COLLISION COURSE: SUPREME COURT JUDGES SAY ‘NO’ TO SCOTTISH REFERENDUM
The Scottish Government has made a reference to the Supreme Court to establish whether the Scottish Parliament has the power to hold an independence referendum.
The case was heard on the 11th and 12th of October and the verdict was made public this morning – Wednesday 23 November.
TIME FOR SCOTLAND RALLY
THE SUPREME COURT JUDGEMENT:
Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998
UKSC 31
Date:23 November 2022
Justices
Lord Reed (President), Lord Lloyd-Jones, Lord Sales, Lord Stephens and Lady Rose
Background to the Appeal
The Scottish Government has drafted a Scottish Independence Referendum Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?”. Under the Scotland Act 1998 (“the Scotland Act”), the power of the Scottish Parliament to make legislation (or its “legislative competence”) is limited.
A provision of a Bill will be outside the legislative competence of the Scottish Parliament and therefore not law if it relates to the matters which have been reserved to the United Kingdom Parliament in Westminster (sections 29(1) and (2)(b)). These reserved matters include “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5, paragraphs 1(b) and (c)).
In this reference, the Lord Advocate (the senior law officer of the Scottish Government) asks the Court whether the provision of the proposed Bill which provides for a referendum on Scottish independence would be outside the legislative competence of the Scottish Parliament because it relates to either or both of the reserved matters of the Union or the United Kingdom Parliament.
This is a legal question about the Scottish Parliament’s power to make legislation under the Scotland Act. The Court is not being 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 powers of the Scottish Parliament were not in issue during the 2014 referendum on Scottish independence. This is because, in 2013, an Order in Council under section 30(2) of the Scotland Act modified the definition of reserved matters to enable the Scottish Parliament to pass the 2014 referendum legislation. The United Kingdom Government is currently unwilling to agree to the making of another Order in Council to facilitate another referendum on Scottish independence.
The Lord Advocate’s reference was made under paragraph 34 of Schedule 6 to the Scotland Act. The Advocate General for Scotland (the Scottish law officer of the United Kingdom Government) raises two preliminary issues, namely, whether the Court can and should answer the reference.
There are consequently three questions which the Court must consider. First, is the question referred by the Lord Advocate a “devolution issue”? If not, it cannot be the subject of a reference under paragraph 34 of Schedule 6, which would mean that the Court does not have jurisdiction to decide it. Secondly, even if it is a devolution issue, should the Court exercise its discretion to decline to accept the reference? Thirdly, if the Court accepts the reference, how should it answer the question the Lord Advocate has referred to it?
Judgment
In a unanimous judgment, the Court answers the questions before it as follows. First, the question referred by the Advocate General is a devolution issue, which means that that the Court has jurisdiction to decide it.
Secondly, the Court should accept the reference. Thirdly, the provision of the proposed Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?” does relate to matters which have been reserved to the Parliament of the United Kingdom under the Scotland Act.
In particular, it relates to the reserved matters of the Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom.
Accordingly, 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.
Reasons for the Judgment
Issue 1: Is the question referred by the Lord Advocate a devolution issue?
Only a “devolution issue” can be referred to the Court under paragraph 34 of Schedule 6 to the Scotland Act. The term “devolution issue” is defined by paragraph 1 of Schedule 6. Under paragraph 1(f), it includes “any other question arising by virtue of this Act about reserved matters” [13-14]. The Court concludes that the question referred by the Lord Advocate falls within this description and is therefore a devolution issue which the Court has jurisdiction to decide [47].
In reaching this conclusion, the Court holds, first, that the question referred is one “arising by virtue of” the Scotland Act because it is a question which arises under section 31(1) for the person wishing to introduce the Bill into the Scottish Parliament [16]. That person is required, on or before the Bill’s introduction, to give a statement confirming that, in their view, the provisions of the Bill would be within the legislative competence of the Scottish Parliament [9]. Secondly, the existence of the separate scheme for the scrutiny of Bills for legislative competence by the Court in section 33 of the Scotland Act does not prevent a reference from being made under paragraph 34 of Schedule 6 in relation to a proposed Bill, before it is introduced [21-27]. Thirdly, the terms of paragraph 1(f) of Schedule 6 are very wide. They are intended to sweep up any questions arising under the Scotland Act about reserved matters which are not covered elsewhere [37-42]. Fourthly, 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 [44-46].
Issue 2: Should the Court decline to accept the Lord Advocate’s reference?
The Court concludes that it should accept the reference [54]. The reference has been made in order to obtain an authoritative ruling on a question of law which has already arisen as a matter of public importance. The Court’s answer will determine whether the proposed Bill is introduced into the Scottish Parliament. The reference is not therefore hypothetical, academic or premature [53].
Issue 3: Does the proposed Bill relate to reserved matters?
The question whether the provision of the proposed Bill which provides for a referendum on Scottish independence would relate to matters which have been reserved to the United Kingdom Parliament under the Scotland Act (section 29(2)(b)) is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances (section 29(3)) [56-57], [70], [75].
A provision will relate to a reserved matter if it has something more than a loose or consequential connection with it [57], [71-72]. The purpose and effect of the provision may be derived from a consideration of both the purpose of those introducing the legislation and the objective effect of its terms [73]. Its effect is not restricted to its legal consequences [74].
Applying this test, the reserved matters which are relevant here are “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5, paragraphs 1(b) and (c)). The latter reservation includes the sovereignty of the United Kingdom Parliament [76]. The purpose of the proposed Bill is to hold a lawful referendum on the question of whether Scotland should become an independent country, that is, on ending the Union and the sovereignty of the United Kingdom Parliament over Scotland [77], [82]. The Bill’s effect will not be confined to the holding of the referendum. Even if the referendum has no immediate legal consequences, it would be a political event with important political consequences [78-81]. 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. Accordingly, the proposed Bill relates to reserved matters and is outside the legislative competence of the Scottish Parliament [82-83], [92].
The Scottish National Party (intervening) made further written submissions founded on the right to self–determination in international law and the principle of legality in domestic law [84]. The Court rejects these submissions, holding that the right to self–determination is not in issue here [88-89] and does not require a narrow reading of “relates to” in section 29(2)(b) so as to limit the scope of the matters reserved to the United Kingdom Parliament under the Scotland Act [90]. Similarly, the allocation of powers between the United Kingdom and Scotland under the Scotland Act does not infringe the principle of legality [91].
References in square brackets are to paragraphs in the judgment
Note
This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available online. Decided cases
The UK Supreme Court has today determined that the draft Scottish Independence Referendum Bill is outside the powers of the Scottish Parliament.
The Secretary of State for Scotland, Alister Jack, said that the UK Government was committed to working with the Scottish Government on the issues that matter most to people in Scotland.
Alister Jack said: “We note and respect the unanimous ruling from the Supreme Court today.
“People in Scotland want both their governments to be concentrating all attention and resources on the issues that matter most to them. That’s why we are focussed on issues like restoring economic stability, getting people the help they need with their energy bills, and supporting our NHS.
“Today alone, 11.6 million UK pensioners – around one million in Scotland – are starting to receive up to £600 to help with their energy bills this winter.
“As the Prime Minister has made clear, we will continue to work constructively with the Scottish Government in tackling all the challenges we share and face.”
NICOLA STURGEON’s RESPONSE:
“Earlier today, the Supreme Court delivered its judgment on the Lord Advocate’s reference, seeking clarity on whether or not the Scotland Act 1998 allows the Scottish Parliament to legislate for a referendum on independence.
“First of all – while I am obviously very disappointed by it – I respect and accept the judgment of the Court. In securing Scotland’s independence we will always be guided by a commitment to democracy and respect for the rule of law.
“That principle also reflects a practical reality – the route we take must be lawful and democratic for independence to be achieved. And as is becoming clearer by the day, achieving independence is not just desirable – it is essential if Scotland is to escape the disaster of Brexit, the damage of policies imposed by governments we don’t vote for, and the low growth, high inequality economic model that is holding us back.
“However, we must be clear today that the Supreme Court does not make the law – it interprets and applies it. If the devolution settlement in the Scotland Act is inconsistent with any reasonable notion of Scottish democracy – as is now confirmed to be the case – that is the fault of Westminster lawmakers, not the justices of the Supreme Court.
“In addressing the implications of today’s ruling, it is also important to be mindful of what the Court was not asked to decide and therefore what the ruling does not tell us.
“The Court was not asked to decide if there is a democratic mandate for a referendum. The mandate and parliamentary majority for a referendum is undeniable.
“Nor was the Court asked if Scotland should be independent. Only the Scottish people can be the judge of that. And it was not asked if there is any democratic means by which Scotland can choose independence.
“The question the Court was asked to decide – the only question the court could reasonably answer – was a narrower one. Would a Bill providing for an advisory referendum on independence be within the current powers of the Scottish Parliament?
“In other words, can the Scottish Parliament legislate for an independence referendum without the prior agreement of Westminster? The Court has answered that question in the negative.
“It has determined that under the Scotland Act 1998 – which encapsulates the current devolution settlement – even an advisory referendum asking the question “Should Scotland be an independent country?’ is a matter reserved to the Westminster Parliament.
“What that means is that without an agreement between the Scottish and UK governments for either a section 30 Order or a UK Act of Parliament to change its powers, the Scottish Parliament cannot legislate for the referendum the people of Scotland have instructed it to deliver.
“That is a hard pill for any supporter of independence – and surely indeed for any supporter of democracy – to swallow. However, as I said back in June when I informed Parliament that the Lord Advocate had agreed to make this reference, it was always the case that in the absence of an agreement with the UK government, the question of the Scottish Parliament’s competence in relation to a referendum would end up in the Supreme Court – if not before legislation then certainly after any decision by Parliament to pass a Bill.
“So while it is a statement of the obvious that this is not the outcome I hoped for, it does give us clarity. And having that clarity sooner rather than later allows us now to plan a way a forward, however imperfect it might be. Now, I am enough of a realist to know that the immediate questions posed by today’s judgment will be for me and the SNP.
“I am also long enough in the political tooth to expect some triumphalism on the part of unionist politicians. However, unionists of a more thoughtful disposition will, I suspect, know that to be misguided.
“Indeed, they will have been hoping that the Court – as the UK government asked it to do – would have declined to answer the substantive question today.
“That is because they will understand that this judgment raises profound and deeply uncomfortable questions about thebasis and future of the United Kingdom. Until now, it has been understood and accepted – by opponents of independence as well as by its supporters – that the UK is a voluntary partnership of nations.
“The Royal Commission on Scottish Affairs back in 1950 said this: “Scotland is a nation and voluntarily entered into the Union as a partner”.
“That sentiment was echoed nearly 60 years later by the cross-party Calman Commission which described the UK as “a voluntary union and partnership”.
“And it was reinforced in 2014 by the Smith Commission which made clear that “nothing in its report prevented Scotland becoming an independent country should the people of Scotland so choose”.
“What today’s ruling tells us, however, is that the Scotland Act does not in fact uphold that long held understanding of the basis of the relationships that constitute the UK – on the contrary, it shatters that understanding completely.
Let’s be blunt: a so-called partnership in which one partner is denied the right to choose a different future – or even to ask itself the question —cannot be described in any way as voluntary or even a partnership at all. So this ruling confirms that the notion of the UK as a voluntary partnership of nations is no longer, if it ever was, a reality.
“And that exposes a situation that is quite simply unsustainable. In the words of former Tory Prime Minister, John Major: ‘No nation could be held irrevocably in a Union against its will’.
“Indeed, perhaps what today’s judgment confirms more than anything else, is that the only guarantee for Scotland of equality within the British family of nations is through independence – that fact is now clearer than ever before.
“The immediate question, of course, is what happens now. Obviously, I am making these remarks just a couple of hours after the Court issued its judgment.
“While the terms and import of the judgment are clear it will still be important to absorb and consider it fully. I think it is safe to predict that this will not be my last word on the matter.
“However, my initial views – building on what I said in June – are as follows. First of all, it is worth repeating that the Court judgment relates to one possible route to Scotland making a choice on independence – a referendum Bill in the Scottish Parliament without Westminster agreement.
“While it is absolutely the case – if the UK was a voluntary partnership – that this would not be needed, it remains open to the UK government, however belatedly, to accept democracy and reach agreement.
“I make clear again today, therefore, that I stand ready at any time to reach agreement with the Prime Minister on an adjustment to the devolution settlement that enables a lawful, democratic referendum to take place – a process that respects the right of people in Scotland to choose their future, in line with the mandate of the Scottish Parliament, lets politicians make the case for and against independence and, crucially, allows the Scottish people to decide.
“What I will not do is go cap in hand. My expectation, in the short term at least, is that the UK government will maintain its position of democracy denial. That position is, in my view, not just unsustainable – it is also utterly self-defeating.
“The more contempt the Westminster establishment shows for Scottish democracy, the more certain it is that Scotland will vote Yes when the choice does come to be made.
“As for that choice – and for the avoidance of any doubt – I believe today, just as I did yesterday, that a referendum is the best way to determine the issue of independence.
“The fact is, the SNP is not abandoning the referendum route. Westminster is blocking it. And in that scenario, unless we give up on democracy – which I, for one, am not prepared to do – we must and will find another democratic, lawful and constitutional means by which the Scottish people can express their will.
“In my view, that can only be an election. The next national election scheduled for Scotland is the UK General Election, making it both the first and the most obvious opportunity to seek what I described back in June as a de facto referendum.
“As with any proposition in any party manifesto in any election, it is up to the people how they respond. No party can dictate the basis on which people cast their votes. But a party can be – indeed should be – crystal clear about the purpose for which it is seeking popular support.
“In this case, for the SNP, it will be to establish – just as in a referendum – majority support in Scotland for independence, so that we can then achieve independence. That, then, is the principle.
“However, now that the Supreme Court’s ruling is known, and a de facto referendum is no longer hypothetical, it is necessary to agree the precise detail of the proposition we intend to put before the country – for example, the form our manifesto will take, the question we will pose, how we will seek to build support above and beyond the SNP, and what steps we will take to achieve independence if we win.
“As you would expect, I have views on all of that. However, given the magnitude of these decisions for the SNP, the process of reaching them is one that the party as a whole must be fully and actively involved in.
“I can therefore confirm that I will be asking our National Executive Committee to convene a special party conference in the new year to discuss and agree the detail of a proposed de facto referendum.
“In the meantime, the SNP will launch and mobilise a major campaign in defence of Scottish democracy. For we should be in no doubt – as of today, democracy is what is at stake. This is no longer just about whether or not Scotland becomes independent – vital though that decision is.
“It is now more fundamental – it is now about whether or not we have the basic democratic right to choose our own future. Indeed, from today, the independence movement is as much about democracy as it is about independence.
“To conclude, I am well aware that there will be a real sense of frustration and disappointment today in both the SNP and the wider movement. I share it. My message, though, is this: while that is understandable, it must be short lived. And I believe it will be.
“Indeed, I suspect we will start to see just how short lived in the strength of the gatherings planned for later today in Edinburgh and other parts of Scotland. The fact is we have work to do.
“The case for Scotland becoming independent is more compelling and urgent than ever. Independence is now essential because of what Westminster control means, on a day-to-day basis, for people in this country, and for future generations.
“Thanks to Westminster control, the UK economy is in crisis – and we are entering a new age of Tory austerity. Low-income households in the UK are now 22 per cent poorer than their counterparts in France, and 21 per cent poorer than in Germany.
“To put that in context – it means the living standards of the lowest-income households in the UK are £3,800 lower than their French equivalents. Thanks to Westminster control, we are subject to an immigration and asylum system that neither works in practice, nor serves our need to grow our population.
“It mistreats those who come to our shores looking for sanctuary from oppression, and deprives us of the talents and taxes of those who want to live, work and contribute to our country. Thanks to Westminster control, even the limited measure of self-government that devolution provides is no longer guaranteed.
“The steady erosion of the powers of our Parliament, the undermining of the Sewel Convention, the imposition of the UK Internal Market Act, and now the Retained EU law Bill.
“And if we stick with Westminster control we are stuck outside the European Union permanently. And that comes at a heavy cost.
“According to the Office for Budget Responsibility, Brexit will mean in the long-run a fall in national income of 4 per cent compared with EU membership. That is equivalent to a cut in public revenues in Scotland of £3.2 billion.
“All the main Westminster parties now support a Brexit that Scotland did not vote for. And the Brexit conspiracy of silence that exists between them means the UK economy will become weaker, and people will pay a heavier and heavier price.
“That price will be paid in hard economic terms – but also in the narrowing of horizons and loss of opportunities for the generations to come. Scotland can do better than this.
“The example of independent countries across Europe and the world, many with nowhere near the assets and strengths we have, tells us that loudly and clearly. We hear from Westminster that what is needed is stability.
“But let’s be clear – the Westminster system has shown that it is not capable of securing stability. The people relying on food banks are not being offered stability.
“Those across our country afraid to switch on their heating are not being offered stability. The businesses struggling with Brexit are not being offered stability. The young people denied the rights and opportunities of EU membership are not being offered stability.
“A UK economic model which delivers low growth and low productivity coupled with sky high rates of poverty and inequality does not, and never will offer stability. Scotland can do so much better. So, yes, of course, this judgment is a disappointment. But it is not one we can or will wallow in.
“Indeed, getting the judgment now rather than later gives us the clarity we need to plot a definite way forward. Fundamentally, our job today is the same as it was yesterday. It is to persuade a majority of the Scottish people of the fact that independence is the best future for Scotland – and ensure a democratic process that allows majority support to be established beyond doubt.
“That job is not easy, I know – on some days, like today perhaps, it feels more difficult than ever. But nothing – nothing – worth doing is ever easy. There is no doubt in my mind that independence will be worth it. And my resolve to achieve independence is as strong as it has ever been. Indeed, it is if anything even stronger. Prosperity, equality, internationalism – and now, without any doubt, the very democracy of our nation – depends on independence.”
ALBA part leader Alex Salmond:
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