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Scotland Can't Hold Independence Referendum Without Westminster's Approval, Supreme Court Rules

Scottish Parliament cannot hold its own independence referendum without Westminster's approval (Alamy)

4 min read

The Supreme Court has unanimously ruled that the Scottish Parliament does not have the power to hold a lawful independence referendum following a reference from Scotland's Lord Advocate Dorothy Bain KC.

Delivering the court's ruling in the matter this morning, Supreme Court president Lord Reed dismissed a claim from the UK Government that it did not have jurisdiction to hear the case, but ultimately agreed with its case that legislating for a referendum is a reserved matter, PoliticsHome's sister publication Holyrood reports

Bain had argued that holding an advisory referendum would not in itself have an immediate impact on the constitution of the UK and so should be within the scope of devolved powers.

However, Reed said he and his fellow justices had concluded that the "effects of legislation are not confined to legal effects" and that a "lawfully held referendum would have political consequences".

He said the outcome of a referendum, advisory or otherwise, would have "the authority of a democratic expression of the view of the Scottish electorate" and that that would either strengthen or weaken the Union.

As such, he said, it would have an impact on the sovereignty of the UK parliament and so the Scottish Government's proposed bill relates to reserved and not devolved matters.  

Responding to the judgment First Minister Nicola Sturgeon tweeted: "While disappointed by it, I respect ruling of @UKSupremeCourt - it doesn't make law, only interprets it.

"A law that doesn't allow Scotland to choose our own future without Westminster consent exposes as myth any notion of the UK as a voluntary partnership & makes case for Indy."

Bain made the reference to the court in July after First Minister Nicola Sturgeon unveiled her ambition to hold a second independence referendum on 19 October next year.

Bain could not say definitively whether it would be within the Scottish Parliament’s power to legislate for that vote and asked the Supreme Court for its opinion.

The UK Government’s position was that the terms of the Scotland Act prevent the court from considering a question relating to a law that has not already been passed and so the case should have been thrown out without consideration.

The court went ahead with the two-day hearing in October after rejecting that bid, saying that “in the interests of justice” it wanted to “hear argument on both issues at a single hearing”.

During the hearing, Bain argued that, while her reference does relate to a bill that has not yet been introduced, the justices could determine the matter because “the circumstances of the present case are highly exceptional”.

She said a “concrete legal issue has crystalised” in terms of whether the Scottish Government has the right to introduce a referendum bill and so it is “not premature” to ask the court to decide whether such matters are considered devolved or reserved from a legal standpoint.

“The answer will have a concrete effect,” she said. “It will determine whether the draft bill is introduced to parliament or not.”

Sir James Eadie KC, who represented the UK Government on the instruction of Advocate General for Scotland, Lord Stewart, said Bain’s position was “uncontrolled and surprising” and argued that the fact Bain could not advise definitively that introducing a bill would be within the legislative competence of the Scottish Parliament showed that the case should be dismissed.

The case has implications for each devolved nation of the UK and the panel overseeing the case was made up of representatives from all four jurisdictions. Lord Reed, who is qualified in Scots law, sat with Lord Sales and Lady Rose, who are experts in English law, Lord Lloyd-Jones, who has a background in the Welsh court system, and Lord Stephens, who was previously a judge in Northern Ireland.

Read more coverage of the Supreme Court decision on Holyrood

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