Rosie Walker, Partner and Head of Litigation at Gilson Gray, a specialist in Public and Election Law, considers how we arrived at today’s Supreme Court decision to veto the Scottish Government’s attempts to hold a second independence referendum without the UK Government’s consent and discusses the legal challenges likely to follow.
Today, far quicker than expected, the UK Supreme Court published its unanimous decision on whether the Scottish Government can take forward its Scottish Independence Referendum Bill without the agreement of the UK Government. The decision that it cannot do so was widely expected but the legal and political consequences remain huge. In this article I look at how we got here and what we might expect going forward.
The Case for Another Referendum
When the Scottish electorate voted against independence in September 2014 by 55% to 45%, many people believed Scotland’s constitutional position had been settled for a generation. Yet in June this year, the First Minister, Nicola Sturgeon, published her “refreshed” case for a second referendum. She and her supporters argue there has been a fundamental change in circumstances which justifies revisiting the question. The change is said to be brought about by Brexit, for which the majority of Scots did not vote; the terms of our exit from the EU, which leaves Scotland a different place to the vision presented by the Better Together campaign in 2014; and the political dominance of independence-supporting parties in Westminster and Holyrood elections since then.
These factors, the Scottish Government say, justifies them putting the question back to the voters in Scotland.
The Involvement of the Supreme Court
The Scottish Government, however, has a problem. To hold another referendum, the Scottish Parliament must pass legislation providing for one. Set up by the Scotland Act 1998, the Scottish Parliament can legislate on a wide range of areas, known as devolved matters. These include health, education, housing, justice and many others. Areas which are not devolved are known as reserved matters and the Scottish Parliament cannot legislate on these; only the Westminster Parliament can. Reserved matters include defence, foreign affairs, certain benefits and, critically for our purposes, the Union and the UK Parliament. As such, common wisdom has long held that the Scottish Parliament cannot legislate for a second referendum without the agreement of the UK Government.
In 2012, the UK Government, then led by David Cameron, reached an agreement with the Scottish Government allowing the Scottish Parliament to legislate for a referendum in 2014. However successive Conservative Prime Ministers since then have refused their agreement to a second referendum. They argue the matter has been resolved and should not be revisited so soon.
This stalemate led to arguments as to whether Holyrood could, after all, pass legislation allowing for a second referendum without the UK Government’s consent, despite the terms of the Scotland Act 1998. However, these arguments were treated with scepticism by many lawyers and proceeding this way was seen as risking a challenge to the referendum.
In order to try and move forward, the Scottish Government published its Scottish Independence Referendum Bill in June 2022. This Bill proposed to ask the Scottish people the question “Should Scotland be an independent country?” At the same time, the First Minister asked the Lord Advocate to use a mechanism contained within section paragraph 34 of Schedule 6 of the Scotland Act 1998 to refer a devolution issue to the Supreme Court. In other words to ask the Supreme Court whether it was competent for the Scottish Parliament to pass the Bill.
A new Use of the Reference to the Supreme Court
Typically this procedure is used to challenge an Act after it is passed. Here the Supreme Court was asked to rule in advance of the Bill being debated let alone passed. This is because every Bill introduced to the Scottish Parliament must be accompanied by a statement, which has to be cleared by the Law Officers, that the Bill is within the legislative competence ie within the powers of the Scottish Parliament. In this case the Lord Advocate did not have the necessary degree of confidence to sign off such a statement so the Bill could not be debated or passed.
Arguments in the Supreme Court
The Supreme Court Reference was made by the Lord Advocate on behalf of the Scottish Government. It was opposed by the Advocate General for Scotland on behalf of the UK Government. The SNP were permitted to intervene ie join in, essentially to put forward specific arguments from their perspective, where those differed from the Scottish Government’s arguments.
The hearing took place on 11 and 12 October 2022 before five Supreme Court Judges including the President, Scottish Judge Lord Reed. Given the volume of documents lodged (apparently over 8000 pages of written material), the court had indicated a decision would take months. In the end it took the Court just 6 weeks to reach its decision.
The questions the Supreme Court were asked to answer fell into 2 categories; the preliminary question was whether the Supreme Court had jurisdiction to decide the case, or at least to decide it now? Thereafter, if the Court decided it could (and should) decide the case now, the second question was whether the Bill related to reserved matters? If so, it could not proceed.
The most important arguments advanced by the parties over 2 days can be summarised as follows. The Lord Advocate for the Scottish Government argued that the proposed referendum was advisory only. In other words, the Scottish Government did not have to follow it. Therefore the Bill itself did not alter the Union or impact the UK Parliament and so did not relate to a reserved matter.
For the UK Government it was argued that the Referral was premature. The Bill had not yet been presented to the Scottish Parliament therefore the reference was premature. The Supreme Court was unable to decide it. In addition, if the Supreme Court was able to decide it, and chose to do so, it was obvious it related to a reserved matter, on which the Scottish Parliament could not legislate.
In a unanimous decision, the court today decided two things. Firstly they rejected the UK Government’s argument that the referral was premature. Explaining the Court’s reasoning, Lord Reed found that the Court did have the power to decide the matter now and that it was in the public interest for it to do so.
However on the substantive question of whether the Bill could be passed, the Supreme Court went the other way and agreed with the UK Government. Lord Reed explained that, to relate to a reserved matter, the question could have legal or practical connections to a reserved matter. He explained that the implications of a referendum in the terms proposed would include expressing the democratic views of the Scottish electorate. This, in turn, might either strengthen or weaken the sovereignty of the UK Parliament over Scotland and the Union of Scotland and England, depending on the outcome of the referendum. As such the Court held the referendum and any enabling Act did relate to a reserved matter and could not proceed without the consent of the UK Government
Is this a good outcome?
For many people this is a political rather than a legal question. However in trying to answer it from a legal perspective, the decision has many positives. We now have a definitive answer as to whether the Scottish Parliament can pass a Bill setting up a referendum without consent from the UK Government. The clear answer is that it cannot.
Many had feared the Supreme Court’s decision would only answer the jurisdiction question with a risk the court might have found it was unable to decide the matter today. That would have led to paralysing uncertainty. By deciding that it had jurisdiction and by giving a clear answer to the question posed, the law at least is clear.
The politics, however, is far less certain.
What happens next?
Back in the summer the First Minister announced a fall back plan if the Supreme Court found against her. This was to use the 2024 UK General Election as a de facto referendum. That, however, may be far easier said than done. Legal challenges will almost certainly be brought to any decision of the Scottish Government to treat the outcome of the next General Election as a de facto referendum.
In the most recent General and Scottish elections the SNP were the largest party in Scotland but did not win over 50% of the votes cast. On that basis can they unanimously dictate the question to be asked at the next General Election? Voters traditionally vote for parties for a range of reasons. Can the voters be forced to ignore wider issues and personalities and vote on the basis of a single issue only? Can our constitution accommodate that if they do?
The First Minster is due to give her reaction to the decision later today. The one thing we can be sure of now though is that further legal challenges look likely.