Supreme court rules against Scottish parliament holding new independence referendum
The Scottish parliament cannot hold a second independence referendum without Westminster approval, the supreme court has ruled, in a unanimous judgment likely to anger Scottish nationalists who say the country’s future is for Scottish voters to decide.
The first minister, Nicola Sturgeon, said immediately after the ruling: “Scottish democracy will not be denied.” She added: “Today’s ruling blocks one route to Scotland’s voice being heard on independence – but in a democracy our voice cannot and will not be silenced.”
Sturgeon said she would be making a full statement later this morning.
The decision could lead to Sturgeon following through on her pledge to “put our case for independence to the people in an election”, turning it into a “de facto referendum”.
Delivering the categorical judgment on Wednesday morning, the UK supreme court president, Lord Reed, said the Scottish parliament did not have the power to legislate for a referendum on independence because such a bill would relate to the future of the union of the UK, a matter reserved to Westminster.
Reed also rejected arguments put by the SNP, which the court permitted to intervene in the proceedings, based on the Scottish parliament’s right to self-determination under international law.
He said that, in the absence of an agreement between the two governments, as happened in advance of the 2014 vote, the Scottish parliament did not have the power to legislate for a referendum.
The ruling came after an unprecedented hearing at the UK’s highest court into whether Holyrood had the legal authority to legislate for a referendum on Scottish independence without Westminster granting it the required powers.
Four consecutive prime minister have refused Sturgeon’s repeated requests to grant her a section 30 order, the section of the 1998 Scotland Act – the legislation that established the Scottish parliament – that allows Holyrood to pass laws in areas that are normally reserved to Westminster, such as the union.
The question was referred to the
court by Scotland’s lord advocate, Dorothy Bain KC, at Sturgeon’s request after she confounded critics in June by announcing her preferred date for another referendum as 19 October 2023.
Bain argued that the referendum bill was within Holyrood’s powers because the vote would merely be consultative and would not have any immediate consequences. Independence would be achieved through lengthy negotiations, as happened with Brexit.
But Lord Reed said that the effects of legislation “are not restricted to legal consequences but can include its practical consequences”. The outcome of a referendum would “possess the authority … of a democratic expression of the view of the Scottish electorate” and would “either strengthen or weaken the democratic legitimacy of the union”.
Therefore, Reed said that the five judges had concluded unanimously that “it is clear the proposed bill has more than a loose or consequential connection with reserved matters”.
Sir James Eadie KC, a senior lawyer acting for the UK government, said Bain had refused to certify the draft bill as legally competent earlier this year because she “did not have the necessary degree of confidence” it was lawful. The proposed legislation was “solely and squarely about the union”, Eadie said, and thus in breach of the Scotland Act’s bar against passing legislation that dealt with the UK’s constitution.
He suggested that Scottish ministers’ attempts to seek a ruling were “premature” and “theoretical” because the referendum bill had not yet been presented to Holyrood, an argument rejected by Reed, who said the bill was within the scope of the court and further that he accepted Bain’s argument that it was in the public interest that the court should provide an authoritative ruling.
Sturgeon, who has built her case for staging a second referendum on Scotland’s democratic right to self-determination, has said previously that a rejection of her argument would leave her no alternative but to “put our case for independence to the people in an election”.
She characterised this as a “de facto referendum” but significant questions arise about how it would operate in practice.
Reacting to the judgment, one SNP MP said getting a “clear answer” from the UK’s most senior judges on Holyrood parliament’s right to hold a referendum without Westminster’s permission put the question of Scottish independence firmly “back in the political court”.
“The first minister asked it to be referred here so that it was clear, and we have a clear answer, and I think that is better than no ruling or a vague answer. It just simply moves the ball out of the legal court back in to the political court,” said Dr Philippa Whitford.
She denied it was a blow to the cause of Scottish independence, adding that the issue might have been tied up for years if the Scottish parliament had gone down the route of legislating for a poll.
“I think while many who support the union will be perhaps cheering, they also need to realise that it puts questions to them about the nature of the United Kingdom,” she said, speaking among a small huddle of Scottish independence supporters who waited outside with flags.
“We’re constantly told it’s a voluntary union, and therefore they need to consider what democratic right people in Scotland to choose.”
The Scottish Labour leader, Anas Sarwar, said that, while it was right for the Scottish government to seek legal clarity on the question, “there is not a majority in Scotland for a referendum or independence”.
“The supreme court’s answer was clear and I thank them for their speedy work in this case. We must now focus on the problems facing our country, from rising bills to the crisis in our NHS.”
The Scottish Conservative leader, Douglas Ross, called on the SNP to “drop their referendum obsession” and respect the ruling.
“The country faces enormous challenges right now. Our economy and our NHS are in crisis. We have a wave of public sector strikes – including the first teachers’ strike in almost four decades. These key issues must be everyone’s top priority.”