We have to bring Westminster to the table for talks on independence

For those of us who followed the legal argument when the case was heard the writing was on the wall and the scathing comments from Lord Reed and his colleagues about aspects of the drafting of the UNCRC bill were not unexpected.

To understand the implications for the likely fate of a Scottish Parliament bill designed to hold a second independence referendum it is important to understand what the court did and did not say. This involves setting to one side some of the political spin about the judgment although, for some light relief, we should permit ourselves a good laugh at the sanctimonious hypocrisy of the Scottish Tories, who voted for both bills unanimously.

But please let’s not descend into unpleasant ill-advised ethnic condemnation of the court’s judgment. The UKSC is not an “English court”. It’s a UK court, the creature of UK statute. The current president and deputy president are both Scottish judges and well respected. The court’s job was to interpret the devolved settlement. That’s what it did albeit rather conservatively.

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Getting too hung up on that is a pitfall of seeing the strategic route to independence purely through the prism of devolution. We must strive to undo the impression that has been given at home and abroad that a referendum sanctioned by Section 30 is the only legitimate route to independence. Section 30 is a creature of modern statute barely 20 years old and the Union between Scotland and England is more than 300 years old.

Indeed, the lesson of this whole debacle is to lift our eyes above and beyond the shackles of the devolved settlement when looking to Scotland’s constitutional future. It is also a useful reminder that there’s no purely legal route to independence. The route must be a political one in which litigation should be but one strand of a multi-faceted strategy.

But back to the judgment. Whether Holyrood has the power to incorporate the UNCRC and the ECLSG was never in issue. It does. What was in issue was the extent to which the Scottish Parliament could make the courts interpret UK legislation in devolved areas in line with these international treaties. The UKSC has decided that while Holyrood can repeal or amend UK legislation in devolved areas, it cannot put conditions upon the way in which UK legislation is interpreted or applied by the courts, even for devolved areas.

We already knew from the death of the Sewell convention that UK parliamentary legislation will always trump Holyrood, even in the devolved sphere. However, this expansion of the curbs on Holyrood is the result not just of UK parliamentary sovereignty, a doctrine of the British Constitution that was always out of step with Scotland’s constitutional tradition, but a reading of section 28(7) of the Scotland Act, which is even more limiting on the Scottish Parliament’s powers than parliamentary sovereignty.

Many legal commentators are very critical of the judgment and I agree with their criticisms. Mark Elliot, professor of public law at the University of Cambridge, says it’s a narrow reading of the devolution settlement employing unconvincing reasoning. As to what this means for a second independence referendum bill, Aileen McHarg, professor of public law and human rights at the University of Durham, says that while technically the legality of an independence referendum bill raises different issues from those discussed in this judgment, the highly restrictive approach of the court to the Scotland Act and devolved competences does not bode well for such a bill surviving a legal challenge.

I fear she’s right. An uncharitable commentator might argue that the strategy pursued in respect of these bills has been a bit of an own goal, securing short-term political gain at the expense of long-term pain for the independence strategy. I think that would be rather harsh. One could equally argue it was sensible to test the waters with these bills. Either way the judgement is a bit of a wake-up call.

So too were Alister Jack’s ludicrous comments earlier this week that Scots must wait 25 years for another referendum and achieve 60% support for both independence and a vote over a 12-month period.

Brain of Britain Jack also said that the UKSC ruling gave “vital legal clarity” that Holyrood “cannot legislate outwith its areas of competence”. But we all knew that already. For his 60% rule he prayed in aid “the situation in Northern Ireland”.

However, as Carol Monaghan and others pointed out there is no 60% rule in Northern Ireland. The Good Friday Agreement clearly stipulates that 50% plus ONE person must vote for reunification – ie, a simple majority. Moreover, the Northern Ireland Act allows for a repeat reunification referendum after seven years have elapsed.

Earlier this year I was derided by the usual suspects when I pointed out that there is constitutional precedent for one part of the UK leaving by consent via the mechanism of a Treaty after a pro-independence vote in a general election (Ireland in 1921).

I felt vindicated when Ciaran Martin, the highly respected professor and former civil servant who helped negotiate the Edinburgh Agreement, also pointed to this important historical and constitutional fact when he made his well-received intervention in the debate.

He argued that a continued refusal by the British government to co-operate in the holding of a second independence referendum changes the Union between England and Scotland from one based on consent to one based on force of law. That, he said, is one of the most profound transformations in the internal governance of the UK since most of Ireland left almost a century ago.

He’s right and we will need statecraft to get round it.

We need to find a way to bring Westminster to the negotiating table on the issue of Scottish independence. Collecting mandates for a second referendum isn’t working. If Westminster won’t play ball as result of that strategy, we need to reset to a strategy that makes them play ball.

Getting support for independence to the 60% mark and keeping it there would help but this won’t happen until we have in place the crucial arguments we need on the economy, borders and EU accession. The restart of the work on the “detailed prospectus” that will ensure the next independence campaign is ‘fully informed’, announced by the FM last month is very important.

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In an interview with the Financial Times this week the FM also said that she expects to be able to take ‘concrete decisions’ on the timing of a rerun of the independence referendum next spring. I imagine this will still include introducing the promised bill to parliament, but it should be just one strand of a broader strategy in which having the right arguments ready will be crucial. A sustained increase in support won’t come without these arguments but we also need to build and demonstrate a wide base of support for independence in the way that was done for devolution in the years leading up to Labour’s victory in 1997 and which meant the result of the referendum that followed was a foregone conclusion.

So, let’s get the constitutional convention promised in January 2020 off the ground. It must involve grass roots as well as civic Scotland, but it should also involve our MPs, currently languishing in a Tory dominated Westminster with time on our hands.

Bluntly, if we cannot hold a referendum sanctioned by Section 30 and a Holyrood bill is struck down by the UKSC then we will need to focus our energies on the electoral process. Ultimately Scottish independence will come about when the people who live in this country get the opportunity to express majority support for it at the ballot box. If there’s no way to hold a referendum legally then we will need to use a UK or Scottish general election to demonstrate that support. We could face a UK General Election as soon as 2023 so we need to get our ducks in a row, soon.