Last week, the U.K. Supreme Court convened to deliver a make-or-break ruling on the constitutional future of the United Kingdom, and its decision was unanimous and emphatic: Scotland’s semi-autonomous Parliament in Holyrood does not have the legal authority to hold an independence referendum without the consent of the Parliament in Westminster.
The verdict sparked an instant political response. British Prime Minister Rishi Sunak told the House of Commons that the judges’ position was “definitive” and that the Scots should ditch their obsession with separation and focus on other concerns. His pleas were not heard in Scotland, where protesters gathered in numerous cities and towns the day of the ruling. Their message was clear: Scottish democracy is under attack, and the union between Scotland and England—a supposedly consensual partnership between equals—has become a political snare.
Scottish voters held a referendum on independence just eight years ago, resulting in a margin of 55 percent against to 45 percent in favor—but the U.K. vote to leave the European Union two years later fueled fresh debate over the issue in pro-EU Scotland. The Nov. 23 ruling was not unexpected: Few legal commentators thought the U.K. Supreme Court would hand Scottish nationalists a constitutional mechanism to end the British state. But it has nonetheless raised far-reaching questions for the Scottish National Party (SNP), which may quickly find itself forced to refashion both its own electoral strategy and the Scottish independence movement itself.
Last week, the U.K. Supreme Court convened to deliver a make-or-break ruling on the constitutional future of the United Kingdom, and its decision was unanimous and emphatic: Scotland’s semi-autonomous Parliament in Holyrood does not have the legal authority to hold an independence referendum without the consent of the Parliament in Westminster.
The verdict sparked an instant political response. British Prime Minister Rishi Sunak told the House of Commons that the judges’ position was “definitive” and that the Scots should ditch their obsession with separation and focus on other concerns. His pleas were not heard in Scotland, where protesters gathered in numerous cities and towns the day of the ruling. Their message was clear: Scottish democracy is under attack, and the union between Scotland and England—a supposedly consensual partnership between equals—has become a political snare.
Scottish voters held a referendum on independence just eight years ago, resulting in a margin of 55 percent against to 45 percent in favor—but the U.K. vote to leave the European Union two years later fueled fresh debate over the issue in pro-EU Scotland. The Nov. 23 ruling was not unexpected: Few legal commentators thought the U.K. Supreme Court would hand Scottish nationalists a constitutional mechanism to end the British state. But it has nonetheless raised far-reaching questions for the Scottish National Party (SNP), which may quickly find itself forced to refashion both its own electoral strategy and the Scottish independence movement itself.
The Supreme Court’s president, Robert Reed, said its decision was rooted in the Scotland Act 1998, which led to the establishment of the Scottish Parliament in Edinburgh the following year. It affirms that any legislative matter related to the constitutional integrity of the United Kingdom is “reserved” to the British House of Commons. An independence referendum, even if held on a nonbinding advisory basis, would have profound consequences for this integrity, Reed concluded. During the 2014 independence referendum, both sides were bound to abide by the result by the terms of the 2012 Edinburgh Agreement, negotiated between then-Scottish First Minister Alex Salmond and then-British Prime Minister David Cameron. When Scots voted to remain part of the United Kingdom, Salmond swiftly conceded and resigned.
Speaking at a press conference in Edinburgh after the verdict was made public, Scottish First Minister Nicola Sturgeon, who leads the SNP, struck a more conciliatory tone than protesters. The ruling was a “hard pill for any supporter of independence, and surely indeed for any supporter of democracy, to swallow,” she said, but her party would accept the decision because it recognized the court’s legitimacy. If Scotland and England couldn’t settle the independence question through a mutually agreed and binding referendum, the SNP would “find another democratic, lawful means for Scottish people to express their will,” she added.
It’s hard to see where the Scottish independence movement—the dominant force in Scottish politics for the past decade—goes from here. Through Scotland’s top law officer, Sturgeon herself requested that the court rule on the viability of a fresh independence poll organized by Holyrood. She argued there was a need for clarity regarding the distribution of constitutional powers in the United Kingdom given Westminster’s unbending opposition to another vote. Now that clarity has been established, the extent of Scotland’s impotence within the union has become clear.
As of Nov. 23, the currently established legal pathways to Scottish sovereignty all run through Westminster. There will be no second independence referendum without the support of a majority of British members of Parliament, which radically narrows the SNP’s political options. Scotland elects just 59 of Westminster’s 650 members of Parliament; voters in England, 533. A shift in the balance of parliamentary power isn’t likely to change anything either. The incumbent Tories are implacable in their opposition to Scottish separatism, and Labour Party leader Keir Starmer—who polls show is very likely to be the next British prime minister—has also ruled out a new vote.
Following last week’s ruling, Sturgeon quickly pivoted to her Plan C strategy for advancing the independence cause. The next British general election, scheduled to take place before January 2025, will be framed as a “de facto plebiscite” on Scotland’s secession from the union. If the SNP and other smaller pro-independence parties, such as the Scottish Greens, secure more than 50 percent of all votes cast in Scotland, then they will have a mandate for its exit from the union, she said. (In the last U.K. general election, the SNP increased its vote share in Scotland by 8.1 percent.) But it’s unclear how Sturgeon’s putative mandate would work without a legal route. The SNP will hold an emergency party conference next year to clarify details.
This scenario is still fraught with difficulties. Britain’s unionist parties—Labour, the Conservatives, and the Liberal Democrats—would reject the SNP’s framing, arguing that elections aren’t supposed to be fought over a single issue but rather serve to canvass voters’ views on a range of domestic policy concerns. Moreover, even if a makeshift nationalist coalition managed to win a majority of Scottish votes, the next U.K. government would not be obligated to open discussions with Edinburgh over independence. A positive result for Sturgeon would change nothing: The SNP would demand independence, and Westminster would reject that demand—as both former British Prime Minister Boris Johnson and his predecessor, Theresa May, did as leaders.
However, the fading of the independence campaign’s prospects won’t automatically lead to the collapse of the SNP, which has held power at Holyrood since 2007 and was reelected last year. The party was on the losing side of Scotland’s first independence referendum in September 2014, but it went on to reap the resulting electoral rewards. During the 2015 U.K. general election, “yes” voters flooded to the SNP’s banner, resulting in it winning 56 of 59 seats in Scotland. Years later, it is still Scotland’s most popular political party, drawing support not just from traditional nationalists but also from supporters of Scotland’s reentry into the EU. With independence seemingly off the table, the SNP may gradually moderate its ambitions and begin pushing for a more autonomous Scottish Parliament inside the United Kingdom rather than full-blown political divorce.
The SNP is already hinting at such a shift. On the evening of Nov. 23, as temperatures dipped across Scotland, Sturgeon spoke at a rally outside the Holyrood Parliament. She said the United Kingdom was no longer a voluntary partnership, and the independence movement must consider itself a “democracy movement” dedicated to shielding Edinburgh’s political autonomy from Westminster. Of course, democracy is a nebulous concept in a way that independence isn’t. The rhetoric of Scottish democracy could be applied to a variety of distinct constitutional settlements, including home rule within the United Kingdom—a variation of the dominion status policy the party advocated when it was first established in the 1930s.
Scottish home rule could mean the transfer of additional powers—over taxation, borrowing, and social security, for example—from London to Edinburgh and a formal acknowledgement of Scotland’s quasi-federal status within the United Kingdom. The SNP would not ditch its commitment to independence; it would still publicly press the case for Scottish sovereignty from Westminster’s rule. But there would be underlying recognition among Scottish nationalists that the breakup of Britain was no longer imminent.
There is no disguising the significance of last week’s U.K. Supreme Court ruling. For now, it is almost impossible to see how the SNP achieves its independence dream. As if to underline Scotland’s newly subordinate status, Alister Jack, the Conservative secretary of state for Scotland at Westminster, said the day of the ruling that the prime minister’s office would consent to a new referendum “when there is consensus between governments, across political parties, and across civic Scotland, as there was in 2014.” The problem for Scottish nationalists is that such a consensus may never arrive; per the new ruling, only Westminster can decide when it has.
On one level, Sturgeon is right: This is an insidious position for any democratic country to find itself in. But for the foreseeable future, there is precious little she or anyone else can do about it.
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