EARLIER this week, the UK Government failed in its bid to get the Supreme Court to throw out the Scottish Government's request for a ruling on the lawfulness of its independence referendum bill.
The Tories wanted the case dismissed without any ruling in a transparent attempt to maintain the current legal ambiguity which is so politically advantageous to the British nationalists – who still insist that they are not nationalists. This legal ambiguity allows the anti-independence parties to maintain that the UK is a voluntary Union, while also continuing to block moves to exercise the self-determination they insist Scotland has.
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This ambiguity, and the political obfuscation which it allows, is crucial to the assertion of the anti-independence parties that they are not themselves nationalists, but rather stand in opposition to nationalism. That claim does not stand up to even the most cursory scrutiny given the support of both Labour and Conservatives for a hard Brexit which is an obvious creature of right-wing, Anglo-British nationalism.
Nevertheless, the claim that their opposition to Scottish independence makes them non-nationalists is fundamental to their anti-independence strategy, and it is not a claim that they will give up easily. A ruling from the UK Supreme Court that Holyrood's referendum Bill is lawful would mean both that a referendum is going ahead, and that the anti-independence parties had lost control of the process.
However, a ruling from the Supreme Court that the Bill is outwith Holyrood's competence would mean the only lawful route to another independence referendum would be with the permission of a British prime minister. Such a prime minister is always going to come from a party opposed to Scottish independence – and their party may very well have minimal support in Scotland. This destroys the traditional Unionist conceit that it has always been for the people of Scotland to decide Scotland's future.
Such a ruling would fundamentally change the understanding of the nature of this supposed Union. It would no longer matter what the people of Scotland voted for in Scottish Parliamentary elections, Scotland's fate would not be in Scotland's hands.
By defending this state of affairs it would become politically impossible for the anti-independence parties to maintain the fiction that their Anglo-British nationalism is not in fact nationalist. The Scottish independence debate would cease to be a debate between supporters of independence and supporters of a voluntary Union of nations. It would become a debate between proponents of Scottish independence and apologists for a centralising and incorporating unitary Anglo-British state.
Even worse for the opponents of independence, this ruling would not deal a death blow to any chance of a lawful vote on Scottish independence, it would merely trigger the conversion of the next General Election in Scotland into a de facto referendum.
For all the wails from the opponents of independence that the SNP cannot determine the terms of a UK General Election – or that there is "no such thing as a de facto referendum" – there is not much that Labour or the Tories can do about it.
Keir Starmer (above), and whoever ends up as the Conservatives' next worst prime minister ever, may be able to ignore Scottish democracy and discount the outcome of the 2021 Holyrood election, but their anti-democratic power does not extend to telling other parties what they can put in their election manifestos. If the SNP, Scottish Greens, and other pro-independence parties choose to fight the next General Election on the single issue of seeking a mandate for Scottish independence that is a matter for them and the voters – no one else.
The Supreme Court has announced that it is going to hear arguments on the substance of the legal question in October. A ruling should be delivered a couple of months later. One way or another Scotland will get clarity on the way forward and the legal ambiguity which has been such a valuable tool for the parties opposed to independence will be brought to an end.
This piece is an extract from today’s REAL Scottish Politics newsletter, which is emailed out at 7pm every weekday with a round-up of the day's top stories and exclusive analysis from the Wee Ginger Dug.
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