The Third High Court ruling has not ended the Scottish independence movement but has instead brought it back to electoral politics.
There were two major arguments about Scottish independence that were launched this week at the Supreme Court in the United Kingdom.
The first was a case brought by the Scottish government. This was about whether the Scottish Parliament could pass legislation for Scotland to be independent from the UK.
The Scottish Government lost this case, although the court was careful to say that the case had been successfully returned. The judges agreed that the Scottish Parliament did not have the power to hold a referendum as it was “reserved” in the UK parliament at Westminster.
The result of this decision is that it is now not open to the Scottish government to call a referendum without the consent of the UK government, and that consent will not be granted for the future.
And this brings us to the second argument, which is not about the case but about the basic principles of the law. There is an important question for those who want Scottish independence whether a “legal” or a “political” route should be followed.
The official strategy is to push existing laws as far as they can go to push for a referendum on independence, and the political strategy is to seek and secure a position in the referendum.
The effect of the Supreme Court’s decision is that the legal process has ended. There is no appeal from the court on this or any other question. The legal system no longer has a purchase.
The political process has won, and the court’s decision may strengthen the politics of independence. Earlier, Scotland’s First Minister, Nicola Sturgeon, said she viewed the next election as a “de facto” referendum on independence.
Sturgeon has said she accepts the court’s decision. He is right to do so. The Supreme Court could have made a different decision, but their application of the Scotland Act, in this case, was not controversial. Judges cannot be challenged when the law itself is at issue.
The Supreme Court has confirmed what was once seen as a political truism: There are strict limits on what the Scottish Parliament and the Scottish government can do without the consent of the UK government and the Westminster parliament.
There is no Scottish unilateral independence to act on union questions, despite the UK’s claims to be an equal union. English and English politicians get a veto.
So the Supreme Court has returned the matter to elected politicians to decide. Holding a referendum on independence is no longer a dispute between court parties, but between political parties in the upcoming election.
Wednesday’s decision did not end the movement towards Scottish independence but rather replaced it with electoral politics. And that, perhaps, was the plan of the Scottish government all along.
The views expressed in this article are those of the author and do not reflect Al Jazeera’s influence.
