Supreme Court Judgement

I note the UK Supreme Court’s judgment on the interpretation of the Scotland Act which settles the disputed issue of the devolved parliament’s competency to hold an independence referendum, although not in the way I would have liked.

Most of us assumed that the UK was, like the EU, a consensual union.  I am puzzled by the court's suggestion that the principle of self-determination is “not in play here” and will need to study the judgment on this issue carefully. Scotland, unlike Quebec, is an ancient nation, which was a state in its own right before it entered into a consensual union with England in 1707.  Are the UKSC saying Scotland is perpetually trapped by force of law in what was a union of consent? 

If the UK Government had any respect at all for Scottish democracy, this court hearing would not have been necessary. At the 2021 Scottish election voters elected a government with a manifesto commitment to hold a second independence referendum. The last time that happened, after the 2011 Scottish election, the UK Government respected that mandate and, after a period of negotiation, Alex Salmond and David Cameron entered into an agreement to put beyond doubt the legality of the independence referendum the Scottish parliament went on to hold. They also agreed that both governments would respect the result. 

 So, there is an established constitutional precedent of the right thing to do in these circumstances. The unwritten British constitution proceeds by way of custom and practice. If the UK Government respected their own constitution and democracy, they would replicate what happened a decade ago, come to the negotiating table and enter into a second Edinburgh Agreement. That they will not do that this time round is unconstitutional as well as a denial of democracy. 

 Just think how English voters would have felt if, after they elected a Tory Government in 2015 with a manifesto commitment to hold a referendum on leaving the European Union, the EU Commission had tried to block that referendum. You don’t need much imagination to envisage the outrage that would have prompted. 

I would also point out that the idea that voters in Scotland should have to wait indefinitely for another poll does not sit easy with the terms of the Northern Ireland Act 1998 which envisaged that a cross border poll on reunification of Ireland may be repeated after a period of 7 years. Why should Scottish democracy be curtailed in a way that Northern Irish democracy is not? 

The solution is of course political.  The reality now is that if the UK Government will not come to the negotiating table, then the only route to forcing them there is by the ballot box in an election.

The people who live in Scotland will determine our future and it's time for the promised Constitutional Convention to be convened to take matters forward.

Joanna Cherry KC MP

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