this case closed this wednesday inside UK Supreme Court charts an uncertain path Scottish independence. Leaving the details of the decision aside, the fact that the matter was brought to court in the face of the impossibility of re-negotiating with the British government reveals a simmering conflict that may now take a new form. Prime Minister’s reaction Nicola sturgeonwas to accept and reaffirm the result the will to achieve independence by legal means. But is it really possible to call for a referendum today after the Supreme Court has closed the door on that without London’s approval? To know, ElNacional.cat meets with the doctor Nick McKerrellProfessor of Constitutional Law at Glasgow Caledonian University, soon after the case was settled.
What are the first feelings among Scottish separatists after the Supreme Court decision?
This is a very clear provision. This means that there is no valid legal way to hold an independence referendum through Scotland’s devolution agreement (1998). Therefore, it means that the strategies put forward on this basis have come to an end. The Scottish people who support independence will have to consider what strategy they will now use to achieve this, as they are not open to a referendum prepared by the Scottish Parliament.
Do you think more people will be in favor of independence after this result?
Maybe not in the first place, because this legal action has been going on for a long time. So in some ways it didn’t crash. However, in the long run I think you may be right. Now the question that remains is how can you raise your voice for independence if you can’t do it that way. This can cause people to wonder ‘how do we do this’.
Constitutionally speaking, what are the consequences of this decision?
Its effects are quite significant. What the courts say about the return is that it is not impossible to hold an independence referendum, but this requires the agreement of the UK Government. It shows that the Scottish devolution agreement did not allow Parliament itself to draft legislation for a referendum. This is important as it clearly shows the limits of return. Before it was ratified, the independence movement was divided on whether to support the return, as some argued that it would not be a mechanism that could lead us to independence. This is what is confirmed today in legal terms. Basically, it raises big questions for those who want independence constitutionally, because how do they get there without a referendum? In this sense, there is a situation similar to Catalonia.
Nicola Sturgeon has made it clear that she wants to go the legal route. What does this mean for your plans? Is it possible to call a referendum constitutionally, but without London’s approval?
From the point of view of English law this now seems impossible, because the Supreme prevented it. There is talk of things like “international law” or “international society”. The end of the sentence indicates just that, saying that the principle of self-determination in international law cannot be applied to Scotland because it is not an oppressed nation or colony. This may sound quite provocative to some people, but the legal meaning is that the Supreme Court also blocked international law. Therefore, even with international law, a legal way is problematic. The other option currently being discussed is to turn the general elections into a de facto referendum. There are problems with this too: Although it is ‘legal’ because there are elections and you can campaign on whatever you want, they cannot force the main anti-independence parties to accept it.
So the only legal option left to the Scottish government is to negotiate with the British government?
Yeah, how did they do it last time? Basically, the Court says it’s the only way. This is what the law allows, it does not allow the Scottish Parliament to draft legislation for a second referendum.
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