Wednesday’s High Court ruling has not ended the movement towards Scottish independence, but has returned it to the domain of electoral politics.
There were two high-profile disputes over Scottish independence determined this week in the UK Supreme Court.
The first was a legal case brought by the Scottish government. It was about whether the Scottish Parliament could legislate for a referendum on Scottish independence from the United Kingdom.
The Scottish government lost this case, although the court was careful to say that the claim had been properly filed. The judges unanimously decided that the Scottish parliament did not have the power to organize such a referendum, as it was “reserved” for the UK parliament in Westminster.
The effect of this ruling is that it is now not open for the Scottish government to call a referendum without the consent of the UK government, and that consent will not be given for the foreseeable future.
And this brings us to the second dispute, that this is not a legal case but constitutional first principles. There is a fundamental question for supporters of Scottish independence as to whether to follow a “legal” or a “political” route.
The legal route is about pushing existing legislation as far as possible to push for an independence referendum, and the political route is about seeking and obtaining a mandate in elections for a referendum.
The impact of the Supreme Court ruling is that the legal process has come to an end. There is no appeal from the court on this or any other matter. The legal strategy no longer has any purchases.
The political track has won, and this court decision is likely to strengthen the political campaign for independence. Scottish First Minister Nicola Sturgeon has already said that she believes the next general election will be a “de facto” referendum on independence.
Sturgeon has also said that he accepts the court’s verdict. She is right to do it. The High Court could have reached a different decision, but its application of the Law of Scotland, in this case, was not controversial. Judges cannot be blamed when it is the law itself that is to blame.
The High Court has confirmed what was already considered a basic political truth: there are strict limits to what the Scottish Parliament and the Scottish Government can and cannot do without the consent of the UK Government and Parliament at Westminster.
There is no autonomy for Scottish unilateral action on union issues, despite the rhetoric of the UK as a union of equals. England and English politicians get a veto.
So the Supreme Court has returned the matter to elected politicians for a decision. Holding an independence referendum is no longer a contest between parties in court, but between political parties in the upcoming elections.
Wednesday’s ruling has not put an end to the movement towards Scottish independence, but has returned it to the domain of electoral politics. And that, perhaps, was the Scottish government’s plan all along.
The opinions expressed in this article are those of the author and do not necessarily reflect the editorial position of Al Jazeera.
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