Supreme Court's Scottish referendum verdict doesn't end Sunak’s need for a union strategy

The Supreme Court has ruled definitively that a referendum on Scottish independence cannot take place without Westminster agreement, dashing Scottish first minister Nicola Sturgeon’s plans to hold a vote in October 2023.  

The judgment will have been welcomed in Downing Street, but the court ruling doesn’t end the debate and the SNP will place independence at the centre of their next general election campaign. So for unionists, this should be a moment for reflection not triumphalism. 

The UK government should ask itself why around half of Scots – including a clear majority of under-30s – favour independence. And, as prime minister, Rishi Sunak should consider what he can do to reset relations with Edinburgh (and Cardiff and Belfast), rethink how the Westminster works with the UK’s devolved administrations, and rebuild trust in the union. 

The prime minister should commit to protect devolution 

One urgent task for Mr Sunak is to persuade voters that devolution is safe in his hands. Nicola Sturgeon’s argument that the devolution settlement is at risk of erosion is the part of her pitch that resonates furthest beyond her nationalist base. And that is because there is truth to the claim. Under Boris Johnson, there was a deliberate shift towards ‘muscular unionism’, with Whitehall departments encouraged to expand their footprint across the UK. 

For instance, the UK Parliament has started quite frequently to pass laws that affect devolved matters without Scottish and Welsh consent, as is “normally” required under the Sewel Convention. In some cases, for the legislation implementing the Brexit agreement, this was perhaps unavoidable. But Westminster has now fallen into an unwelcome pattern of pushing through contested legislation rather than compromising. This was the case for the UK Internal Market Act and Subsidy Control Act, for instance. Clashes now loom over the levelling up, procurement and retained EU law bills, which empower UK ministers to intervene in various ways in devolved areas. 

The prime minister should publicly commit to taking the Sewel convention seriously, requiring departments to engage early and consistently with devolved counterparts when drafting legislation, and avoiding unwanted encroachment into devolved areas other than in truly exceptional circumstances. There should be no further unilateral changes to the powers of the devolved bodies. 

UK ministers have also taken on new powers to spend money across the UK on matters such as adult education, local growth and transport. Ministers naturally want to demonstrate their commitment to levelling up across the whole country. But this heavy-handed approach risks creating duplication and poor coordination of economic policy, as well as signalling that Westminster is willing to roll back devolution for political gain. 

It makes little practical sense for Whitehall to decide which local road improvement or cultural schemes in Scotland and Wales deserve funding. The UK government should intervene when national action is actually required, for instance to address the cost of living crisis or to ensure long-term energy security. On local and devolved matters, local and devolved leaders should be put back in charge. 

The prime minister should create a new culture of cooperation between UK and devolved bodies 

The second thing Rishi Sunak should do is to follow through on his promise to work in partnership with the devolved governments. He made a reasonable start in this regard – speaking with Nicola Sturgeon and Welsh leader Mark Drakeford shortly after taking office, and then attending a summit with devolved and Irish leaders in Blackpool. These moves marked a difference from his immediate predecessor, with Liz Truss appearing to take pride in snubbing the devolved leaders. 

But there is much more that could be done. The prime minister, working with Michael Gove as minister for intergovernmental relations, should seek to create a new culture of cooperation and information sharing between Whitehall departments and their devolved counterparts. Devolved leaders have often found out about big government announcements – on Brexit, Covid, fiscal policy – very late in the day, or even from news reports.  

This is not just disrespectful, but can also undermine effective government. The devolved bodies cannot develop their own plans properly or consider the impact of pending changes to UK government policy when given no prior warning. 

This shift should go beyond openness and better communication. In areas of shared responsibility, from climate change to public health to transport, there should be a move towards joint development and implementation of policy, learning from federal countries such as Australia and Canada.  

The prime minister should consider the case for further devolution 

Thirdly, the prime minister should be open-minded on the question of whether the balance of power between Westminster and Holyrood is right. It is true that the Scottish parliament is already a powerful legislature that has not made full use of all the powers transferred to it, for instance in relation to social security. But in some areas there could be a case to go further. 

It is important that any further devolution is not offered as a gesture to ‘buy off’ supporters of independence. Rather, it should be guided by evidence and assessment of whether constitutional change could improve social and economic outcomes. 

For instance, should the Scottish parliament be given fuller borrowing powers to invest in infrastructure or to deal with economic shocks? Should it gain power over drugs policy to tackle Scotland’s huge substance abuse problem? What about the ability to issue work permits, in light of Scotland’s distinct demographic challenges? Similarly for Wales, the government should consider the case for devolution of policing, so crime reduction strategy can be better aligned with policy on public health and children’s services. 

None of these initiatives on their own will be enough to change the political weather in Scotland. But taken together, they could form the basis for a new strategy for the union, which the UK government so clearly needs in the long run-up to the general election.