The Supreme Court of the United Kingdom, like a quarter of a century ago its Canadian counterpart, may have given a final blow to the Scottish independence movement on Wednesday.
By declaring that there is no right to self-determination for Scots in the self-governing Parliament in Edinburgh without the right of veto from the Parliament in London, British lawyers are blocking the momentum of the troops of Prime Minister Nicola Sturgeon .
The precedent of September 2014 – a referendum on independence on terms agreed in advance by the two parties, at the time lost by a score of 55-45 – is closing like a trap on the Scottish separatists.
The Prime Minister, dismissed by this court judgment, had a rather resigned and legalistic reaction. She said in essence: “I’m disappointed, but at least it’s clear”, adding that “the UK as a willing partnership of nations […] no longer exists, if it ever existed in the UK”.
In vain she added that “the arguments [sur la nécessité de l’indépendance] are more compelling and urgent than ever”, the proposed solution – a referendum election – is not convincing.
Mme Sturgeon has indeed said that he wants to turn the next general election into a referendum. Is this bet playable?
An election — even decreed a “referendum” de facto — has more intertwined issues than a simple referendum. We vote on the personalities, on different aspects of the respective programs, we put forward our various aspirations at the time of choice…
Besides, it’s not a one-on-one game. There are currently five parties represented in the Edinburgh Parliament, two of which declare themselves independentists: the SNP (the Scottish National Party of Mme Sturgeon) and the Scottish Greens. In the last election on May 6, 2021, they together obtained 49% of the votes and 56% of the seats.
Curiously (seen from Quebec), it was the “general” election — here we would say “federal” — that Mme Sturgeon wants to turn into a referendum, not the one in the Parliament of Edinburgh.
In the British Parliament, 59 seats out of 650 represent Scotland. Following the December 2019 general election (in which Boris Johnson’s Conservatives triumphed across the country), Scotland awarded the first-past-the-post system 48 out of 59 MPs to the Scottish National Party, therefore more than 80% of the seats… but with 45% of the votes.
Mme Sturgeon also seemed to say, following the judgment, that the objective would be to obtain a majority in seats… but also a majority in votes. There will no doubt be big discussions at the SNP on this…
However, like the Parti Québécois and the Bloc Québécois in their best years, and like the independence parties in Catalonia, the SNP has already approached 50% of the votes cast… but has never reached or exceeded them.
Independence support polls are on the edge, with Scotland split into two roughly equal halves. That of October 4 in the daily newspaper The Scotsman gave 45% for “yes” and 46% for “no” (Scottish pollsters do not break down abstentions and refusals to answer).
In the wake of Brexit, there had however been a clear surge of the “yes” which obtained, in 2019 and 2020, up to 10 points in advance. It was the post-Brexit backlash, because Scottish independence is also a bias for the European Union. Here, separatism is combined with a “Give us back Europe!” In 2016, Scots voted 62% against Brexit, into which they were dragged against their will — something that many feel badly about.
In recent months, we have observed a decline in the “Yes” vote. A combination of economic concern (Scotland is not immune to the serious British crisis) and weariness in the face of an effective “hard line” from London… which is now confirmed by this judgment of the Supreme Court.
The judgment is 34 pages. In very formal and legal language, we begin by recalling that there was a precedent, that of 2014, and that this precedent stemmed from a prior agreement between London and Edinburgh.
The then British Prime Minister, David Cameron, and the Scottish leader Alex Salmond had agreed on the date, on the wording of the question (“Should Scotland become an independent country?”), on the subsequent recognition of a “Yes” by London, from 50% plus one.
But in terms of Edinburgh having a unilateral right to repeat the exercise today, that’s nah. The 2014 precedent applies only on the express condition of a prior agreement from London.
Towards the end of the text appears a (rather long) reference to the 1998 reference to the Supreme Court of Ottawa, on “the secession of Quebec”. And they willingly repeat the argument, already used at the time in Canada, saying — in essence — that there is not a level of colonialism or oppression that could justify a unilateral right to self-determination for the Scots.
In Scotland, as in Catalonia and Quebec, the prospects of the separatists, which once seemed promising, have darkened considerably in recent times, with effective “backlashes”.
François Brousseau is an international business analyst at Ici Radio-Canada. [email protected]