The UK’s unwritten constitution is tricky, archaic and hard to interpret on occasions without the help of judges. There have been many calls down the ages for a written code like the US’s (and almost everywhere that was once British, including Ireland).
Enter the judgement from the UK Supreme Court on whether Scotland had a unilateral right to call a referendum on Scottish independence. The court finds that calling a referendum falls outside “the legislative competence of the Scottish Parliament”.
More importantly the judgement finds that such a measure could result in “the ending the Union and the sovereignty of the United Kingdom Parliament over Scotland”, and therefore such a matter must be reserved to Westminster.
Most importantly (for Scotland and Northern Ireland), on the question that the referendum envisaged in Scotland would only be advisory and not therefore trigger an immediate obligation to follow through the judgement has this to say:
The Bill’s effect will not be confined to the holding of the referendum. Even if the referendum has no immediate legal consequences, it would be a political event with important political consequences [78-81]. It is therefore clear that the proposed Bill has more than a loose or consequential connection with the reserved matters of the Union of Scotland and England and the sovereignty of the United Kingdom Parliament. Accordingly, the proposed Bill relates to reserved matters and is outside the legislative competence of the Scottish Parliament [82-83], .
This is the crux. If leaving the UK is a political matter then triggering a referendum on a senior constitutional matter (even an advisory one, as we have seen from the 2016 EU referendum) likely to trigger events entirely out of the control of Westminster.
Consent at Westminster therefore is the critical trigger in either case. Yes, we have it in writing that a pair of referendums are the legitimate way out but what few seem to understand is Westminster must consent to it in the first place.
What the judgement does is spell out the reality of devolution under this otherwise unwritten UK constitution.
It explains why a #BorderPoll remains at the discretion of the Secretary of State for #NorthernIreland and is therefore unlikely to be used for at least another generation, regardless of the stream of are little more than lobbying statements to the contrary.
What too few people yet seem to understand is that devolution is not seen in England, Wales and Scotland as an interesting experiment in power-sharing but as a way of helping the island of Ireland to regulate its own stormy relations.
So if the calling of a border poll is a political matter for Westminster, when do we think it is likely a Westminster government is going to call one if the optimal outcome for unity is likely to be 50%+1? The quickest way home is the longest way round.
Devolution is an unpleasant reality for most of its participants, who have looked upon having to work with their generational enemies as an repulsive medicine someone else is forcing them to take, rather than an opportunity to be shared.
But without an alternative (and have you noticed how NI’s political actors seem long on criticism of each other but short on outlining other viable options?) devolution is here to stay. And Westminster still has the key to the door.
Mick is founding editor of Slugger. He has written papers on the impacts of the Internet on politics and the wider media and is a regular guest and speaking events across Ireland, the UK and Europe. Twitter: @MickFealty