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All You Need To Know About Scotland's Legal Bid For An Independence Referendum

All You Need To Know About Scotland's Legal Bid For An Independence Referendum

Nicola Sturgeon wants to hold a second independence referendum in October next year (Alamy)

9 min read

The Supreme Court’s decision to refuse the Scottish Government’s referendum bill, which would allow them to hold an Independence vote without Westminster's consent, is just one blow in a long and complex fight between Scottish nationalists and the dominant political parties in London.

Eight years since Scots voted in a landmark referendum to remain part of the United Kingdom, nationalists have been doing everything they can to secure another vote. 

Their latest attempt was to take a referendum bill to the Supreme Court, asking for legal clarification on whether Holyrood could hold its own referendum on independence without Westminster’s approval. 

The Supreme Court ruled that, in this instance, the ability to hold an independence referendum is a reserved power for Westminster, and Holyrood cannot go ahead with the decision itself. But the battle is far from over. 

Here's everything you need to know about the Supreme Court’s decision, how and why it came about, and what it could mean for the campaign for Scottish independence.

Who are the parties involved and why?

The issue of Scottish independence remains at the centre of political debate in Scotland and the Scottish National Party (SNP) won 48 out of 59 seats in Scotland in the last General Election, making up 81 per cent of the Scottish seats in the House of Commons.

This has given the SNP a platform in Westminster to advocate for their number one priority: Scotland becoming independent from the UK. 

However, the nationalists lost the 2014 referendum, which posed the question "Should Scotland be an independent country?". A majority of 55.3 per cent of voters voted 'No' in a marginal victory for the unionist camp. 

Eight years later, First Minister Nicola Sturgeon announced in June 2022 that she wants to hold a second independence referendum in October next year.

It is widely accepted that she could only do that if the UK Government granted a Section 30 order – a piece of legislation that temporarily transfers powers from Westminster to the Scottish Parliament, Holyrood.

The problem for Sturgeon is that successive prime ministers have refused to grant such an order, with Boris Johnson, Liz Truss, and Rishi Sunak all saying they are opposed to holding another referendum. 

Sturgeon declared that if a Section 30 Order was not granted, the Scottish Government would legislate to hold a vote without one.

Why did Scotland appeal to the Supreme Court?

The issue of whether the Scottish Parliament can legislate for a second referendum themselves has been hotly contested, with many, including the UK Government, contending that it relates to a reserved matter that may only be legislated by Westminster – the UK Parliament.

This is where the Supreme Court comes in.

Supreme Court
The Supreme Court has ruled that the Scottish Parliament does not have the power to hold a lawful independence referendum (Alamy)

It was unclear whether it would be lawful for Sturgeon to go ahead with her referendum plan, so Scotland’s chief prosecutor and the Scotland Government’s legal adviser Lord Advocate Dorothy Bain QC asked the UK Supreme Court to consider the question as a matter of constitutional law.

The Supreme Court is the highest court of UK law, and hears cases of the greatest public or constitutional importance affecting the whole population.

First Minister Nicola Sturgeon said the Supreme Court ruling is not a matter of whether Scotland should become independent or not, but that it was on “how we determine the means by which the people of Scotland get to choose their own future”.

At the SNP conference in October, she said: “If Westminster had any respect at all for Scottish democracy, this court hearing wouldn’t be necessary. But Westminster has no such respect.”

While Bain represented the Scottish Government in proceedings, the Advocate General for Scotland Lord Stewart represented the UK government, and had attempted to have the matter thrown out.

However, the court rejected that bid, saying that “in the interests of justice” it should “hear arguments at a single hearing”.

The Lord Advocate’s position is that knowing whether Scotland can hold another independence referendum without the clearance of Westminster is of “fundamental constitutional and public importance” and, as such, is a “question of law”, not politics.

How did opposing parties respond to the case?

The dominant parties in Westminster are pro-union and against a second independence referendum; and they have been vocal in their opposition to the court case.

Both Scottish Labour and the Scottish Conservatives said it is wrong to be considering a referendum when people are facing a cost of living crisis. 

Secretary of State for Scotland Alister Jack has repeatedly said in interviews that “we’re not having another referendum”.

Before the court’s decision, he said he believes the constitution is “wholly reserved to Westminster” and added he predicted the UK government would be successful in the case. 

“We believe that in Scotland, as was intended by the founding fathers, the constitution is wholly reserved,” he said. “That will put the matter to bed.”

The Tory constitution spokesman Donald Cameron said the case was about Sturgeon “creating constitutional grievances to deflect from her own record of failure and divide us all over again”.

His Labour counterpart Sarah Boyack said it is a “complete dereliction of duty” to hold a referendum when “bills are soaring, the NHS is in crisis, and people can’t afford to put food on the table”.

Shadow Scottish Secretary Ian Murray told PoliticsHome ahead of the Supreme Court decision: “The First Minister was elected on a promise to put recovery first – her decision to turn her back on these issues and focus on the SNP’s own narrow constitutional obsession demonstrates how out of touch she is becoming.”

How did the Supreme Court make a decision?

The hearing dates took place on 11 and 12 October in the Supreme Court, which sat with a panel of only five judges.

Cases of high constitutional and public importance can have panels of more than five, but this case was not deemed sufficiently important to merit a hearing by the full Court – in itself perhaps a telling indication of the result that was to come.

Delivering the verdict, Supreme Court president Lord Reed said he and his fellow justices had concluded that the effects of allowing such legislation would not only have legal consequences, but that a "lawfully held referendum would have political consequences" too.

He said the outcome of a referendum, advisory or otherwise, would either strengthen or weaken the union as it would form an expression of the view of the Scottish electorate. 

The judges ruled it would have an impact on the sovereignty of the UK parliament and therefore the Scottish Government's proposed bill relates to reserved, not devolved, matters. 

Lord Reed also dissected some of the SNP’s arguments which had compared Scotland’s case for a referendum to those of other countries. He said the Scottish situation could not be compared to cases where subjects were “colonially oppressed”.

What happens next?

Reaffirming that the Supreme Court did have the authority to make a decision on the Lord Advocate’s question, Lord Reed declared that the Scottish Parliament does not have the power to legislate for a second referendum without Westminster’s approval. 

This is a major blow for Nicola Sturgeon's ambition to hold a second independence vote next October, almost certainly ruling her plan out.

Sturgeon said in her party conference speech that the Holyrood would “respect” the judgement of the Supreme Court, even if it did not go their way. 

“But fundamentally, it will leave us with a very simple choice,” she said.

“Put our case for independence to the people in an election or give up on Scottish democracy.

“I don’t know about you, but I will never – ever – give up on Scottish democracy.”

The First Minister announced that if the ruling did not go in favour of the Scottish Government, they would fight the next UK General Election as a ‘de facto’ referendum on the ‘single question’ of whether Scotland should be independent. 

The SNP are likely to declare in their manifestos that they will interpret their own votes as direct votes for independence, making it a ‘single-issue’ election. 

SNP’s Graeme Dey, MSP for Angus South, tweeted in response to the verdict: “Today’s ruling from the Supreme Court has confirmed that Scotland is not an ‘equal partner’ within the union and denies our democratic right to self-determination.”

At least 14 pro-independence rallies are planned across Scotland for Wednesday afternoon – labelled “judgement day” by Scottish nationalists – as well as five other rallies across Europe.

Leading activists, including Alex Salmond, the leader of the pro-independence Alba Party, will be encouraging supporters to attend the rallies to boost visibility for the independence campaign regardless of the court outcome.

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