose” and “effect” of any Scottish parliamentary legislation and believed the effect of a Holyrood referendum would be not just a legal exercise but have practical ie political consequences.

The Scottish Government's attempt to hang things on a legalistic technicality was taking people for fools; lawful referendum votes do not take place in a political vacuum. The constitutional weight of a Yes vote would have been unstoppable; any action to the contrary would have been unconscionable.

As the UK Government’s lawyer noted in court a referendum bill would be "self-evidently, squarely and directly about the Union" and it was clear the Scottish Government's intention was "not just to have an opinion poll".

In the cold light of day, it seems Ms Sturgeon acted out of desperation but believing that, in one political sense, she could not lose. Even, as has happened, the judges ruled against her wish, she doubtless thought she could just double-down on the democratic argument and seek to create her own referendum on the UK’s next polling day.

Now the 2019 General Election was described as the “Brexit election” and, indeed, Britain’s decision to leave the EU dominated the campaign but that was because pretty much everyone on all sides of the argument wanted an end to that particular psychodrama.

Not all the parties, however, want to turn the next election into Indyref2; far from it, most do not. Further to that, there is a chunk of the SNP, which does not think it a good idea at all. If there is no general consensus on what the election should be about, how can one party seek to dictate its terms? It can’t.

What I suspect Sturgeon will try to do is to set all the economic arguments, which the next election will undoubtedly be about, simply in the context of Scotland’s future either within or outwith the Union.

However, the FM was once not enamoured by the idea of trying to make a general election into a de facto referendum. Some of her colleagues still aren’t.

Last month, an SNP minister was among those frustrated by the Plan B strategy, which is seen by some as an unnecessary gamble foisted upon the party without discussion or engagement. One senior Nationalist MSP told The Times: “People can see right through it. People know when they feel it - not just when they hear it - and people aren’t feeling it.”

And even Angus Robertson, the Scottish Cabinet Secretary for External Affairs, during a recent media interview seemed less than convinced Indyref2 would happen on Sturgeon’s preferred date of October 19 2023 by saying it would come “at some stage…sooner or later”.

By raising the stakes so high by trying to turn a general election into a single issue referendum, the SNP leader has also raised the prospect that the UKwide poll in two years’ time could become an extremely nasty affair.

One senior Whitehall insider suggested the UK Government wouldn’t go big if the law lords rejected the Scottish Government’s case. But it’s likely to be picked up in the Commons chamber; perhaps, even at PMQs today. Some right-wing Tories may not be able to resist in trying to put the SNP “back in its political box”.

Yet, of course, the Supreme Court ruling will simply entrench opinion even further; as if the political temperature was not high enough already.

Expect a lot of Nationalist ire today. At least 14 pro-independence rallies across Scotland, including one outside Holyrood, were being planned for this afternoon with another five across Europe.

Even if the Scottish Government had won the court’s favour, the UK Government could have simply reasserted its authority and passed another law at Westminster to block Indyref2. Which, of course, would have poured fuel onto the constitutional fire.

So, the constitutional psychodrama goes on but chances are October 19 next year, Sturgeon’s “freedom day,” will now pass uneventfully like any other wet Thursday in autumn. 

*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