A SUPREME Court ruling that Holyrood does not have the power to hold a referendum could boost support for independence by showing the UK Government believes Scotland is a “pretend” nation, according to a former UK civil servant who helped negotiate the 2014 vote.
Ciaran Martin, professor at the Blavatnik School of Government at Oxford University, said while Unionists are “busy denouncing” the Scottish Government’s plans, they are paying less attention to the political consequences of the court’s decision.
He also said critics of the route map unveiled by Nicola Sturgeon have avoided discussing what she is supposed to do when the UK Government refuses to engage in a process to allow a referendum to take place.
Scotland has been left in a constitutional “no man’s land”, with the message from London to “go and crawl under a rock till the end of the 2030s, at least”, he added.
Lord advocate Dorothy Bain QC has asked the Supreme Court to rule on whether Sturgeon has the legal powers to stage a referendum without the UK Government’s authority.
Writing in a blog for the think tank UK In A Changing Europe, Martin said even a win in the Supreme Court for Sturgeon’s referendum bill would not necessarily deliver independence.
He said Westminster could change the law to make a vote unlawful or refuse to act on the result in advance and could also ignore a successful “de facto” referendum as nothing would compel independence negotiations to begin.
But he argued what was more likely is the court will rule that Scotland is “not really a nation” and “part of unitary state, not a voluntary union that one party can leave.”
Martin wrote: “Unionists are busy denouncing the ‘pretend’ referendum of the Scottish Government. They are paying less attention to the political consequences of a Supreme Court ruling – on the basis of UK Government arguments – that Scotland is, in law at least, a ‘pretend’ nation.”
He highlights the ongoing legal challenge to the Northern Ireland protocol, with court decisions that the post-Brexit trading arrangement is lawful being appealed.
Martin said, as expected, so far, the Unionists have lost, but the process “elicited the politically incendiary ruling that the Protocol has effectively repealed part of the Union” around trading rights.
He added: “That ruling significantly intensified Unionist opposition to the Protocol. Will a constitutional showdown over an independence referendum yield a similarly politically toxic conclusion?”
Martin also outlined a “constitutional no man’s land” that Scotland is in, saying the same threshold that triggered a referendum following the Holyrood vote in 2011, has been rejected following the 2021 election.
“But no alternative threshold has been formally given; the Secretary of State for Scotland and the Prime Minister have ad-libbed about various triggers in public appearances, with the earliest allowable dates ranging from 2039 to 2055,” he wrote.
“In effect, the message from London is to go and crawl under a rock till the end of the 2030s, at least.”
Martin added that even winning a “de facto” referendum would only secure “political bragging rights and the perceived right to exert more powerful political pressure”.
If the “gamble” over a referendum bill fails, it could be assumed the prospect of indyref2 would be “off the table” for the rest of the decade.
Martin concluded: “But therein lies a longer-term strategic threat to the United Kingdom; polls consistently show a strong lead for independence among younger Scots. Deferring a second plebiscite into the 2030s might ultimately benefit those who currently affect to object most to that delay.”
