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Saturday, December 3, 2022

Scottish independence debate returns from the courts to politics Politics

Wednesday’s Supreme Court ruling has not ended the movement towards Scottish independence, but has sent it back into the arena of electoral politics.

Two high-profile disputes about Scottish independence were set in the Supreme Court of the United Kingdom this week.

The first was a legal case brought by the Scottish Government. It was about whether the Scottish Parliament could legislate for a referendum on Scotland’s independence from the UK.

The Scottish Government lost the case, although the court cautioned that the claim was properly made. The judges unanimously decided that the Scottish Parliament did not have the power to set up such a referendum as that was “reserved” to the UK Parliament in Westminster.

The effect of this decision is that the Scottish Government is now unwilling to hold a referendum without the consent of the UK Government, and this consent will not be granted for the foreseeable future.

And this brings us to the second controversy, which is not about a legal matter but about constitutional first principles. A fundamental question for those in favor of Scottish independence is whether a “legal” or “political” path should be followed.

The legal route is about extending existing legislation so far as it will lead to an independence referendum, and the political route is about seeking and obtaining a mandate in elections for a referendum.

The effect of the Supreme Court’s decision is that the legal route is over. There is no appeal to the Court on this or any other question. There is no buying a legal strategy now.

The political path has won and the court’s decision is likely to strengthen the political campaign for independence. Scottish First Minister Nicola Sturgeon has already said she regards the next general election as a “de facto” referendum on independence.

Sturgeon has also said that she accepts the court’s decision. He is right to do so. The Supreme Court could have come to a different decision, but their application of the Scotland Act to the case was not moot. Judges cannot be blamed when the fault lies with the law itself.

The Supreme Court has confirmed what was previously seen as a basic political truth: strict limits on what the Scottish Parliament and the Scottish government can and cannot do without the consent of the UK government and the Westminster Parliament Huh.

There is no autonomy for Scottish unilateral action on questions of union, despite the rhetoric of Britain being a union of equals. England and English politicians get the veto.

So the Supreme Court has sent the issue back to elected politicians to decide. The holding of an independence referendum is no longer a contest between parties at court, but between political parties in the coming elections.

Wednesday’s decision has not ended the movement towards Scottish independence but has sent it back into the arena of electoral politics. And that was, perhaps, the plan of the Scottish Government.

The views expressed in this article are the author’s own and do not necessarily reflect the editorial position of Al Jazeera.

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