The Union is not based on consent – European leaders must now make it clear Scotland will be welcomed as the only country to be taken out of the EU against its will, writes Anthony Barnett

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The Supreme Court in London has ruled that the Scottish Government cannot ask its Parliament to legislate for a consultative referendum on whether to declare independence from England.

There is one clear winner from this decision: the Supreme Court itself. It has enhanced its powers and made it clear that it will not confine itself to a mere legalistic approach on matters of how the country is governed. 

In public, Brexiters will delight in the decision as a ‘humiliation’ for Nicola Sturgeon. In their cups, they know they have been struck another blow. For they are obsessed with ‘sovereignty’ – by which they mean the right of ‘our’ Government to act like an absolutist power, unchecked by rules, regulations or precedents.

On the surface, which is important, this is a setback for the Scottish Government. Just as important, below the surface, it is a constitutional set-back for the Conservative Government. It is also a political clarification that the United Kingdom is united only in the sense that it is a prison for its constituent nations.

It is also a welcome relief for wiser supporters of Scottish independence. For the odds are that a referendum on independence held next October, as Sturgeon proposed, would have been lost. 

In the middle of a recession, with the prospect of a Labour government offering a more generous devolution, and the EU focused on Ukraine, an October referendum with consultative status would probably have been a mess – it offered no certain outcome – and could well have been successfully boycotted to undermine its legitimacy.

Meanwhile, the demography tips the outcome towards a positive Yes vote, year by year, as younger voters are markedly more pro-independence than their grandparents. 

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The UK Government had wanted the Supreme Court to rule that there was no decision for it to take. It argued that the Scottish Government could not ask the court to rule in advance on the legality of an action. Had the court agreed, it would have left a fog of unclarity about any consultative referendum and either Sturgeon would have had to risk proceeding with one – which would likely be accompanied by boycotts and declared illegal after the fact – or pull back and be declared ‘frit’.

The Scottish Government wanted the court to rule on two things. First, that it did in fact have the right to know beforehand whether or not it would be breaking the law. Second, that it should be given the go-ahead because, while it accepted that independence is a ‘reserved power’ and only Westminster can permit it, it had the right to ‘consult’ its people about their opinion on the matter. 

The Supreme Court ruled against the UK Government and for the Scottish one and said that, on an important matter of this kind, it did have the power and obligation to say in advance whether such an act would be legal. 

At the same time, the judges decided that “even if the referendum has no immediate legal consequences, it would be a political event with important political consequences, in reality, whatever the legal formulation”. It therefore ruled against the Scottish Government’s plea that the proposal was not ‘really’ a constitutional one. In so doing, the court set out a clear precedent for itself to address ‘consequences in reality’. It shattered any chains that might hold it to a purely legal, narrow, confinement of its role. 

I believe we can sleep better because of this.

The decision confirmed the fact that the UK is a prison of nations and not a union based on freshly given and freely refreshed consent. This makes it more undemocratic than the EU.

It has also allowed Sturgeon to state that the issue has become one of “democracy” not just independence. She is reaching out to the undecided by saying ‘the clowns at Westminster won’t even give us the right to decide this for ourselves, whether you are for or against it, it is surely your decision’. 

This shift has earned the scorn of the New Statesman’s Chris Deerin, who suggests it is a “phoney” distraction from realities. 

But there is a larger and, alas, not at all phoney reality: Brexit. It is Brexit and the fact that Scotland was taken out of the European Union against its will that has put democracy at the heart of Scotland’s national question.   

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Brexit is the material change in Scotland’s place in the world that legitimises the Scottish Government’s claim that another decision is needed despite the outcome of the 2014 independence referendum. 

It also follows that the place of Scotland in Europe is a crucial aspect of the current showdown. 

In 2014, to vote for independence meant leaving both the UK and the EU. Now, such a vote means leaving the UK for the EU. 

Does the EU want Scotland enough to cover the costs of transition? Some of us think it would be a bargain of the century. It is an issue the EU has a legitimate interest in tackling in advance, following the example of the Supreme Court.

European leaders need to make it clear that Scotland will be welcomed as the only country to be taken out of the EU against its will. This will make any future referendum about how best Scotland can become part of something larger than itself. 

I’ve no doubt that, if our European neighbours did this, re-joining the EU as an independent country would soon become the ‘settled will’ of the Scottish people, at which point Westminster will give way.

Where Scotland leads, England can then follow – which is one reason why every English democrat should support Scottish being given the choice as soon as possible. 

Anthony Barnett is a founding supporter of Europe for Scotland


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