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Supreme Court: What SNP insiders are saying about the independence referendum ruling

Nicola Sturgeon waves to delegates at the SNP autumn conference in Aberdeen

Supreme Court: What SNP insiders are saying about the independence referendum ruling

What does the Supreme Court decision mean for the SNP? That depends on who you ask.

For some, there's confirmation of what they expected – the Supreme Court would not rule in their favour – while for others, there's a sense of surprise that it ruled quite so far against.

Of all the verdicts open to the Supreme Court – effectively yes, no, mibbe and not right now – three offered the potential for Scottish Parliamentary legislation, but instead of green or even amber, the justices gave the red light. "I'm actually a bit surprised," one MP told Holyrood. "I expected the court to come back and say 'you're premature, the [referendum] bill hasn't been passed', but they've given a straight 'no, fuck off and get in the sea'."

The unanimity of the ruling, and the line taken, was "unexpectedly decisive", according to Durham University public law expert Professor Aileen McHarg, but her view is that the rejection of the SNP's submissions on the right to self-determination in international is not unsurprising.

For her part, Joanna Cherry MP – the same Cherry who won a Supreme Court victory over the UK Government's unlawful prorogation of parliament in 2020 – has said she is "puzzled by the court's suggestion that the principle of self-determination is 'not in play here'".

Scotland is "an ancient nation which was a state in its own right before it entered into a consensual union with England in 1707," she said in a statement. "Are the UKSC [UK Supreme Court] saying Scotland is perpetually trapped by force of law in what was a union of consent?"

But the current bench isn't the same as that which ruled in 2020, one SNP politician said, and is "much more small-c conservative". 

In her afternoon press conference, First Minister Nicola Sturgeon called the ruling "a tough pill to swallow" but said the independence movement will work on another way forward. Announcing the indyref2 push, she had already unveiled her intention to fight the forthcoming general election as a "de facto" constitutional contest, if the referendum plan was found to be unlawful. The SNP will now call a special conference in 2023 to discuss next steps, but Cherry says the intended Constitutional Convention set out by Nicola Sturgeon in 2020 should now be convened. 

That would bring together elected representatives to agree a way forwards and "endorse a modern Claim of Right for Scotland", according to what the FM said two years ago. The pre-devolution Claim of Right argued for a Scottish Constitutional Convention and had cross-party involvement. 

The Alba party wants that too, and in the Scottish Parliament today, Angus Robertson was asked by Green MSP Ross Greer if he agreed that "every vote cast in favour of pro-independence parties" at the 2024 general election "will count towards that mandate for Scotland's independence". "Indeed they would," Robertson said. 

"Angus Robertson couldn't have watched Nicola's press conference," an Alba source told Holyrood. "She was asked that, but she didn't answer and was basically saying that was up to members to decide. All of a sudden, she's hiding behind her members."

No deal has been done between Alba and the SNP – nor would one be likely, given the antipathy between their respective leaders and the schism over Gender Recognition Act (GRA) reform that led so many Alba members to quit the SNP for the newer party. Those factors arguably make any partnership between Alba and the Greens, who reportedly made GRA reform a red line in their deal to prop-up the smaller SNP government in 2021, even more unlikely.

And so the question is how much strategy and direction can come from the snap SNP conference announced by Sturgeon. The move was a "surprise", one party source said, while another told Holyrood: "I get the impression that has come from the back of a fag packet.

"I think that's more about internal party management than anything else. 

"The Westminster group is restless, the activists are restless as well. I don't think saying we'll have a conference is going to cut it."

However, "triumphalism" from political rivals and commentators claiming indy is dead or Sturgeon is humiliated is "misplaced", according to Gordon MP Richard Thomson. The reference to the court, he tells Holyrood, was not a mistake. "It gives clarity on whether roads are available," he says. "We know now that one isn't. It undermines the basis on which the SNP was asked to back devolution in the 1990s. It leaves a strategic dilemma for unionists. They can say we have to respect the court on this point of law, but they are refusing to respect the right of the people of Scotland to choose their own form of government.

"That is the question that is going to keep coming back."

"It sharpens the mind on what the problem is," Dundee City Council leader John Alexander says of the development. "It's that we don't have the respect or ability to make our own decisions.

"It makes a mockery of what the UK Government espouses on the global stage about democracy. So what do we do next? What we need to do is ensure every single democratic process is explored."

The independence question has dominated Scottish politics now for 10 years, since the starting gun was fired for a national conversation two years ahead of the 2014 ballot. This year the Scottish Government announced that it would publish a renewed case for change in the form of ten papers, but the reaction to the first three has been muted at best, with criticism over the level of detail provided, and a reliance on well-established lines.

"A hell of a lot has changed," says Alexander. "Fundamentally, what we believe hasn't changed, but the world is dramatically different.

"In Switzerland, they have no problem in asking the public, on a regular basis, what is the right course of action. We don't need to like the answer, but we should never fear asking the question."

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