On the 23rd of November 2022, the UK Supreme Court decided a very important decision on Scottish
independence. It was asked to rule whether the Scottish Parliament had the power to implement
an independence referendum by itself. The UK Supreme Court concluded that Scotland did not
have that power. So the question we have is, where does this leave Scottish independence?
Does this mean that Supreme Court has effectively ruled that Scotland could
never be independent and never have an independence referendum? Well,
in order to answer this question, we need to think a little bit more about the backdrop of the case.
Now, the first thing we need to think about is how the UK is structured. Now most countries were
used to talking about either have what we call a unitary, or a federal constitution. So either they
have one parliament that governs the whole of the country, or they have a system of a parliament and
different state parliaments that work together in a federal structure. The UK is different - we have
a devolved system. So this means we have four distinct parliaments. We have the Westminster
Parliament in the United Kingdom, that governs, the UK and England, we have the Senedd Cymru - the
Welsh Parliament, that deals with Welsh law. We have the Scottish Parliament, that implements
legislation and rules for Scotland, and we have a Northern Ireland assembly, who deal
with different provisions in Northern Ireland, but they have a very different relationship. So
they all have different powers. Westminster has the most power. It is a sovereign parliament,
so this means it can enact laws on anything that it wishes. But the same is not true of
the Scottish Parliament, the Senedd Cymru and the Northern Ireland assembly. They have legal limits
on their powers. So the powers they have have been conferred on them by settlements enacted
through legislation by the UK Parliament. So it becomes a very important question when
Scotland Wales and Northern Ireland want to enact legislation whether they have the power to do so.
The other elements we need to think about is how we got here in terms of asking this question in
the first place because it might seem a little odd that the UK Supreme Court was asked rule
on whether Scotland could have an independence referendum, when we know Scotland already had
an independence referendum that took place in 2014. But that was because this was decided in
a different way. So that referendum came about, because the UK government decided to transfer
power specifically to the Scottish Parliament to have an independence referendum, and this was done
in an agreement called the Edinburgh Agreement using Section 30 of the Scotland Act 1998.
So Scotland could have this independence referendum then because of this agreement
where the power being transferred specifically to
Scotland to have the referendum. But the question was never resolved then,
whether Scotland would be able to have a referendum by itself, if the UK government
decided not to transfer powers to Scotland. So that's why this question came before the court.
Now, the other thing you might think is, well, if Scotland has already had an independence
referendum in 2014, why was there such a need to have another one so soon? Well,
this is because of the different situation that has happened in the UK constitution since 2014.
The biggest difference being, of course, Brexit. Now Scotland voted in favour of the UK remaining
in the EU, but England and Wales voted for the UK to leave the EU. And this understandably has
created some tensions between the different component parts of the United Kingdom. In
particular, some of those who voted to not be independent in the first Scottish independence
referendum might have done so because they felt that that way they would keep their EU membership,
when it wasn't being clear if that would have been the case with an independent Scotland. Now
that situation has since reversed because the UK is no longer part of the EU. So it might be
now that those who wanted to keep EU membership would feel there's more of an ability to do so,
and have these rights with an independent Scotland. So because of this change of situation,
you can begin to understand why it was felt to have a need of a second referendum.
Now, Scotland, tried to get the UK government to grant at the power to have a referendum again,
using Section 30 and it repeatedly asked the UK government to have this power,
but both Theresa May and Boris Johnson when they were prime ministers refused to grant that power
to Scotland. So this puts Scotland in a difficult position it could see there could be a good reason
to have another independence referendum, and this was backed up with democratic backing
because you had a Scottish National Party that was running the government in Holyrood,
and that stands strongly on elements of Scottish independence, and also because there have been
resolutions of the Scottish Parliament, that sits at Holyrood that have been favour of independence.
So this put Nichola Sturgeon, the first minister of Scotland in a bit of a dilemma. She could see,
there could be good with reasons for another independence referendum. She
also had a democratic mandate towards having another independence referendum, but the UK
government had decided it was not going to give Scotland the power to have another referendum.
So what can she do? Well, the most obvious thing she can do is decide to see, well as we
don't have a legal case saying we can't have an independence referendum why don't I try and get
a bill before the Scottish Parliament to see if we can have a separate independence referendum?
And that's exactly what she decided to do - coming up with a draft referendum bill. But she faced a
problem. And the problem that she says faced is under the provisions of the Scotland Act, she
has to make a statement saying that the bill she's putting before the Scottish Parliament is within
their competence. But she couldn't necessarily do that because we didn't clearly know. The Scottish
ministerial code says that in order of her to make the statement, this needs to be cleared
by the legal officers in Scotland. This is the Lord Advocate. So the government, the Scottish
Government asked the Lord Advocate if this particular referendum bill would be within
the scope of the powers of the Scottish Parliament and the Lord Advocate concluded that it wasn't.
So this meant using the Scottish ministerial Code, you wouldn't be able to put a referendum bill
before the Scottish Parliament. So what do you do in that situation? Well what the first minister
of Scotland decided to do was to ask the Lord Advocate to make a special type of reference to
the Supreme Court, and this is a reference under paragraph 34 of schedule 6 to the Scotland Act,
which is why this case has the odd name of a reference on Scottish independence
under paragraph 34 of schedule 6 of the Scotland 1998 because it's a very unique
way of trying to get to the Supreme Court to solve this problem. So this reference
is made and the Supreme Court has been told it has to decide three different questions:
The first question it has to answer is, can you even use this special procedure
to make a reference? Because this is an odd thing. No one's ever done this
before. Can we actually refer cases after Supreme Court in this way?
The second thing, the Supreme Court has to decide is, even if it does have the
power to hear this reference, should it exercise its discretion and decide not to?
And then, finally, having decided those two things it decides the most important aspect for the UK's
constitution, which is does Scotland, have the power to hold an independence referendum itself?
On the first issue. The UK Supreme Court concluded that they could have the power
to hear this reference. And they did so partly, because of the broad wording of
paragraph 34 of schedule 6 to this particular piece of legislation. But also importantly
they recognised that this was important for the rule of law. This aspect of the rule of
law is the idea that governmental bodies and parliaments like the Scottish Parliament,
that have limited legal powers act within the scope of the law. It's important that we make
sure that these bodies that have legally limited powers just act when they have the power to do so.
Now a difficulty that could arise here is you might find that Scotland is acting outside or not
within the scope of its powers if you can't check whether it has the power to act or not. Well,
you might say well, the lord advocate was performing this job. Well, yes, she was,
but the lord advocate is not the same as the court, so she can decide whether she thinks the
court will think something is within the powers of the Scottish Parliament or not, but only really
the Supreme Court can have the final say. And as the Supreme Court recognise what would happen
if the lord advocate got it wrong, particularly in situation like this one or the Supreme Court
hadn't yet decided whether Scotland had a power to act or not. So in those situations having this
special reference procedure, would make sure that the Supreme Court could check the lord advocate,
and make sure that Scotland was always acting within the scope of its proper legal powers,
even if that meant sometimes recognising that Scotland had the power to do something
when the lord advocate might have thought it didn't. So you need to have a special checking
function. Having decided that, because of the constitutional importance of the decision,
the UK Supreme Court decided that it should hear this reference. So it wasn't going to exercise
its discretion and decide what well we might have the power, but we don't think we should because we
don't really have a full bill yet we only have a draught bill. The UK Supreme Court recognised
that this was so constitutionally important that they really needed to hear this reference.
Which brought us to the main part of the decision - did Scotland have the power or
not? Now, this all turns on whether something relates to what we call a reserved matter.
Now, there are two reserved matters that have been reserved to the UK that were important in
this case. The first is that the union of Scotland and England is a reserved matter. The second is
that aspects of the UK Westminster Parliament are also reserved matters. So if a referendum
relates to these matters then it is not within the competence of the Scottish Parliament.
But the argument was that this is only a referendum. It doesn't create any
legal obligation. So if it doesn't create a legal obligation, how can this relate to the
powers of the Scottish Parliament? We don't know what the outcome will be and we know,
even if there is an outcome in certain circumstances, it's only politically advisory
so how can it really be affecting the union or the Westminster Parliament. The UK Supreme Court
said well actually we have to take account of the real effect. It might be that legally there
is no obligation to do anything in response to this referendum outcome. But this is a clear
expression of democratic will in a referendum decision. They're so politically important that
they are really hard to ignore - as the Brexit referendum demonstrated. And it itself was only
an advisory referendum. So given that, this would have an effect on the union and on the sovereignty
of the UK Parliament and so therefore was not within the competence of the Scottish Parliament.
So what happens next? well all the Supreme Court has said is legally, you can't have a referendum
yourself. There needs to be a transfer of power from the UK government to Scotland to have another
independence referendum. So if we're going to have a further independence referendum in Scotland,
that is the legal route that we will have to take. But the problem is, what do you do if you are the
first minister of Scotland, and the UK government keeps refusing to give you a section 30 power?
Well, you can put political pressure on the UK government to recognise how important this is,
which is why there have been various marches and demonstrations in Scotland. To just show
the strength of feeling of the need for a new independence referendum in order to persuade
the UK government to grant them this power. It's also why Nichola Sturgeon said that the
SNP would fight the next general election to the Westminster Parliament just on independence, again
to show the strength of feeling towards the need to have an independence referendum in the hope
of persuading the UK government to transfer the power to Scotland to have independence referendum.
It might be that Scotland also appeals to the international community, pointing out
the strength of feeling to have this referendum which the UK government is not granting them,
in the hope that other members of the international community - other countries - might
put pressure on the UK government. It's very hard to know what else could be done.
Now, there are some of my colleagues here in Cambridge: Shona Wilson-Stark and Raffael Fasel,
who have argued that maybe you might be able to say in certain circumstances,
that it would be a unlawful not to use a section 30, for the government to refuse to grant them
to have a referendum. Now they recognise this would only be an extreme circumstances using
every constitutional lawyer's favourite case - the Miller decision - pulling on the aspects of
the need to act within constitutional principles. So it's a possibility,
but I think it would only really be extreme circumstances that the courts will be willing
to interfere and say that the UK government had to legally grant an independence referendum.
I think it would be very, very bold move of the UK Supreme Court to do
so. So the UK Supreme Court has not stopped Scottish independence but what it has done is
put the ball firmly in the court of the UK government to decide if and when it wishes
to grant power to Scotland for another independence referendum in the future.