A briefing paper on the Anglo-Irish Treaty, 1921
What did the Court have to decide?
The Scottish Government has drafted – but not formally introduced – a Bill to hold a second referendum on independence. The legislative powers of the Scottish Parliament are limited by the Scotland Act 1998. While it can legislate on devolved matters, for example health and education, it cannot pass bills relating to matters “reserved” to the UK Parliament.
Reserved matters include aspects of the constitution, such as the 1707 Union of Scotland and England and the Westminster Parliament. Under the 1998 Act, a bill’s provisions are beyond the Scottish Parliament’s powers if they “relate to” a reserved matter.
The UK Government said the draft Bill was outside the Scottish Parliament’s powers, so the Lord Advocate (the Scottish Government’s senior law officer) asked the Supreme Court to decide. She did this by making a “reference” of the draft Bill under Schedule 6 of the 1998 Act. This permits what are called “devolution issues” to be referred directly to the Supreme Court.
In written and oral submissions to the Court, the Lord Advocate argued, on behalf of the Scottish Government, that as the Bill had no direct legal effect then it did not relate to a reserved matter.
The Advocate General for Scotland (the UK Government’s legal adviser) disagreed that Schedule 6 allowed the Lord Advocate to make such a reference. If, however, the Court accepted it, he argued that even without direct legal effect, the Scottish Government’s draft Bill would still relate to reserved matters.
The Court therefore had two issues to consider. First, whether the Lord Advocate’s reference was permissible and, if it was, whether the provisions of the draft Bill related to a reserved matter.
What was the judgment?
In a unanimous judgment, the Court accepted the Lord Advocate’s reference was a “devolution issue” as defined in Schedule 6 of the Scotland Act 1998 and therefore accepted it.
On the draft Bill, the Court ruled that even if a referendum had “no immediate legal consequences” it would still “be a political event with important political consequences”:
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.
If the UK Government and Parliament were unwilling to modify those reserved powers (as they did before the 2014 independence referendum) then “the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence”.
Lord Reed, President of the Supreme Court, was clear that the Court had considered a legal question and “could not be asked to give a view on the distinct political question of whether Scotland should become independent from the rest of the United Kingdom”.
The Court also responded to an intervention from the Scottish National Party (SNP). The SNP argued that domestic legislation ought to be interpreted in a way that was compatible with the international legal right to self-determination.
Citing a 1998 case in the Canadian Supreme Court regarding Quebec, the Court ruled that such arguments were limited to situations involving colonies or foreign occupation, “none of which applies to Scotland”.
What happens next?
Responding to the judgment, the First Minister of Scotland Nicola Sturgeon tweeted that she was “disappointed” but respected the Supreme Court’s judgment. She added:
A law that doesn’t allow Scotland to choose our own future without Westminster consent exposes as myth any notion of the UK as a voluntary partnership & makes [the] case for Ind[ependence…] Scottish democracy will not be denied. Today’s ruling blocks one route to Scotland’s voice being heard on independence – but in a democracy our voice cannot and will not be silenced.
At a press conference, the First Minister repeated her request for another section 30 Order (such as that made in 2013). This is the legal means by which an independence referendum could take place.
In the absence of such an Order, Nicola Sturgeon referred to her existing plan to approach the next UK general election as a “de facto” referendum on independence. She announced that a special SNP conference would be held next year to determine her party’s approach to that election.
Finally, the First Minister said she planned to launch a campaign to protect Scottish democracy:
What I’m not prepared to do is to allow Scottish democracy to be a prisoner of Westminster, which effectively means that Scottish democracy doesn’t exist.
This approach has been criticised by Professor James Mitchell, a political scientist at the University of Edinburgh. In June he said: “An election is simply not a referendum, a de-facto referendum or any other kind of referendum.”
How did the UK Government respond?
The Secretary of State for Scotland, Alister Jack, said the UK Government was committed to working with the Scottish Government on the issues that matter most to people in Scotland. On 23 November, he said: “We note and respect the unanimous ruling from the Supreme Court today.”
- House of Commons Library, Scottish independence referendum: legal issues –
- House of Commons Library, Scottish Devolution: Section 30 Orders
About the author: Dr David Torrance is the devolution specialist at the House of Commons Library
A briefing paper on the legal issues surrounding a Scottish independence referendum
There will be a Westminster Hall debate on the potential merits of the devolution of justice to Wales on 29 November 2022 at 9.30am. The debate will be led by Liz Saville Roberts MP.