23 November 2022

Conclusions of Supreme Court justices on Scottish independence case

23 November 2022

The UK’s highest court has unanimously ruled that the Scottish Parliament does not have the power to legislate for a second independence referendum.

In a judgment on Wednesday, a panel of five Supreme Court judges concluded that going ahead with a second vote would be beyond the powers of Holyrood, as it related to “reserved matters” under the Scotland Act.

Reading a summary of the ruling at a brief hearing in London, the court’s president Lord Reed said reserved matters “include fundamental aspects of the constitution of the United Kingdom, such as the Union of Scotland and England and the United Kingdom Parliament.

“Accordingly, if legislation would relate to the Union or to the Westminster Parliament, the Scottish Parliament has no power to enact it.”

The panel concluded that “a lawful referendum” on independence 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”.

The judges said in the ruling: “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.”

Lord Reed added in his summary: “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.”

The judge said the court was “not asked, and cannot be asked, to express a view on the political question of whether Scotland should become an independent country.

“Its task is solely to interpret the relevant provisions of the Scotland Act and decide whether the proposed Bill would relate to reserved matters.”

The court rejected an argument made by the Lord Advocate for Scotland, Dorothy Bain KC, that the outcome of a potential independence vote would be “advisory”, rather than “self-executing”, and therefore would not have an automatic legal effect on the Union.

The judges concluded: “The effect of the Bill, however, will not be confined to the holding of a referendum.

“Even if it is not self-executing, and can in that sense be described as advisory, a lawfully-held referendum is not merely an exercise in public consultation or a survey of public opinion.

“It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion.”

The court ruled that it did have jurisdiction to consider the question referred to it by Ms Bain, as to whether a proposed Bill on a second independence referendum was within the powers of Holyrood, because it is a “devolution issue”.

The judges also accepted her argument that it was in the public interest for the court to decide the question referred to it.

They said in the ruling: “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 practical importance.

“It is a question on which the Lord Advocate has to advise ministers. The answer to the question will have practical consequences: it will determine whether the proposed Bill is introduced into the Scottish Parliament or not.

“The question is therefore not hypothetical, academic or premature.”

The judges added: “It is understandable that the Lord Advocate should have decided that it should be referred to this court in the public interest.”

The court rejected arguments made on behalf of the SNP, which intervened in the case, based on “the right to self-determination” enshrined in international law.

The SNP had argued the limitations on the powers of the Scottish Parliament in the Scotland Act should be “restrictively interpreted in a way which is compatible with that right under international law” and cited rulings in the Canadian Supreme Court and the International Court of Justice.

Lord Reed said in his summary that the court in the Canadian case, which concerned Quebec, held that the right to self-determination under international law only exists in situations “of former colonies, or where a people is oppressed … or where a definable group is denied meaningful access to government”.

He said: “The court found that Quebec did not meet the threshold of a colonial people or an oppressed people, nor could it be suggested that Quebecers were denied meaningful access to government to pursue their political, economic, cultural and social development.

“The same is true of Scotland and the people of Scotland.”

He added that submissions made by the UK Government in the International Court of Justice case, which concerned Kosovo, were “consistent” with the Canadian case in that they argued the right to self-determination was “normally limited to situations of a colonial type or those involving foreign occupation”.

Lord Reed concluded: “That is not the position in Scotland.”

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