What does the judgment mean?
On Wednesday 23 November, the UK’s highest court unanimously rejected the Scottish Government’s legal case for an independence referendum without Westminster’s consent. Lord Reed, the president of the Supreme Court, said, “Scotland does not have the power to legislate on a referendum for Scottish independence.”
The five-judge panel dismissed the argument made by Dorothy Bain KC, the most senior legal advisor to the Scottish Government, that an advisory vote would not in itself have a legal impact on the Union. The Court ruled that a referendum would be a political event of significant importance for the integrity of the UK even if its outcome had no immediate legal consequences. And so, a constitutional matter to be decided by the British Parliament.
Although the judgment comes as no surprise, it settles a constitutional issue that predates the Scottish independence referendum of 2014. In the 2011 Scottish elections, the pro-independence Scottish National Party (SNP) won a majority in Holyrood. Running on a manifesto promise of a referendum on independence, it declared a democratic mandate to call a vote. This sparked a lively debate on the question of whether Scotland required a transfer of power from Westminster to Holyrood. Under the Scotland Act 1998, the law that created the Scottish Parliament and its powers, all matters related to the Union of England and Scotland are reserved to the UK Parliament.
The SNP believed that the limited legislative powers of the Scottish Parliament did not prevent it from consulting on the will of the Scottish people. But the UK government argued that any referendum bill would fall outside Holyrood’s legislative competence and be illegal. After months of negotiations, London and Edinburgh reached a political agreement in October 2012 paving the way for the 2014 referendum.
Four consecutive UK prime ministers have rejected a similar agreement this time round. With the latest opinion polls placing support for independence around 49% compared to 30% back in 2011, the UK Government’s position is hardly surprising. The political conditions that favoured Scotland’s road to the 2014 vote are unlikely to come around this time. So, Wednesday’s judgment comes as a blow to nationalists’ hopes of calling a second referendum next October.
Scottish First Minister Nicola Sturgeon admitted disappointment but accepted the ruling, adding “the UK Supreme Court does not make law, only interprets it. A law that does not allow Scotland to choose its own future without Westminster consent exposes the myth the UK is a voluntary partnership and makes the case for independence.” While the judgment settles the law, it is unlikely to end the political debate on the question. And as Sturgeon pushes further, it remains to be seen by what other means Scotland can secure an independence vote.
How did we get here?
Scotland has a long and proud history as an independent country with its roots dating back to the 800s. England and Scotland have shared the same monarch since 1603 and in 1707 the two countries decided to unite into one single kingdom called ‘Great Britain’. The Acts of Union, as it became known, abolished the Scottish Parliament and established Westminster as the Parliament of Great Britain. Scotland nonetheless retained considerable autonomy, with its own legal system and national church.
In 1997, people in Scotland voted in a referendum with 74% in favour of more autonomy. In 1998, the Scotland Act was enacted and in the following year a new Scottish Parliament opened in Edinburgh. Since then, the devolution settlement expanded with Scotland gaining more powers in areas such as taxation, social security, and electoral administration. As support for the SNP soared in the early 2000s, the case for a referendum on independence became undeniable. In 2014, Scots rejected ending the 300-year-old union with England by 55% to 45%.
But in the 2016 Brexit referendum, the UK as a whole voted to leave the European Union despite strong Scottish support to remain in the EU. Nationalists argued Brexit completely changed the UK’s constitutional settlement, reviving the appetite for another vote on independence. The SNP-led Scottish Government believes the best future for Scotland is within the EU as an independent country. London argues the 2014 referendum was a once-in-a-generation event. Welcoming Wednesday’s ruling as “clear and definitive”, UK prime minister Rishi Sunak added, “the people of Scotland want us working on fixing the major challenges we collectively face, whether that’s the economy or supporting the NHS”.
So what’s next for the Union?
Having exhausted the legal route for a second referendum, Sturgeon vowed to find another democratic and constitutional way by which the Scottish people can express their views. She said the SNP will now treat the next UK general election as a de-facto referendum, with all candidates standing on the question of independence.
Critics say this is a major political gamble as Scotland remains divided on the issue of independence. And should the SNP win more than 50% of the Scottish vote in the next general election, the UK Government will be under no obligation to negotiation the key terms of a possible ‘Scotexit’.
