Scottish Independence Referendum: Where does the Supreme Court ruling leave us?

The Supreme Court ruling has kiboshed the Scottish Government’s plans to hold a referendum next autumn.

But that of course does not put an end to this particular chapter in Scottish history.

First Minister Nicola Sturgeon confirmed as much when she described Holyrood legislating unilaterally for a referendum as “one possible route”.

So where are we now and what next for Scotland’s constitutional rammy?

Election versus de facto referendum

While making it clear that a referendum was her preference – and urging the Prime Minister to allow one to go ahead – Sturgeon said the next best option would be using the next general election (set for the end of 2024) as a “de facto referendum”.

This was floated when she made her initial statement about going to court in the summer, but scant detail was provided at the time or since on what that means in practice.

We’re not much further forward now.

The SNP is set to host a special conference early next year to discuss what making the election a one-issue topic entails. When pressed on the matter by journalists, she said that could be a manifesto, a white paper or a combination of both setting out what people are being asked to vote for.

But that’s where it could get confusing. It would be incredibly difficult to separate those who backed the party because they want independence from those who would back them in an election but don’t necessarily support independence, even if the SNP does say from the outset that a vote for them is a vote for indy.

There’s also the issue of other parties. Sturgeon sidestepped the question of whether, for example, Green votes would count as a vote for independence, though her constitutional secretary Angus Robertson said in the chamber a few hours later that “indeed they would”. But that would also, presumably, require all other pro-independence parties to view the election as a de facto referendum and campaign on that basis alone.

Another element which might hamper the SNP’s ambitions here as well is the fact that the voting age for general elections remains 18. That means that unlike in the 2014 referendum, 16- and 17-year-olds would be barred from voting – and repeatedly polling shows this group is far more likely to back independence.

An SNP victory in 2024?

Even if – and it is a big if – the SNP (plus other pro-indy parties) won upwards of 50 per cent of support, the step after that remains unclear.

Neither Labour nor the Conservatives are likely to accept the election as a de facto referendum, so whoever forms the next UK Government is unlikely to turn around a say, ‘aye, on you go’ to independence.

What it might do – and presumably this is what the SNP is hoping for – is encourage a fresh government to finally succumb to calls for a referendum some time before 2029.

That seems most likely if it is Sir Keir Starmer in Downing Street but is by no means certain. Meaning post-election we could be in exactly the same place we are now – pro-indy folk claiming there is a mandate for either a referendum or independence and pro-Union folk refuting it.

What about the UK Government’s next move?

Today ministers will be celebrating the court’s ruling as it reiterates that only they have the power to call a referendum. They are, of course, unlikely to do that any time soon.

While pro-independence politicians today are pointing to quotes of previous Conservative politicians about not standing in the way of what Scotland’s people want, ministers are able to point to polling that suggests most Scots don’t want a referendum any time soon.

And as for the idea that the Scottish Government has a mandate to deliver a referendum – well, as Alister Jack has said, the UK Government does not recognise that as a mandate. And there’s a fair reason behind it – simply that the Scottish Parliament election last year was no held solely on the matter of a referendum.

What Unionists haven’t answered…

Having said that, the elephant in the room for Unionists remains this: What would it take for them to consider a fresh referendum legitimate and required?

This question has never been fully answered; indeed, there seem to have been as many possible replies as there are Unionist politicians.

Sturgeon has a point here about whether membership of the Union is truly voluntary. If it is, Unionist politicians must prove it by setting out how and under what circumstance Scots would be asked again. Is it simply a matter of time? Is it polling? Could a de facto election do it? Or is there some other bar that Scotland would need to clear?

All in all, despite the excitement over today’s ruling, is does not and could never have provided clarity on what are ultimately political decisions to come. Which is a lot of words to say: watch this space.