The SNP has all but given up on making a positive case for independence

Few will be surprised by the Supreme Court’s judgment, not least the First Minister given her Lord Advocate’s view on the matter. There had been recent speculation that the court might offer a more ambiguous judgment, requiring more than a draft bill for its consideration. But there was never any doubt that the Union was a reserved matter. 

It is difficult to take seriously the notion that a consultative referendum would have had no effect or that the SNP would not claim victory as anything other than a mandate to start negotiations. In effect, the court was being asked to legitimise a referendum that Westminster could not have ignored.

But where does this leave us? This exercise was always more political than legal. The SNP appears to have all but given up on making a positive case for independence, preferring to focus on grievances. 

The judgment feeds legitimate grievances. In that the judgment has succeeded from the SNP’s perspective as part of a strategy to keep the issue uppermost, fuels claims that Scotland is being denied a right to self-determination, and avoids the SNP defending is far from impressive record in government.

In this respect it highlights a problem for opponents of independence. If Scotland is entitled to leave the Union then what is the procedure, what should trigger a referendum? There does at least appear broad agreement that a referendum is required just not how it can be triggered.  Even if Parliament at Westminster is required to make the final decision, there needs to be agreement on when Westminster should concede one.

The political backdrop is changing in a direction that is unlikely to work to the SNP’s advantage. The SNP struggles to get the ferries sailing but it may find that its constitutional ship has sailed. 

But it also creates headaches for the SNP.  Much resentment and frustration will be voiced, some of which will be genuine, that this route has been blocked. But the SNP leadership knew this was the most likely outcome and indeed Nicola Sturgeon’s Plan B would not have been articulated long before the judgment had there been a real prospect of an alternative decision from the court. 

Plan B is strikingly unclear. Nicola Sturgeon intends to ask her party for guidance on what should happen after the next UK election. In one respect this is an unusual development from a leader who prefers to tell her party what it thinks. On the other, it fits with a leadership style that likes big eye-catching announcements but leaves the consequences including challenge of implementation to others. 

The "de facto referendum" joins closing the educational attainment gap and dealing with drug deaths on the list of attention-grabbing pronouncements that have not been thought through fully.

The notion of a de facto referendum is the next big scene in the choreography of an act in Scotland’s constitutional journey that is being written as it happens. Winning 50 per cent of the vote would indeed be a major achievement, but what next? 

The other main parties refuse to see the next election as anything other than an election. It is difficult to see any prime minister conceding that a mandate to govern the UK is inferior to the SNP’s mandate to negotiate independence.  And 50 per cent will be a big challenge – not impossible but looking ever more unlikely as Labour’s commanding lead makes the possibility of Scottish Labour advancing at the SNP’s expense. 

Labour do not need to win back Scotland.  If Labour takes only a handful of seats and few votes from the SNP then that will be a defeat for the SNP in terms set by the SNP’s leader.

Politics is an expectations game and one the SNP leader may prove to have played very poorly.  In any other circumstances an SNP vote of 49 per cent would be a massive achievement but not when a target of 50 per cent has been set.

But the SNP’s opponents would be wrong to think that Scotland’s constitutional status was off the agenda even if the SNP vote fell below 40 per cent. If, as now seems probable, Labour is returned at the next election, Keir Starmer will have a chance to address the unfinished business of constitutional reform started when Labour was last in power. 

Failing to do so would in time leave Labour in the situation the SNP now faces of watching as the window of opportunity closing.  In the event of failure to win 50 per cent of the vote, a post-Sturgeon SNP is likely to engage in introspection, internal blame games and blood letting. That would be Labour’s opportunity to win back support of those who have seen independence as the only reform option. But it needs a plan and it needs to implement it.

The SNP will not disappear but regroup and return in time. There can be no doubt that support for independence, even if it doesn’t reach 50 per cent, represents a major vote of no confidence in the current UK that ought to be a major concern. 

The sense that all is not well is felt across the state though manifested in different ways. Even many living in close proximity to the centres of power feel that they too are not listened to, treated with contempt and have very good reason to feel aggrieved – head west from Westminster through Hyde Park to Grenfell Tower if you need any convincing of that.

The political backdrop is changing in a direction that is unlikely to work to the SNP’s advantage. The SNP struggles to get the ferries sailing but it may find that its constitutional ship has sailed. The focus may now be turning to Labour. It cannot afford in the long term to miss the constitutional reform boat.