Being Supreme, Becoming Ungovernable

The ramifications from this week’s Supreme Court ruling continue to unfold. For some there’s a shrug of the shoulders, a contemptuous ‘told you so’ and a wry ‘this changes nothing’. For others on the left it is more apocalyptic – the final nail in the coffin of Scottish independence, as they have long predicted. The same comes from the Unionist right who have been falling over themselves in the unbridled ecstasy of witnessing national humiliation in real time.

But among the cackling there’s some more chastened analysis. Here, in the post-mortem, Kenny Farquharson asks a question that has been ringing around the country for the last few days: “Is Scotland’s presence within the UK voluntary? If yes, what are the legal means by which Scotland can voluntarily leave?” (‘Referendum ruling poses a challenge for Rishi Sunak‘).

He concludes: “There is, as yet, no convincing answer from the UK government. This is unsustainable.”

The ruling has pushed most people back into their standard default places, but to give Farquharson his due he is at least thinking about its consequences:

“To be blunt, and to say out loud what is usually said sotto voce, the UK government risks civil unrest and violence if independence supporters are denied a democratic path to achieving their legitimate aims.

The UK government has been here before and responded with a deftness of touch that won international plaudits. In the Good Friday Agreement it provided the nationalist community in Northern Ireland with a legal, constitutional, peaceful means of exiting the UK, if that was the majority view.

A wise prime minister, whether Tory or Labour, would put Scotland on a comparable footing to Northern Ireland. This would take much of the heat out of Scotland’s constitutional debate. The focus would be on whether independence was a good or bad idea, rather than on whether democracy was being denied.”

This would indeed be a constructive move, but remains unlikely. All of the people around Sunak advising on constitutional affairs remain the same. Alister Jack remains – landed insouciance personified – waiting patiently for his ennoblement for studied uselessness. Scotland is a hinterland of no electoral worth to the Tories. The SNP are an irritant at Westminster but have managed to leverage little actual real pressure despite their numbers.

What would be the motivation for the Conservatives to act unilaterally to ‘put Scotland on a comparable footing to Northern Ireland’? It would be the right thing to do, it would be a bold and decisive constitutional move, and it would create parity and symmetry in a constitutional quagmire wracked with contradictions. But there’s little sign that a Conservative government fighting a rearguard action defending its Red Wall and its Blue Wall would care much about Hadrian’s Wall.  What would be the gain?

Most of the Conservative leadership – and possibly the Labour one too – believe that simply supressing any possibility of a referendum is a winning strategy. In the aftermath of the Supreme Court ruling this led to Nicola Sturgeon framing the independence movement as a ‘democracy movement’ to howls and shrieks of derision from the very parties who *checks notes* were just celebrating the closing down of a democratic event based on a triple mandate.

Lawyer Cat Headley was among these pleading: “To brand one side of this already incredibly polarised, divisive and bitter debate “supporters of Scottish democracy” and by inference, the other side “the opponents of Scottish democracy” is insulting and unbecoming of the FM.” Aside from the tired old trope of ‘polarised and divisive’ this seems disingenuous. You can’t have your cake and eat it. If you want to base your argument and your strategy on denying a democratic event you fear you would lose, you can’t then turn around and ask for a Democracy Medal. It doesn’t work like that.

I don’t think that political violence is imminent as a result of the Supreme Court ruling as Kenny Farquharson suggests. But I do think he is right that denying a democratic path to “achieving legitimate aims” is dangerous intransigence which may well, and probably should lead to civil unrest.

If Rishi Sunak, the man who thought Darlington was north of the border, is unlikely to take up the challenge of a Good Friday Agreement for Scotland, and if the SNP seems consumed by hyper-caution, centrism and the effects of too-long in power, then the wider movement and wider civil society will have to begin to exert pressure as – yes – a democracy movement. This urge to ‘become ungovernable’ in the most creative ways has some recent history. The tributes that flooded in for the late great Ian Hamilton speak to that tradition, as did the Anti Poll Tax campaign, and more recently the Kenmure Street revolt. Rather than feeling (and being) disempowered by the political class, its time again for leadership from below.

Rory Scothorne has written about the Supreme Court ruling, with more positivity than most could muster: “The irony of all this is that the Scottish parliament was supposed to reinforce the legitimacy of the UK state, not undermine it. With sovereignty and the union safely reserved, devolution was designed to give Scotland a distinct voice within the union without threatening the union itself. And yet in permitting Scotland such a prominent outlet, Westminster has created a political system that speaks for its people far more directly and authentically than the UK government ever can, yet which is officially denied the ability to match voice to action. The supreme court judgment is an open admission of the dangers this mismatch poses to the structure of the state itself. Far from being a blow to independence, this admission presents an opportunity to conjure up those spirits of resistance, old and new, and put them to work for one last heave.”

I’ll have some of whatever Rory’s on. But seriously I think we need some realignment and a transfusion of new energies in order to achieve ‘one last heave’, but he’s essentially right. Channeling the anger that this judgement has evoked is key, as new (old) relations are laid out before us and eyes are opened. If the smarter pens amongst the Unions commentariat have figured out that this is completely unsustainable, then we are getting somewhere. The heavy lifting of resolving and transcending intractable problems does not lie with politicians alone.