UK Supreme Court blocks Scottish independence referendum legislation

Out-Law News | 23 Nov 2022 | 11:24 am | 2 min. read

The UK Supreme Court has blocked Scottish Government plans to hold an independence referendum next year, ruling that the Scottish parliament does not have the competence to legislate for one.

In a unanimous decision (35 pages / 303KB PDF), the Lord Justices held that the proposed Scottish Independence Referendum Bill relates to constitutional matters that are reserved to the Westminster parliament. The Court ruled that, even if the proposed referendum was ‘advisory’ and would have no immediate legal consequences, it would still be “a political event with important political consequences”.

Handing down the Court’s judgment, Lord Reed said: “It is therefore clear that the proposed Bill has more than a loose or consequential connection with the reserved matters of the Union of Scotland and England and the sovereignty of the United Kingdom parliament. Accordingly, the proposed Bill relates to reserved matters and is outside the legislative competence of the Scottish parliament.”

The Court also rejected written submissions made by the Scottish National Party (SNP) which related to the right to self-determination in international law and the principle of legality in domestic law. The Lord Justices held that the right to self-determination was not an issue in the case.

Scott Wright, public policy expert at Pinsent Masons, said that the ruling itself would not end the long-running dispute over Scottish independence. “The Supreme Court’s decision is politically very significant. If the first minister’s roadmap is to be adhered to, the SNP will now contest the next general election, which must be held by January 2025, as a single issue ‘de-facto referendum’. Such a move would be a significant departure from the gradualist approach to independence adopted by the SNP leadership in recent years.”

“A key challenge facing this approach is the question of legitimacy. A de-facto referendum will not enjoy cross-party support and legal basis which was the ‘gold standard’ approach favoured by the Scottish Government in 2014 – and indeed by Nicola Sturgeon until the publication of her roadmap in June. Accession to the EU would also be extremely difficult without a legally binding vote,” Wright said.

He added that the SNP’s approach is likely to deepen the constitutional divide between Holyrood and Westminster at a time when political cooperation is required. “This could be the Scottish Government’s intention, however, particularly as it may result in an uptick in support for independence. This is clearly a huge gamble by the first minister, and with up to two years until the next general election, there is a lot of water to go under the bridge before we arrive at any ‘de-facto’ plebiscite,” Wright said.

Mark Ferguson of Pinsent Mason added: “The Scottish Government might be hoping that pursuing this option forces its UK counterpart back to the negotiating table to agree to a referendum which would deliver ‘a decisive expression of the views of the people in Scotland and a result that everyone will respect’ – as David Cameron and Alex Salmond achieved in 2012.”

Ferguson urged businesses to consider and evaluate what Scottish independence might mean for their day to day operating environment in the run up to the next election. “As the debate becomes more polarising, businesses which want to remain neutral should avoid being drawn into the constitutional debate as the positions or opinions they express both internally and externally may be held against them, posing significant reputational risk,” he added.

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