A Supreme Skirmish

I'm slightly concerned to see it being claimed that the Scottish Government have won a "major victory" in their legal tussle with London over an independence referendum.  First of all, it's not a major victory, it's just the outcome of a preliminary skirmish. But more to the point is that legal rulings should never be how we define victory or defeat.  If we celebrate and bestow importance upon the Supreme Court rejecting London's call for the Lord Advocate's referral to not even be considered, we would logically have to bestow even greater importance on London eventually winning the substantive case, which remains likely.  That's not what should matter to us.  We're looking to win a mandate for independence from the Scottish people, not from a handful of conservative judges hundreds of miles away.

That said, the Supreme Court's decision is a relief.  If it had gone the other way, the impression would have been that Nicola Sturgeon's strategy had already failed, because she clearly wanted the theatrics of a televised court defeat to justify moving on to a plebiscite election.  With the Supreme Court refusing to even adjudicate on whether a referendum is legal, she would have been left with an embarrassing choice between just two options - either a) hurriedly replace the Lord Advocate with someone willing to certify the Referendum Bill as legal, or b) declare that the Supreme Court refusing to make a decision is identical to them striking down a referendum, and proceed with a plebiscite election anyway.  I presume she would have plumped for the latter, but her reasoning would have rung a bit hollow.

I'm more than happy to criticise Ms Sturgeon when it's justified, but I do think it's a tad unfair to criticise her for throwing away the chance of a consultative referendum by allowing the Supreme Court to set a precedent by ruling that such a referendum can only be held with Westminster's permission.  The reality is that there's no way of attempting to hold a referendum without risking the Supreme Court striking it down and setting a nasty precedent.  This moment was always going to have to arrive - it couldn't be averted, unless we had jumped straight to a plebiscite election.  Admittedly, it would have been preferable for the Scottish Government to pass referendum legislation and then wait for it be challenged, rather than effectively challenge their own law.  But the outcome would almost certainly have been identical - remember that the Supreme Court had no qualms about striking down legislation that had already been passed unanimously by the Scottish Parliament.

In any case, I'm not sure we should be scared of a legal precedent that essentially renders any future independence referendum impossible, because that would put an end once and for all to "once in a generation".  We would then revert to the pre-1999 position of seeking an outright mandate for independence via a scheduled election - and there's never longer than five years to wait for the next scheduled election.

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We've already seen since Nicola Sturgeon's announcement that the overwhelmingly unionist mainstream media are attempting a 'shock and awe' campaign to try to kill off independence - and the misuse of polling is playing a key part in that.  If you'd like to balance things out with polling commissioned by a pro-independence outlet and which asks the questions we want to see asked, one way of doing that would be to help Scot Goes Pop's fundraising drive - see details below.

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