On 23rd November 2022 the UK Supreme Court issued a landmark ruling on the issue of devolution and the right of the Scottish Parliament to legislate to hold an independence referendum. So, what did the Supreme Court judge on this issue and why is this significant?
What is the background to this case?
In 1998 the Scotland Act granted a devolved legislature and devolved powers to Scotland. In 2007, the SNP became the largest party in the Scottish Parliament and in 2011 won a majority in the Scottish Parliament, a remarkable achievement given the Additional Member System deployed for Scottish Elections. With their clear mandate, the Scottish Government asked the Westminster Parliament to agree to a Scottish Independence Referendum and the Edinburgh Agreement was reached between the Scottish and UK Governments that said a referendum should be held before the end of 2014. Subsequently, in September 2014 the Scottish Independence Referendum was held. This was resulted in a vote of 55.30% of the Scottish electorate choosing that Scotland should remain as part of the UK. At the time, this was called by Alex Salmond, the then SNP Leader, a ‘once in a generation’ vote. The decisive result in 2014 appeared to have settled this issue.
However, calls for a second Scottish Independence referendum grew after the British voted to leave the European Union. In Scotland, 62% of voters cast a vote for Britain to remain in the EU and there was a sense that Scotland was being dragged out of the EU against its will. Indeed, in the 2014 referendum one of the arguments put forward by the Better Together campaign was that if Scotland left the UK it would also have to leave the EU. As such, momentum grew in nationalist circles for a second Scottish Independence Referendum, informally known as indyref2.
What is the difference between reserved and devolved powers?
When the Scottish Parliament was created only certain powers were devolved powers – powers that were within their jurisdiction. These powers included education policy, health policy and environmental powers. Other powers, known as reserved powers, remain within the jurisdiction of the Westminster Government. These include foreign policy, military policy and, importantly, constitutional policy. This is why, for instance, the Edinburgh Agreement had to be reached before the 2014 Scottish Independence Referendum could take place.
What was the legal case about?
In April 2019 the SNP leader Nicola Sturgeon proposed that Scotland should have a second independence referendum before the end of May 2021. However, the British Government refused to grant constitutional permission for the Scottish Parliament to hold a referendum.
In January 2020 the Referendums (Scotland) Act 2020 was passed by the Scottish Parliament. This act laid out the basis for any future referendum held by the Scottish Government, including the proposed indyref2. Following this the Scottish Parliament also passed a motion endorsing a new referendum by 64 votes to 54 votes – a clear indication of the intent of the Parliament.
In 2021 the SNP won the Scottish Parliamentary election again and, following a deal with the independence supporting Scottish Greens, formed another majority government. On the 28th of June 2022 the Scottish Government announced that it intended to hold indyref2 on the 19th of October 2023 and published a draft Scottish Independence Bill. The proposed referendum question remained the same as in 2014. Nicola Sturgeon wrote to the British Prime Minister Boris Johnson asking for constitutional permission to hold the referendum – this was again rejected.
Subsequently, the Lord Advocate (the senior legal officer in the Scottish Government) made a referral to the UK Supreme Court to test whether the Scottish Parliament had the constitutional power to pass the Scottish Independence Bill and the case was adjudged by the Supreme Court on the 23rd of November 2022.
What judgment did the UK Supreme Court make?
A key role of the UK Supreme Court is arbitrating in disputes regarding devolution. The case it judged on the 23rd of November 2022 is undoubtedly the most significant case that it has heard regarding the devolution settlements.
Put simply, the Lord Advocate asked the Supreme Court to consider whether the bill it proposed was within the legislative competence of the Scottish Parliament.
In its judgement, the court said that even if the bill itself had no binding effect (as the UK Government would have to accept any referendum outcomes), it would still have political power:
“A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom Government had not given any political commitment to act upon it. A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate. The clear expression of its wish either to remain within the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement. It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.“Supreme Court Judgement
In addition, on the primary issue, the court ruled unanimously that the Scottish Government does not have any power to legislate for the referendum on Scottish Parliament which is a reserved power of the UK Parliament:
“Turning, then, to the question whether the Bill relates to the Union, and determining that question by reference to the purpose of the Bill, having regard to its effect in all the circumstances, we are in no doubt as to the answer. It is plain that a Bill which makes provision for a referendum on independence – on ending the Union – has more than a loose or consequential connection with the Union of Scotland and England. That conclusion is fortified when regard is had to the effect of such aSupreme Court Judgement
referendum…For these reasons, we reject the Lord Advocate’s submissions that the proposed Bill does not relate to reserved matters.“
Later in its judgement, the Supreme Court dismissed an intervention by the Scottish National Party that argued that under the principle of self-determination the Scottish Parliament must be allowed to hold a referendum:
“The Scotland Act allocates powers between the United Kingdom and Scotland as part of a constitutional settlement. It establishes a carefully calibrated scheme of devolution powers. Nothing in the allocation of powers, however widely or narrowly interpreted, infringes any principle of self-determination.”Supreme Court Judgement
This clear judgement by the UK Supreme Court effectively ends any route to a second referendum without the explicit consent of the UK Parliament.
How will the SNP react to this decision and what will their next steps be?
Before referring the case to the Supreme Court, the SNP Leader Nicola Sturgeon has said that winning the case, and having a clear constitutional roadmap to a referendum, was her preferred case. However, she also announced a back-up option. She said that if the case failed then she would turn the next UK General Election into a de facto referendum. Sturgeon has said she will do this by limiting the SNP manifesto to a single line that calls for Scotland to become an independent country. If over 50% of the Scottish electorate vote for the SNP at the next election, Sturgeon would then claim a mandate for independence and look to force the UK Government to negotiate. It must be noted, however, that whilst this might place political pressure on the UK Government, they would be under no constitutional obligation to see such a vote as a mandate for independence. It is also worth noting that the highest proportion of votes won by the SNP at a UK General Election is 45% in 2019, making the de facto referendum plan a high hurdle.
The UK Supreme Court ruled in November 2022 that the Scottish Parliament did not have the power to hold a referendum on Scottish Independence. However, the SNP have said they will turn the next UK General Election into a de faction referendum on independence.
Scottish National Party (SNP) – The main political party in Scotland that calls for Scottish Independence. They have been in power in Scotland since 2007.
Additional Member System – A voting system that achieves proportionality by having two voting systems, with some members elected under FPTP and some elected under the CPL system.
Devolved Powers – Powers which can be carried out by a devolved institution.
Reserved Powers – Powers which cannot be carried out by a devolved institution, and instead only by the central government.
Edinburgh Agreement – The agreement between the UK and Scottish Governments’ that agreed to a Scottish Independence Referendum.
Scottish Independence Referendum (2014) – The referendum that took place in September 2014 that saw 55% of Scots opt to remain in the UK.
IndyRef2 – The short-hand name for a proposed second Scottish Independence Referendum.
UK Supreme Court – The highest court in the UK for both civil and criminal matters.
De Facto Referendum – An informal and unauthorised referendum that uses other electoral means to indicate a policy preference.