Inside the Supreme Court on Scottish independence judgment day

He read from a brief explanation of the judgment, printed double-spaced on light blue paper.

The hushed audience of MPs, law students, journalists, and activists, sat on wooden benches, the ends of which are carved with the heads of Richard III, Henry VIII, and other English kings.

They clung to every word as he delivered the unexpected ruling – that Scotland did not have the authority to hold a referendum without the express permission of Westminster.

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He monotoned the judgment – which the SNP have declared proves beyond doubt the Union is not “voluntary” – to the backdrop of a softly ticking clock that marked down the seconds before the independence debate entered its next phase.

There were defeats for all sides in the judgment, which if the chatter before it was delivered is to be believed, will have caught many by surprise.

I had appeared on a phone-in that morning on BBC Scotland – where the host posited many commentators had predicted a murkier outcome, in which the court would refuse to rule on the proposed referendum bill – a view I had mistakenly backed.

That was the outcome the UK Government wanted, for the court to accept its arguments it would be “premature” to pass judgment on a bill that has not been published.

Thus came the first defeat in a blow to the UK side, rejecting their arguments that it should simply toss the matter, and punt it into the long grass.

This would have been a nightmare for the Scottish Government and watered down arguments it is now well-placed to make. Nicola Sturgeon’s Government and party can now argue: “Well, we tried to play by your rules, but the game is rigged against us.”

And they won’t be wrong. As Lord Reed went on to set out, the Scotland Act is restrictive. It does not allow the Scottish Parliament to legislate on matters which are reserved to Westminster – therefore it has no right, as Lord Reed’s judgment set out, to enact legislation that would end “the sovereignty of the United Kingdom Parliament in relation to Scotland”.

So came the defeat for the Scottish Government, which acted in the case as a distinct entity from the SNP. The Lord Advocate did not cut it with her arguments that because the effects of the bill would be strictly legal and that the enactment of the legislation itself would have no bearing on the Union in and of itself.

Lord Reed, flanked by the court's four other judges on the slightly curved bench at the head of the room, said the Scottish Government wanted to introduce and pass the bill to hold a lawful referendum, the outcome of which would “possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate”.

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The court had to consider the practical effects of the bill – not just what it would mean or do in a strictly legal sense. That was a rejection of one of the Lord Advocate’s arguments. At this stage, it was still nil-nil.

Complicating matters was the intervention of the SNP – whose arguments appealing to international human rights cases in a similar vein did not apply to Scotland, on the basis that people’s rights to self-determination established in the case law cited related to “former colonies”, places where people were oppressed or where a “definable group is denied meaningful access to government to pursue their political, economic, cultural and social development”. Lord Reed said this was not the case in Scotland.

That’s nil points all round.

If there were any winners, it might have been Lord Advocate Dorothy Bain, who triggered the whole course of events by raising more than an eyebrow at the Scottish Government’s proposed referendum bill, understanding as she does the terms of the Scotland Act.

Less than 15  minutes before he began, Lord Reed declared the court adjourned and MPs, hacks, budding lawyers, and campaigners filed out.

Supreme Court justice Lord Reed delivered the ruling

The skies had cleared after a rainy morning which left the concourse outside the Supreme Court, overlooked by Westminster Abbey and within spitting distance of parliament, slick and wet.

What pro-independence MPs were saying

Pro-independence MPs were relaxed about their court defeat.

None were surprised. All seemed glad of some movement on the cause they have spent their political careers trying to advance.

However, all but the least reserved among them (Na h-Eileanan an Iar MP Angus MacNeil tweeted Plan A was “dead” just two minutes after Lord Reed closed the session) seemed slightly less than certain the de-facto referendum strategy would be followed before it was announced by the First Minister around an hour and a half later at a press conference in Edinburgh.

Of the Plan B strategy, Douglas Chapman, MP for Dunfermline and West Fife, told me before it was announced the de-facto referendum plan was going ahead that “if it goes to that stage, we need to feel confident about winning that”.

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The FM later announced the SNP will hold an emergency party conference to decide the “detail” of how the de-facto referendum would be fought, as she confirmed the party’s intention to plough ahead with the plan, while pledging a renewed push to campaign for independence.

Speaking to The National afterward, MacNeil suggested this election didn’t need to be a General Election.

It could be as early as next year, he said, suggesting when the SNP meet in 2023 for their emergency summit, he may be one to push the case for holding an early Holyrood poll and treating that as the de facto referendum.

He said: “The only thing that’s within the SNP’s control – and it’s within the Scottish Government’s control – is to call a Holyrood election early.

“We can’t have a referendum now but we could have a Holyrood election around the time we were planning to have the referendum anyway.”

It was just over a month ago the court heard the arguments from Bain and the UK Goverment’s top lawyer James Eadie KC and no one expected a verdict this fast.

Many independence supporters will feel dejected that the referendum planned for October next year is officially cancelled but they can take some comfort that the UK Government didn’t quite win.

But what really ought to cheer Yessers is that Lord Reed, in his quiet drone, might have delivered the independence movement one of its most potent arguments yet; near confirmation the Union is not really voluntary.

It is now down to the movement to capture the power of that argument – that even if you’re neutral on independence, we can’t leave the Union regardless of how many Scots vote for pro-Yes parties – to win those undecided or swaying voters.

But the real winners may have been an excited group of law students I spoke to in the Supreme Court a few hours after the ruling. They said they were just delighted they had managed to follow every word of the judgment and understand it.