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Supreme Court says no to indyref2 without Westminster consent

Posted on 23 November 2022

Today, a panel of five Supreme Court judges unanimously held that the Scottish Government does not have the power unilaterally to legislate for a referendum on Scottish independence. The panel comprised Lord Reed (President), Lord Lloyd-Jones, Lord Sales, Lord Stephens and Lady Rose.

Background

Earlier this year, the Scottish Government drafted a 'Scottish Independence Referendum Bill' which it intended to use as the basis on which to hold a second Scottish independence referendum (colloquially known as "indyref2"), provisionally scheduled to take place in October 2023.

Under paragraph 34, schedule 6 of the Scotland Act 1998, the Lord Advocate, the highest Scottish law lord, has the power to refer to the Supreme Court any "devolution issue which is not the subject of proceedings". Pursuant to this clause, on 28 June 2022, the Lord Advocate asked the Supreme Court to decide whether the provisions of the proposed Bill were outside the legislative competence of Scottish Parliament.

If the Supreme Court found that it did have jurisdiction to consider the referral (i.e. that the matter was, in fact, a "devolution issue"), two further questions would arise: (i) should the Court exercise its discretion and decline to accept the referral from the Lord Advocate (thereby not making a decision on the issue), and (ii) if the Court did accept the referral, how should it answer the questions referred by the Lord Advocate.

The decision

The Court held that the questions referred by the Lord Advocate constituted a "devolution issue" and was, therefore, within its jurisdiction and, in relation to (i) above, that it would accept the Lord Advocate's referral on the basis that it was a question of public importance, and the referral of the issue was not "hypothetical, academic or premature".

As to (ii), the substantive question before the Court, the Court considered paragraph 29(2)(b) of the Scotland Act 1998, which provides that an Act of the Scottish Parliament is not law if it falls outside the legislative competence of the Parliament so far as it relates to "reserved maters". In Schedule 5 of the Scotland Ac 1998, reserved matters include, amongst other things, matters relating to "the Union of the Kingdoms of Scotland and England" and "the Parliament of the United Kingdom". In other words, the Scottish Parliament has limited powers to make legislation relating to the Union of Scotland and England.

The Scottish Government's position was that the referendum itself would be purely 'advisory' and its outcome would have no legal effect on the Union, i.e. by passing the Bill, the Scottish Parliament would not be legislating on the Union. It asserted that the purpose of a referendum would be to "ascertain the wishes of the people of Scotland on their future" and, as such, it would not be right for the Supreme Court to 'speculate' on what the actions of the Scottish Government would be after any vote on independence.

The Supreme Court disagreed with the Scottish Government, and held that the provision in the proposed Bill, which set the grounds for a referendum on the question "Should Scotland be an independent country?", fell within matters reserved to the Parliament of the UK under the Scotland Act. The Court held that, in the absence of any modification of the definition of "reserved matters" (by an Order in Council or otherwise), the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence.

What’s next?

The Scottish National Party's ("SNP") 2021 manifesto includes a pledge to "Choose Scotland's future in an Independence Referendum after the Covid crisis is over." It goes on to assert that "If the democratically elected Scottish Parliament passes the referendum bill and the UK Government then attempts to block it by taking legal action we will victoriously defend the Parliament's will in order to protect the democratic rights of the Scottish people."

It seems, therefore, that the bid for indyref2 is not over.

One proposal posited is that the SNP will call an election, with the question of Scottish independence as the sole campaign issue. It is unclear exactly how this would work when the other parties would likely wish to campaign on broader issues and, given the SNP did not win a majority in the 2021 election, calling an election to decide such a polarising issue could prove risky.

Nicola Sturgeon proclaimed today, in the wake of Court's decision, that "Scottish democracy will not be denied". Today's decision was not unanticipated and so we expect the next weeks will shed light on the SNP's proposed roadmap to achieve its manifesto pledge of indyref2.

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