The Supreme Court decision: 11-12 October 2022
What is the Supreme Court being asked to decide?
Whether legislation for another referendum on Scottish independence is a reserved matter or not, i.e. does the Scottish government have the right to hold a consultative referendum without the permission of the UK parliament?
Why is the Supreme Court being asked to make a decision?
Last June, the Scottish government published a draft bill for a second independence referendum in the Scottish Parliament and the Lord Advocate of Scotland has submitted this to the Supreme Court in order to obtain legal clarity on the issue.
This was necessary because the UK government refuses to grant a section 30 order as PM Cameron’s government did in 2012 to facilitate the 2014 referendum.
What are the possible consequences of the Supreme Court’s decision?
If the Supreme Court rules that Scotland has the right to hold a referendum without the permission of Westminster, the intention of the Scottish government is to hold a referendum on October 19, 2023.
If the Supreme Court rules that an independence referendum is a reserved matter for Westminster, the Scottish government intends to turn the next Westminster general election into a one-issue de facto independence referendum.
It is also possible that the Supreme Court will rule that it cannot pronounce on a draft bill and put the ball back in the Scottish government’s court.
What are the positions of the UK and Scottish governments?
The Scottish government considers that a second independence referendum would be merely consultative to determine the opinion of the Scottish people and would not directly affect the place of Scotland in the Union. Therefore, it does not need Westminster approval.
The UK government argues the constitution is a reserved matter to the Westminster parliament and so is outside of the powers of the Scottish parliament. It also argues that the Court should not make a decision until the bill is formally passed in the Scottish Parliament.
What are the arguments employed by the SNP in favour of Scotland’s legal right to self-determination?
The SNP was also allowed to submit an opinion to the Supreme Court.
The SNP argues that Scotland is a country within the UK, not a region. In Scotland the people are sovereign, not Westminster. The Scottish government has a democratic mandate to deliver a referendum.
If the Supreme Court says no, it means Scotland has no effective right to self-determination and that the UK is not a voluntary union.
If it were ruled that the Scottish government could not even consult the Scottish people on the future of the nation, it would attack the democratic concept of self-determination of peoples as enshrined in the UN charter.
Since the UK has argued strongly for the inalienable right of self-determination, e.g. in Kosovo, it would be hypocritical to deny Scotland the same rights.
Why are the Scottish people entitled to a new independence referendum?
There is a democratic mandate for a second independence referendum. After the 2021 Scottish parliamentary elections there are 72 pro independence seats (64 SNP + 8 Greens) compared to 57 pro union seats.
The unionist position has always been that Scotland is a country, not a region and that the UK is a voluntary union of equal partners.
That is why unionist politicians argue that ‘now is not the time’ for another referendum rather than stating that the Scottish people have no right to decide their own future.
They also argue that the matter of Scottish independence was resolved with the No vote in 2014.
Furthermore, they say that it was accepted that the 2014 referendum was ‘once in a generation’ and have said that a generation could be 25 years or longer.
The arguments above are disingenuous because:
a) There has been a clear material change of circumstances since the 2014 referendum due to Brexit. Despite 62% of Scottish voters voting in favour of remaining in the EU, Scotland has been forced to leave.
This has led to a fundamental change in the constitutional arrangements and a marked deterioration in the economic performance of the UK, both of which fully justify a second independence referendum.
b) There is nothing in the Edinburgh agreement or in the Smith commission report that followed the 2014 referendum about it being ‘once in a generation’. Describing the 2014 referendum as a ‘once in a generation opportunity’ was merely campaign hyperbole.
c) In the case of a hypothetical referendum on Irish unity the Good Friday Agreement clearly defines a political generation as seven years.
The 2014 referendum is also a clear political precedent for a second independence referendum.
The Conservatives have not won an election in Scotland since 1955. In the past 43 years there have been 30 years of Tory governments, none of which Scotland voted for.
If you agree that the Scottish people should be granted a new independence referendum, please read our open letter to the EU institutions asking them to prepare to welcome an independent Scotland back into the EU.
Thank you for this very good explanation
I will share this to as many people as possible.
Thank you very much for this!
Unfortunately the page will not allow me to use the “video clip” I refer to in this post, but put briefly I describe the Scotland Act 1998 as placing Scotland in a “prison” and that establishing the Scottish Parliament was the equivalent of creating an “exercise yard” where what was allowed was severly curtailed. This (below) is the post set against that perspective – with the warning that much of any commentary (including the explainer used above) on the Supreme Court fails to fully understand the full implications of the Scotland Act 1998 – here is why:
Everybody who is interested in Scotland’s independence will be paying attention to the forthcoming Supreme Court hearing and its eventual judgement. There is no doubt it is important. It will relate to the “small print”, and perhaps to only these few words – “relates to” – in the Scotland Act 1998. In this clip from back in June 2021 I offered an opinion on the Scotland Act, and I based that opinion on two items in Section 28 of the Scotland Act.
This item is why I used the term “exercise yard”: (1) Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament … and that is why there will be a Supreme Court hearing to determine whether the Scottish Parliament is allowed to exercise its powers or to be denied that right.
This item is why I used the term “prison”: (7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.
Like you I cannot forecast what judgment will be given by the Supreme Court, but I do know it will not alter in any way ” … the power of the Parliament of the United Kingdom to make laws for Scotland.”
All those who seek Scotland’s independence need to be fully aware that whatever the outcome at the Supreme Court, the Scotland Act harbours other dangers. How far might the UK Parliament with its “power” go to prevent Scotland regaining its independence?