What’s next for the independence of Scotland

On the 23^rd of November the UK Supreme Court ruled unanimously against the possibility for the Scottish parliament to hold a new independence referendum, that was planned to take place in October 2023, without prior approval from the UK government. The court highlighted that the Scottish parliament does not have the power to legislate on independence because it pertains to aspects of the constitution linked to the future of the Union, thus being a matter reserved to UK. Therefore, with London denying an agreed referendum and the Supreme Court dismissing the possibility for Scotland to hold its own, what would it happen next?

The judgement of the Supreme Court is not surprising: section 29(1) of the Scotland Act 1998 states that every act pertaining to reserved matters falls beyond the legislative competence of the Scottish Parliament, thus being null and void. In 2014 competence to hold an independence referendum was temporarily guaranteed to the Scottish parliament through a Section 30 order, thanks to an agreement between England and Scotland in light of the significant SNP electoral victory. The Edinburgh Agreement between the two governments represented a political success for Scotland, being a compromise between demands of self-determination and the uncertainty about the power of its parliament to unilaterally claim independence. In 2014 the ‘No’ side won with 55% of votes because it prevailed the fear that an independent Scotland would not have an expeditious path to join the EU and that the social welfare linked to the UK pension system would be diminished. In the aftermath of the 2014 failure, David Cameron announced that it was once in a generation decision; however, things have profoundly changed in eight years, especially when considering Brexit that forced Scotland out of the EU notwithstanding that the 63% of Scottish citizens voted against it.

From the legal perspective, those in favour of Scottish independence were stressing the fact that, although having a pivotal political meaning, the referendum is consultative thus not legally binding upon any legislator, not possessing any direct legal effect on the Scotland’s status within the UK. However, the Supreme Court argued that it would have practical consequences because, by being a democratic expression of the view of Scottish electors, it would ‘either strengthen or weaken the democratic legitimacy of the union’. In the end, the UK Supreme Court rejected instances pertaining to the right to self-determination, citing an old 1998 Canadian case that states that this right is protected under international law only as far as it concerns former colonies, military occupations, or situations when a definable group is denied meaningful access to government. However, this interpretation excludes an important aspect of the right, namely the principle that peoples have the right to auto-determine their political faith through a government that represents their interests (that in this case would for example have meant remaining within the EU), and stands against previous positions supported by the UK government at the international level undermining its credibility. For what concerns Scotland, the Supreme Court’s view is in contrast with the outcome of the cross-party Smith Commission instituted by former prime minister Cameron in the aftermath of the 2014 referendum, which recognised that people of Scotland have the sovereign right to determine the form of government that best suits their need and leaves a door open in relation of a future independence of Scotland, if its people so choose. [1]

However, due to the fact that nowadays it is not realistic that UK would consent to the referendum, Scottish first minister Sturgeon is looking for another way to get independence, admonishing that London cannot deny democracy in Scotland: she calls for the next UK general elections to be a de facto referendum on independence. She wants to campaigning exclusively on independence, meaning that every vote for the SNP would represent at the nation’s eyes a vote in favour of an exit from the UK; therefore, if the party would obtain more than 50% of the votes, Sturgeon would consider it as the same way as a referendum victory and would open the negotiations with the UK. However, this strategy entails two controversial points: first of all, it is extremely difficult to meet the 50% threshold in multiparty elections, and moreover there are no legal or political guarantees that in case of a successful referendum outcome the UK government would engage in negotiations. As a matter of fact Sturgeon felt compelled to adopt this strategy as a measure of last resort, although she previously casted doubts on this process by describing de facto referendum as a unionist trap.

While showing the limits of devolution settlement, the Supreme Court judgement could have the effect to encourage independence supporters by showing the limits of UK democracy, that appears to lock Scotland into a theoretically voluntary union that has no legally way to unilaterally opt out. The next general elections are planned to take place in December 2024, but the challenges that UK is facing at the international and domestic level are tangible right now: there is a consistent part of the Scottish people that is already trying to democratically express their will to become independent. The gatherings after the issuance of the case verdict demonstrate it, as well as the fact that the major party within the Scottish parliament has been the SNP for so many years. After the death of the Queen, growing instances supporting independence emerged, representing a threat to the existence of the Commonwealth itself: last year Barbados voted for independence, Antigua’s president called for an independence referendum, and other member States like Jamaica and Malaysia may follow this path. In this scenario, the impact that the Scotland independence may have on the stability of the Commonwealth is relevant; however, denying Scottish instances keep increasing and not reducing internal stability of the UK (which is a prerequisite for any effective action in the field of foreign policy) and its notion of voluntary partnership of nations. In the end, throughout elections or a referendum, the Scottish aspiration to independence is an issue that London should try to solve rapidly through bilateral and democratic means within the political arena.

By The European Institute for International Law and International Relations.