Supreme Court Showdown: The Legality of a Second Independence Referendum
The case for an independent Scotland has gained significant momentum in recent months, despite continued opposition from Westminster. In an attempt to translate this momentum into material progress towards Scottish independence, Scotland’s First Minister Nicola Sturgeon recently announced her plans to hold a second independence referendum in October 2023.
The Lord Advocate’s uncertainty regarding the legality of a referendum without permission from the United Kingdom's government has resulted in the referral of the issue to the Supreme Court. The central focus of the case will be whether the Scottish Parliament has the legal authority to pass a bill instigating a referendum.
This article will explore the central claims of supporters and opponents of a second Scottish independence referendum. It will begin by detailing the context for the debate over the legality of a second referendum before examining the legal realities of the arguments being promoted by the Scottish National Party and the UK government ahead of the Supreme Court case.
In 2012, after a meeting with former First Minister Alex Salmond, former Prime Minister David Cameron granted a Section 30 Order in a deal named the “Edinburgh Agreement”. A Section 30 Order refers to a section of the Scotland Act 1998 which details the legislative competence of the Scottish Parliament. An Order under Section 30 has the capacity to temporarily increase or restrict the legislative authority of the Scottish Parliament.
An independence referendum would have an impact beyond the borders of Scotland and was generally considered to be a reserved matter and thus outwith the scope of the Scottish Parliament’s power. As such, in 2012, the Section 30 Order was granted to increase the powers of the Scottish Parliament to facilitate legislation for the 2014 referendum.
Whilst Nicola Sturgeon has sought to obtain a similar agreement to legitimise a second independence referendum in 2023, the UK government’s unwillingness to grant such an order has raised questions regarding the legal competence of the Scottish Parliament and the potential legality of a referendum lacking the consent of Westminster.
Concern regarding the legality of the proposed bill has been expressed by senior Scottish Law Officer, Lord Advocate Dorothy Bain QC. Earlier this month, court papers revealed that the Lord Advocate lacked “the necessary degree of confidence” in the power of the Scottish Parliament to legislate on the issue of independence. Through Schedule 6 of the Scotland Act, which concerns “Devolution Issues”, the Lord Advocate has referred the issue to the Supreme Court. This action has been described by Nicola Sturgeon as one that seeks “legal clarity” and “legal fact” on the scope of the Scottish parliament’s legislative powers.
Despite concern from Scotland’s most senior law officer, Sturgeon and her party continue to argue that the simple act of holding a referendum remains within the competence of the Scottish Parliament. The Scottish Independence Referendum Bill, published June 28 2022, stipulated that its purpose was “to make provision for ascertaining the views of the people of Scotland on whether Scotland should be an independent country”. In this respect, the argument of those in support of a second referendum centers around the fact that such a referendum would be “consultative” rather than constitutive of a new independent Scotland. In a legal sense. This argument attempts to distinguish between the act of holding a referendum and the actual establishment of an independent Scotland. Proponents of a second referendum claim that the former remains within the authority of the Scottish Parliament since the mere act of asking the Scottish people for their views does not, in theory, affect reserved matters.
The argument that the act of holding a referendum is separate from the act of dismantling the union (and thus falls within the parameters of the Scottish parliament’s authority) has been contested by the UK Government and Conservative Members of the Scottish Parliament. The Chairman of the Scottish Conservatives has described the SNP’s proposed referendum as “an illegal vote” whilst UK government sources have claimed they remain “very confident” that they will succeed in the Supreme Court.
Over a decade ago, in the lead up to the Edinburgh Agreement, the legal advice provided to the UK government considered a referendum instigated by the Scottish Parliament alone to be unlawful, since it represented a means of interfering with, and potentially dismantling, the union of Scotland and England. The Scotland Act 1988 states that a provision is outside the competence of the Scottish Parliament if it “relates to reserved matters”. Those opposed to a second referendum thus argue that a referendum would, legally, be beyond the scope of the Scottish Parliament’s legislative authority. In a recent Opinion (Keatings v. Advocate General for Scotland and the Lord Advocate) the Inner House of the Court of Session noted that legislation to hold a referendum would relate to reserved matters if it had “more than a loose or consequential connection with them”. Those opposed to a referendum have highlighted that an Act to hold a referendum would, by its very nature, have a connection to and impact upon reserved matters and on the powers of the UK Parliament. As such, they have argued that such an Act would be unlawful and would directly conflict with the boundaries on the legislative power of the Scottish Parliament set out by the Scotland Act 1988.
The hearing is set to take place in the Supreme Court in late autumn. Nicola Sturgeon has already suggested that, if the Scottish Government loses the legal battle in London, she will treat the next general election as a “de facto referendum”. Thus, whilst a ruling finding an unauthorised referendum to be unlawful would not prevent the SNP from pursuing alternative means to ascertain the will of the Scottish people, it would be likely to make the process of actually achieving independence for Scotland significantly more difficult.