There are no legal routes to independence. We cannot challenge the British government over its refusal to grant a Section 30 because there is no mechanism in law with which to do this, and there is no constitutional requirement of the British government to do it either. This was always a fiction. Scotland does not have the same relationship of consent with the London government the people of the north of Ireland have in the Good Friday Agreement. Britain does not legally require the consent of the Scottish people to government Scotland.
The ruling of the Supreme Court offers Scotland and Scotland’s elected representatives – the only representatives of the sovereignty of the Scottish people – a whole new set of opportunities. British government attempts to stifle the Scottish government can now be challenged in the Supreme Court and retarded by the precedent this sets. In principle, it removes from the British government the assumed right to grant or withhold permission for constitutional referenda in Scotland, voted for by the Scottish parliament and Scottish MPs in the House of Commons.
In sum, for as long as Scotland and its valuable natural resources are of economic and strategic value to the British state, the law will function to preserve the integrity of the British state – even if that means denying the democratic will of the majority of Scottish people. The familiar argument against this assertion; that we had an independence referendum in September 2014, is a facile one. Scotland was granted an independence referendum in 2012 by David Cameron, a serial gambler, in the assumption we would lose.
If the Scottish government hopes to defend our voice in London then it has no option but to stick to its guns, forcing the British government to ignore us and take us from the EU without our consent. Only then will we be in a position to resist and protect our sovereign democratic will – even if that means seeking independence. The moment we support a People’s Vote we accept the result that was made for us and thereby lose the high ground we currently hold.
When the Advocate General says Westminster is sovereign and the Scottish parliament is not he is presuming a definition of sovereignty which is fundamentally foreign to the Scottish national constitution. More than this, he is assuming a unicity – a singular notion of sovereignty and power in a singular British state – that has never before been made explicit. He is giving England’s idea of sovereignty priority over that of Scotland. This engenders a worrying logical problem; unicity renders the heretofore existing duality of legal understandings impossible.