What should we make of the Supreme Court’s ruling on the SNP’s proposed Independence Referendum?

As with any committed supporter of Yes Cymru’s campaign for Welsh Independence we should take a close interest in developments in Scotland. We have always been behind the curve traced by the Scottish campaigners for independence, so their experiences there should inform our approach here.

So, what should we make of the Supreme Court ruling today? (23/11/2022)

1.   It should have come as no surprise, given what was required in order to hold the 2014 Referendum.

2.   The ruling given today is no more than an (admittedly well-informed) interpretation of the current law and is not legally binding.

3.   It lays bare the current constitutional status of Scotland (and Wales, by inference) such that it should fuel the Independence campaign rather than defeat it.

Let me expand on these points.

1. What was required to allow the 2014 Referendum to happen?

The relevant constitutional arrangements were laid down in the Scotland Act 1998. These dictated what was required in order to have the IndyRef in 2014. This Scotland Act laid out what areas the Scottish Parliament could make legislation on and which areas were ‘reserved’ to the UK Parliament in Westminster.

Then, as now (nothing has changed), what is devolved and what is reserved is determined by the UK Government and that has always included matters of “the union of the Kingdoms of Scotland and England”.  Thus, then as now, explicit permission from the UK Government was required to enable the 2014 IndyRef to happen. This took the form of a facilitating ‘Order in Council’. These require the monarch to sanction a proposal drafted and controlled by the government to override some existing legislation. It is usually done with the approval of Parliament, via an Act of Parliament, but can be authorised by virtue of royal prerogative (which is quite a scary thought, if you reflect on it a while).

So, IndyRef 2014 was enabled by the Scottish Independence Referendum Act 2013, in which the UK Government gave Scottish Ministers permission to organise said referendum, but under tightly framed conditions. These conditions included:

  • ·      The referendum question; “Should Scotland be an independent country?”
  • ·      The layout of the ballot paper
  • ·      The date of the ballot; 18 September 2014
  • ·      Those that were entitled to vote
  • ·      How the vote could be conducted (postal ballot, proxy votes etc.)
  • ·      Campaign rules and offences
  • ·      And most other details of the whole thing.

This was all duly monitored by UK Government officials.

Thus, Nicola Sturgeon, the SNP and Yes Scotland would all be fully aware that nothing has changed since 2014 in these respects. Thus, when the Scottish Government drafted their Scottish Independence Referendum Bill earlier this year, with the aim of holding a referendum next October, they knew full well that it was illegal. So why go through the charade?

The obvious reason is that they know what is different now than was the case in 2013. Back then, they knew that they had enough support in Westminster and a weak UK Government (it was the Cameron-Clegg coalition government, that had not long taken over from (Scot) Gordon Brown, who had facilitated a lot of the groundwork. Now we have a vehemently non-co-operative government and an equally disinterested Leader of the Opposition (a knight of the UK realm, no less). Thus, the Scottish Government are, in my opinion, trying to manipulate public opinion in order to make the UK Government’s position untenable.

2. So, can a referendum still happen?

Short answer, of course it can. 

Long answer, there are a few circumstances in which it can still happen. 

  1. ·      Scottish Government could choose to ignore the opinion of the Supreme Court and take their chances in the inevitable legal challenges to its validity.
  2. ·      They could work harder on lobbying for support for an enabling Act within the UK Parliament
  3. ·      They could manipulate the campaign at the next General Election in Scotland into a single-issue campaign, i.e. Scottish Independence.

The last of these 3 options seems to be where the SNP are at right now; a position they will have been lining up knowing full well what the Supreme Court would say. But I think it is a very high-risk approach. There is so much other shit going down right now, especially the cost-of-living crisis, that to kick stating policy on all this down the road in order to focus purely on the independence question might seem somewhat self-indulgent. However, with a large part of all the big issues being directly attributable to a succession of Tory governments in Westminster, it could be the right approach if handled well enough, although at best it is no more than a staging post towards the other options.

Personally, I see a lot in favour of the first approach above. With a resounding result in favour, why not go for a UDI (Unilateral Declaration of Independence)?  UDI has a chequered history of successes and failures. 

This was what they attempted to do in Catalonia in 2017  and it did not end well. But a lot of mistakes were made there that the Scottish Government can learn from. If nothing else, it would be fascinating to witness how the UK Government would respond to attempts to go down this route.

I think we can dismiss the middle option above as not worth the effort with the current make-up of the UK Parliament, but it could certainly have much greater traction if the first option went well. 

3.  What have we learned from the verdict of the Supreme Court?

In short, nothing new.

But it has laid bare a few things that independence campaigners have argued for a long time, that cannot now be denied.

Not surprisingly, Nicola Sturgeon was all over some of this straight away:

“A law that doesn’t allow Scotland to choose our own future without Westminster consent exposes as myth any notion of the UK as a voluntary partnership and makes the case for independence.”

She is patently right on this point. It establishes the reality that, despite the increased devolution achieved in recent decades, Scotland, Wales and Northern Ireland are, at best junior members of an unequal, forced and enforced union. They are, in effect, colonies of an English Empire, along with the few remaining scattered and distant islands of the nominally British Empire (British Overseas Territories) .

There is no British Empire left. Control of all these territories includes matters reserved for the Westminster Government. King Charles is the monarchial head of state of them all too. It is an English Government and an English monarch (so long as you don’t go too far down the family tree).

The myth that Westminster can represent the interests of its UK colonies is laid bare by this table showing the make-up of the Westminster parliament over the last 100 years:

Currently the three colonies combined are allowed 18% of the votes in Parliament (9% to Scotland, 6% Wales, 3% N. Ireland). 100 years ago, the three together had 20% of the seats. At the next election it actually goes down to barely over 16%!! The direction of travel is clear enough; Scotland, Wales and N. Ireland get less and less influence in Westminster over time.

Furthermore, there is no pretence that Westminster is a UK parliament reserved to look after UK interests. It has always been, first and foremost, the English parliament. There is no devolved English parliament; Westminster is it!


All that today’s Supreme Court verdict has achieved is to underline the moral bankruptcy of the UK’s constitution, in every sense of that word ‘constitution’. It underlines that the UK is a coercive relationship:

  • ·      It dictates your relationships with those outside (e.g. EU, NATO etc)
  • ·      It dictates what you can and cannot do for yourself
  • ·      It denies you freedom and autonomy
  • ·      It gaslights you regularly (e.g. this is a union of equals)
  • ·      It limits your access to money
  • ·      It impacts on your self-esteem (e.g. you are nothing without me)
  • ·      It is ultimately seriously bad for your well-being.

Scotland, and Wales and Northern Ireland need to sustain their desire to break free and create their own independent futures. If this means, ultimately, just getting up and walking out, then so be it. There are always difficulties along the way, but it is the only way to a truly happy and safe future.

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