The UK Supreme Court has not settled the Scottish independence question

One legal battle might be over, but the question of Scotland’s future has always been so much wider than that

November 29, 2022
Not over: a supporter of Scottish independence outside the Supreme Court in London last week. Image: REUTERS / Alamy Stock Photo
Not over: a supporter of Scottish independence outside the Supreme Court in London last week. Image: REUTERS / Alamy Stock Photo

Last week—as most Scottish readers are probably aware, but English readers perhaps less so—the UK Supreme Court held that the Scottish parliament lacks the legal power to legislate for a second independence referendum. This was just the latest development in an independence debate which has rumbled on since the referendum in 2014. In September that year, the proposal “Should Scotland be an independent country?” was rejected by a margin of 10.6 per cent. During that campaign, the pro-UK Better Together alliance conspicuously argued that Scotland could only retain its EU membership by remaining in the UK. This was not so; and since then, Brexit has taken place. In the 2016 EU referendum, Scotland voted 62 per cent in favour of Remain. Although the Scottish government protested that it was undemocratic for Scotland to be taken out of the EU against its will, this argument was ignored by the UK government, and the whole UK exited the EU on 31st January 2020.

Against this backdrop, independence campaigners have argued that there has been a fundamental change in the position and that Scotland must be permitted another say. The ruling last week provides us with a legal vantage point on a question that is ultimately about what it means for a country to determine its own future—an issue which has, over recent years, become possibly even more hotly debated than it was at the time of the first referendum.

In late 2019 the Scottish government published a paper, “Scotland’s Right to Choose”, arguing the case for a second independence referendum grounded on three factors. These were: Scots’ sovereign right to determine their own constitutional future; a material change in circumstances since the 2014 referendum; and a mandate for a referendum derived from the SNP’s electoral victories at the 2016 Holyrood and 2017 and 2019 Westminster elections (since augmented by the 2021 Holyrood elections, where a majority of seats was won by independence-supporting parties, based on more votes than in the 2011 result which drove demand for the first referendum). First minister Nicola Sturgeon then claimed a renewed mandate for another referendum, and sought a “Section 30 Order” from the UK government. (Such an order—named after Section 30 of the Scotland Act 1998—temporarily transferring “reserved” legislative powers from Westminster to Scotland, was used for the 2014 referendum, a precedent Sturgeon had hoped would be followed.) However, Sturgeon’s request was rebuffed by Boris Johnson, with Scotland finding itself in a frustrating constitutional position. The Union has been recognised by previous UK prime ministers, including by Margaret Thatcher, as voluntary, and Scotland’s right to self-determination has been repeatedly stressed, including by UK government ministers. However, absent UK political support, it was hard to see how Scotland’s rights could be exercised in a way that would garner legal recognition from the international community.

Notwithstanding, in June 2022, the Scottish government intensified its campaign for independence. It issued a series of papers, Building a New Scotland”, aimed at strengthening popular support for the cause. However, the main feature was a draft independence referendum bill. This was not lodged in the Scottish parliament; instead the lord advocate, Dorothy Bain—who is the Scottish government’s principal legal officer—immediately referred it to the UK Supreme Court. The question was whether the bill related to matters reserved to Westminster, and so was outside the competence of the Scottish parliament; or whether, as the lord advocate argued, it was within competence. The first minister announced that if the bill were found within competence, then the Scottish government would immediately introduce the legislation so a referendum could proceed on 19th October 2023.

This draft bill made provision for a referendum on the question, “Should Scotland be an independent country?” The lord advocate argued that the bill (unlike its 2014 precedent) was framed as a “consultative referendum”, deliberately designed as an advisory exercise, and that its effect, in legal terms, would be zero. Therefore Scotland could hold the vote without encroaching on reserved matters. As a purely consultative exercise, it could not end the Union. Further steps would have to be taken for that to happen. The UK government countered that the bill did in fact relate to matters that may only be legislated for by the UK parliament, namely the Union of the Kingdoms of Scotland and England and/or the parliament of the United Kingdom itself—both of which matters are reserved to the UK under Schedule 5 of the Scotland Act 1998.

The judgment

In a unanimous judgment, the Supreme Court found that although it had jurisdiction to hear the case (itself a contested and technical legal matter which took up well over half of its judgment), the draft bill related to reserved matters and so the Scottish parliament lacked the power to legislate for the referendum. The Court applied standard caselaw to the issue, finding that a statutory provision relates to a reserved matter if it has more than a “loose or consequential” connection with it (that is to say, the connection must not be merely an indirect or peripheral one). Applying this test, it found that, even if the referendum had no immediate legal consequences, it would have important political consequences, and thus more than a loose or consequential connection with the reserved matters at issue.

The result of this lawsuit was perhaps not very surprising. First, although the case was acknowledged by the Court itself to be of constitutional importance, it was nonetheless not deemed sufficiently important to merit a hearing by the full Court—in itself rather telling. It was heard by only five Supreme Court judges—Lord Reed, Lady Rose, Lord Lloyd-Jones, Lord Sales and Lord Stephens—not the full Court (of 11) as in the Gina Miller Brexit cases (the second of which was brought with Joanna Cherry).

Both Miller lawsuits produced judgments against the UK government, which might have seemed encouraging for the lord advocate—implying that the Supreme Court bench was not always inclined to side with executive authority in Westminster. But times have changed. Lord Reed is president of the court now, and it has been convincingly argued that the Reed Court differs in judicial approach from its predecessors. For example, Conor Gearty at the London School of Economics has argued that the Reed Court inclines toward legal formalism—in that it takes a narrow reading of the rule of law, adopts a close reading of legal texts and eschews arguments which stray into broader issues (such as those relevant to Scottish independence which rest on the principle of democracy).

A referendum is only one limb of the Scottish government’s planned strategy for independence

What’s more, in previous caselaw the Supreme Court has taken a narrow approach to devolution. In the first Miller case, it found the Sewel convention (that the UK parliament “will not normally legislate with regard to devolved matters without the consent of the Scottish parliament”) to be a mere political convention and legally unenforceable, despite its having been translated into statutory form in Section 2 of the Scotland Act 2016 (which amended the 1998 act and devolved further powers to Scotland). In the 2018 Scottish Continuity Bill and 2021 UN Rights of the Child cases, the Supreme Court also interpreted Scottish devolution narrowly, finding it could not be applied to undermine the sovereignty of parliament in Westminster. In contrast, in the first Miller case, the Supreme Court interpreted the “effect” of actions more widely—finding that the UK government could not use the royal prerogative to trigger Article 50 of the European treaties and start the process of leaving the EU, because its direct effect would lead to repeal of the European Communities Act 1972, and only parliament could repeal legislation. It was therefore unsurprising that the Court considered that even a “consultative” referendum could have wide effects—even if not legal ones—because it might ultimately lead to the breakup of the UK.

Next steps

The Court’s decision might seem disappointing for the Scottish government. The SNP has always stressed the importance of legality—especially given that an independent Scotland would want recognition from the international community, not least if it wished to rejoin the EU. Yet the Supreme Court decision seems to close off the possibility of a lawful referendum without UK government consent—which seems unlikely to be forthcoming, for the present at least.

However, an independence referendum is only one limb of the Scottish government’s planned strategy for independence. The first minister had already announced a Plan B whereby, should the Supreme Court find a referendum bill to be outside Holyrood’s powers, then the SNP would fight the next UK general election as a “de facto” referendum on the question of whether Scotland should be independent. And to be sure, there are precedents for general elections waged on single issues. The 1910 general election was fought on the issue of the Liberal government’s “People’s Budget”. The 1918 general election was fought by Sinn Féin on a manifesto commitment to establish an Irish Republic and provided them with a landslide victory in Ireland, which they saw as furnishing a mandate to establish a provisional Irish parliament—the Dáil Éireann—and issue a declaration of independence. It was also once contended that “one-off” additional general elections should be held to authorise constitutional change (such as home rule for Ireland)—a view widely promoted by the doyen of English constitutional law, AV Dicey, and looked on favourably by the 19th-century Conservative prime minister, Lord Salisbury, as a way to thwart Liberal policies.

A wider approach to independence would broaden the debate beyond the narrow confines of legal competence to hold a referendum under the 1998 Scotland Act. Constitutional relations between Scotland and England have existed for over 300 years, since the UK was established by a Treaty of Union between two sovereign states, which was then ratified by two Acts of Union in the respective parliaments. But this relationship, and the issue of consent of both parties to it, is an ongoing one, not something over and done with thanks to an Act of Union three centuries old. Since 1707, Scotland has maintained its own distinct civic institutions, legal system, church and cultural heritage—all factors which point to the Union as a continuing agreement between two independent nations.

Although the lord advocate restricted her arguments in the Supreme Court to those regarding competence under the Scotland Act, a separate intervenor brief was submitted by the SNP, with additional arguments on the right of the Scottish people to self-determination, and to democracy. These got little to no airing in the Court hearing, and indeed the Supreme Court judgment held that the right to self-determination was not at issue. Yet that right cannot be dismissed so quickly. It is fundamental and inalienable, located in Article 1 of the UN Covenant, and, as the SNP brief argued, UK statutes (such as the 1998 Scotland Act) should be interpreted compatibly with the UK’s commitments under international law. Time and again, UK prime ministers and politicians have acknowledged that the Union is a voluntary one, and that Scotland has a right to self-determination. Through its own conduct over many years, the UK government has generated an expectation allowing for independence in principle. This situation clearly distinguishes the UK from states such as Spain, whose constitution declares “the indissoluble unity of the Spanish nation”, or the US, whose Supreme Court in 1868, in Texas v White, held that there was no right to state secession.

Furthermore, the UK Supreme Court itself acknowledged in the Miller/Cherry case that “The legal principles of the constitution are not confined to statutory rules, but include constitutional principles developed by the common law.” Democracy is a key constitutional principle. The UK government has undermined democracy by ignoring the SNP’s 2021 manifesto pledge to hold another referendum, the endorsement of that pledge by the Scottish people, as well as the vote in the Scottish parliament in January 2020 for a further referendum. By ignoring the mandate of a lawful government, the UK government’s conduct in this context also undermines the rule of law.

These points can be further enhanced by legal arguments based on consent, change of circumstances and the requirement to negotiate in good faith (which I have written about elsewhere)—all of which combine to show that the UK government’s refusal to negotiate the independence issue with Scotland (including to permit a referendum) is unreasonable. Of course, all these arguments must be supported by evidence that the Scottish people desire to exercise their right to self-determination and leave the Union. If this were not so, the Scottish government would itself be violating the principle of democracy. The clearest way to demonstrate this would be by a referendum on independence, but the existence of such a desire could be demonstrated in other ways, such as at a general election.

If the UK government refuses to countenance any new independence referendum, it will undermine the characterisation of the Union as voluntary. Its behaviour will also fly in the face of history, reducing Scotland to the status of a colony or a region with no history of independent statehood, while undermining any claims (made by UK government ministers) for the exceptional, “family” nature of Union. One legal battle in the Supreme Court may be over. But the issue of Scottish independence is still very much live.