Only Westminster has the power to authorise a second Scottish Independence referendum

The UK Supreme Court has concluded that it is not within the Scottish Parliament’s legislative competence to hold a referendum on Scottish independence without the consent of Westminster.

The UKSC considered the Lord Advocate’s reference in an accelerated process due to its constitutional significance, hearing arguments on 11 and 12 October and publishing its unanimous decision on 23 November 2022.

UKSC decision

The court determined three issues: (1) whether the question referred by the Lord Advocate is a devolution issue; (2) if it is a devolution issue, whether the court should agree to consider the reference at this time; and (3) the substantive issue of whether it is within the Scottish Parliament’s legislative competence to legislate for a referendum without a section 30 order (the mechanism provided for in the Scotland Act 1998 that would clearly resolve any constitutional law constraints).

1. Devolution issue

Only a “devolution issue” can be referred to the UKSC under paragraph 34 of Schedule 6 to the Scotland Act 1998. The Advocate General submitted that the reference was not a devolution issue and it was not competent for the Lord Advocate to refer the Bill at this stage. The judges rejected the AG’s reasoning and concluded that the question referred is a devolution issue, and that the court accordingly has jurisdiction to decide it. The Court noted that it is consistent with the rule of law and with the intention of the Scotland Act that the Lord Advocate should be able to obtain an authoritative judicial decision on the legislative competence of the Scottish Parliament in advance of the introduction of a Bill

2. Court’s discretion to decline the reference

The Lord Advocate’s reference concerned the competency of the draft Scottish Independence Referendum Bill. Although this legislation is in draft form, the court was assured that all the provisions of the Bill which are material to the question referred would be introduced in the same form as they are in before the court and the court did not consider that it should be concerned about the Bill being materially amended during its passage through the Scottish Parliament. Questions of the reference being brought prematurely, or any decision being hypothetical due to relating to a draft Bill were not found to cause a difficulty here. The judges also commented that it is understandable that the Lord Advocate decided that the legislation should be referred to the UKSC for an authoritative ruling as it raised a matter of public importance. They agreed to determine the reference.

3. Does the draft Scottish Independence Referendum Bill “relate to” the Union of Scotland and England?

The substantive issue to be determined in the reference was whether the draft Scottish Independence Referendum Bill “relates to” the reserved matter of “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom” (sch 5 part I para 1(b) and (c) of the 1998 Act), having regard to its effect in all the circumstances.

The court held that two reserved matters are relevant: the Union, and the United Kingdom Parliament. The purpose of the Bill is to hold a lawful referendum on the question whether Scotland should become an independent country. That question evidently encompasses the question whether the Union between Scotland and England should be terminated, and the question whether Scotland should cease to be subject to the sovereignty of the Parliament of the United Kingdom.

The court had heard arguments that the provisions set out within the proposed Bill, if passed, would not automatically bring the Union to an end.  The purpose of the proposed Bill is to hold a lawful referendum on the question of whether Scotland should become an independent country, i.e. on ending the Union and the sovereignty of the United Kingdom Parliament over Scotland.  Even if the referendum has no immediate legal consequences, it would be a political event with important political consequences (either strengthening or weakening the Union).  In light of this, the court held that the Bill’s effect will not be confined to the holding of the referendum.

The court concluded that 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.

It is equally plain that a Bill which makes provision for a referendum on independence – on ending the sovereignty of the Parliament of the United Kingdom over Scotland – has more than a loose or consequential connection with the sovereignty of that Parliament.

The draft Scottish Independence Referendum Bill does therefore relate to reserved matters and the Scottish Parliament does not have authority to pass the Bill without the consent of the UK Parliament.

What happens next?

The UK Government has made its position abundantly clear: there will be no consent for a second referendum at this time. The SNP has made it equally clear that it plans to continue its quest to see Scotland become in independent country.

The SNP’s plan is to fight the next UK general election on the issue of independence, making it a “de facto referendum”.  The First Minister has called for the SNP National Executive to arrange a special party conference, to be held in the New Year, in order that the party membership can plan their manifesto and next moves, asserting that success in a general election run purely on the independence platform would give an undeniable mandate for Scotland’s independence from the UK. The proposed legal mechanism for implementing such a mandate remains to be seen but a majority vote for the SNP on this basis would certainly increase political pressure.

The latest date for the next UK general election is 24 January 2025. An election may be called sooner by the Prime Minister and, given the political turmoil of past year and the difficult times ahead for the UK, anything could happen.

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