Scottish independence: Has democracy been denied or is Nicola Sturgeon in denial?

Less than two hours after the Supreme Court delivered its verdict on an independence referendum, Nicola Sturgeon stood before journalists in an Edinburgh hotel giving a speech she didn’t want to make.

Despite all the commentary in the weeks leading up to the judgment, no one really knew what decision the UK’s highest court would arrive at until Lord Reed began making his statement. Scotland’s political establishment held its collective breath.

Sturgeon’s team had presumably been working on several versions of the First Minister’s response, one triumphant, another reflective in defeat. But if there was a third version, one written in advance of a determination by the court that it could not rule on the matter, then it proved unnecessary. There was no room for dubiety in the unanimous decision reached by the five justices – the matter of legislating for a referendum is a matter for Westminster, not Holyrood, they said.

Despite Sturgeon’s brave spin, that the judgment gave her government the certainty it had always sought, the ruling was a major reversal for the SNP. In the words of the First Minister’s erstwhile political mentor, Alex Salmond, it was a “bad gamble that hasn’t paid off”.

“This judgment raises profound and deeply uncomfortable questions about the basis and the future of the United Kingdom,” Sturgeon told gathered reporters with that symbol of Scottish national identity, Edinburgh Castle, looming large out of the window.  

“Let’s be absolutely blunt, a so-called partnership in which one partner is denied the right to choose a different future... cannot be described in any way as voluntary or even a partnership at all.”

Hours later, hundreds of independence supporters gathered at the Scottish Parliament, signalling their intention not to give up the fight. Some in the crowd hurled abuse at party leaders Douglas Ross and Anas Sarwar as they were interviewed alongside the SNP’s Angus Robertson live on Channel 4 News. In a video which appeared on Twitter, Ross was seen being harangued by nationalists who called him a “democracy denier”.

One SNP figure later told The Times: “They really are just clutching at straws and hoping that the mentals go to these pointless rallies. Honestly, what did that achieve?”

The Yes movement now finds itself at arguably its lowest ebb since the 2014 referendum, with all momentum fast draining away. Yet while the Supreme Court’s judgment confirmed the primacy of Westminster in determining whether another referendum should be held, it also confirmed that a political rather than legal solution will need to be found to the current impasse. 

There has been a clear change in tone from the UK Government since Rishi Sunak became prime minister, with a focus on working with – not against – the devolved administrations. And while Sunak’s government is no more likely to grant a Section 30 order than Boris Johnson’s was, there are perhaps signs, subtle though they may be, of a softening in position. 

Appearing before the Scottish Affairs Committee earlier this week, Scottish Secretary Alister Jack set out what he called the “duck test” for a second referendum. Jack told MPs there would have to be evidence of a “sustained majority” in favour of independence for a second referendum to be granted. 

“It’s the duck test. If it looks like a duck and it sounds like a duck and it waddles like a duck, then it’s probably a duck. People know when they’ve reached that point,” he said. 

Stephen Noon, a former Yes Scotland strategist, says there are indications of movement in the UK Government’s position even since the Supreme Court’s decision last month.

“There has been a movement already in some of the language used by the UK Government about there being a democratic path and there being a test of some description,” he says “So things have shifted already.

“There’s a full stop with the Supreme Court decision. We’ve now got a period to think about what comes next, and I would urge the movement to focus on something which is about building towards a settled will.”

While many had considered the idea of using the next general election as a “de facto referendum” to be off the table, Sturgeon was quick to revisit it following the court’s rejection of the Scottish Government’s legal case. The SNP leader said her party would convene an extraordinary conference early in the new year to discuss the strategy. It raises the possibility of the SNP going into the election as a single-issue party at a time when voters are still feeling the effects of an unprecedented cost-of-living crisis, although much can change with the vote still likely to be around two years away. 

It’s unclear not only whether such a strategy would work, but indeed how it would work. Sturgeon had appeared to rule out the possibility of votes being cast for other pro-independence parties, such as the Scottish Greens and Alba, counting towards the final Yes tally, only to be contradicted hours later in an answer given at Holyrood by Robertson, the party’s constitution minister. 

Joyce McMillan, a journalist and independence supporter, says the political situation in the UK has changed since the prospect of a de facto referendum was first mooted in the summer, now making it an “implausible” prospect.

“I suspect when they get to their extraordinary conference early in the new year, a lot of the ordinary members will be feeling that,” she says. “The trouble with SNP politics is that you always hear from the noisiest people, the ones that are not happy with Nicola Sturgeon and her generally cautious approach. But it’s my experience that the majority of the members are quite sensible; they don’t want a referendum or a pseudo referendum that they’re going to lose.”

Numerous opinion polls have shown Scotland to be split right down the middle on the issue of whether the country should leave the UK. The latest, carried out by Redfield and Wilton Strategies following the Supreme Court verdict, found support for independence at 49 per cent, compared with 45 per cent for the the Union. But it also found support slipping for the SNP amid a Labour surge. 

The situation is far clearer on when there should be a referendum. Only around a third of voters support the idea of there being a vote next year, the First Minister’s preferred timetable before the defeat in the Supreme Court. The UK Government is on solid ground knowing most Scots are currently more worried about the economy and the state of the NHS than their constitutional future. But the Scottish Secretary’s contention that another referendum is perhaps only “eight or nine” on a list of people’s priorities seems unlikely. Sooner or later, the UK Government will have to come to the negotiating table. 

There are already considerable signs of frustration growing within the nationalist movement, grievances Sturgeon has sought to exploit with her rhetoric about “democracy denial”. In its submission to the Supreme Court, the SNP had argued the issue of a referendum was a matter of self-determination under international law, relying on a judgment from Canada’s Supreme Court on the right of Quebec to hold an advisory vote.

But delivering his summary of the UK court’s decision, Lord Reed said the Canadian ruling was that self-determination under international law “only exists in situations of former colonies or where a people is oppressed…”

“The court found that Quebec did not meet the threshold of a colonial people or an oppressed people,” the judge said. “Nor could it be suggested that Quebecers were denied meaningful access to government to pursue their political, economic, cultural and social development. The same is true of Scotland, and the people of Scotland.”

While there are those in the nationalist movement who very much consider Scotland to be treated like a colony and themselves to be oppressed, they are on the fringes. At least for now. For the SNP to build sustained majority support for independence, the party must spend less time preaching to the converted and more time setting out a compelling case for separation – something it has so far failed to do. 

Some of the rhetoric used by Sturgeon since the court’s ruling has seen her accused of borrowing a page from the populist’s playbook, of stoking division and fomenting grievance, a tactic which would ultimately prove self-defeating. 

But McMillan says the argument the First Minister is attempting to make is not an unreasonable one.

“It’s undeniable that the Supreme Court went quite far in its ruling in stamping down on the idea that Scotland has any right of self-determination at all. And that’s pretty controversial in the context of Scottish politics,” she says.

“If I was Nicola Sturgeon, I wouldn’t push it too far, but I think the reaction has been excessive. I think she can lean quite far on the Supreme Court effectively saying that Scotland has no right to self-determination. But she must avoid the suggestion that some Unionist commentators have talked up that if you don’t want a referendum now, you’re not a democrat.”

Those in the Yes movement have once again started referencing the 1988/9 Claim of Right, a declaration of Scottish sovereignty which would help form the basis of the campaign for a devolved assembly. The document, which was never about securing Scottish independence, was signed by nearly all of Scotland’s Labour and Liberal Democrat MPs, including future Prime Minister Gordon Brown.

Noon says the 1997 referendum on devolution is the “gold standard” which independence campaigners should now aim for, a vote which reflects the settled will of the electorate unlike Brexit, for example, which has only sown further division.

“We want a campaign to be as unifying as possible,” he says. “What can we do as a movement to get ourselves to a position where we are presenting a case which is beginning to be the settled will of the people of Scotland? What can we be doing to push support for more independence, full independence, whatever it might end up being, to 60 per cent?”

And for Noon, using a general election as a de facto referendum is not the right way of achieving that position.

“Independence will be its most successful if we move forward together, not as two 50/50s. It’s also important that we do it in partnership with the rest of the UK. I don’t think that happens if you have a process which is contested or a process which is about 50 per cent +1. There’s a better way of doing this – it’s not just about winning a campaign, it’s about nation building.” 

Another issue for the Scottish Government is what happens to the £20m is set aside early this year to plan for a referendum. With no new vote on the horizon and the government facing the toughest budgetary pressures since devolution, there is a strong case that the money could be better spent elsewhere. The Scottish Tories last week wrote to the government’s top civil servant, John-Paul Marks, seeking “urgent clarification” on whether civil servants would continue to be tasked with SNP “party propaganda”. 

Increasingly, it seems that among more pragmatic voices within the Yes movement there’s a realisation the campaign must once again return to playing a long game, attempting to win hearts and minds rather than repeatedly knocking at a locked door when it comes to securing a referendum. For Nicola Sturgeon, that could mean her chance is gone. 

The political map of the UK is likely to change significantly after the next election, regardless of whether the SNP fights it on a single issue. While recent events have shown that much can change in a short space of time, Labour look likely to form the next government at Westminster. How the party responds to the constitutional question will be key not only to its future but the future of the United Kingdom.

“All the solutions down the line are going to be federal,” says McMillan. “We’re always going to need open borders in these islands, we’re always going to need negotiated solutions… the solution is never going to be one that satisfies those people who just want to wash their hands of the UK, walk away and never talk about it again. That’s never going to be possible. 

“Asserting Scottish sovereignty is important, but the endgame is actually quite subtle and nuanced. It’s not just about walking away from the rest of the UK, it’s more about renegotiating the relationship.”