The UK Supreme Court Reference on a Referendum for Scotland and the Right to Constitutional Self-determination: Part I

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The UK Supreme Court has ruled—unanimously—that the Scottish parliament lacks the authority to legislate for an independence referendum (para 92). Moreover, in passing the Court also appears to have denied that self-determination applies to Scotland. While it is of course true that Scotland is not a colony in the traditional sense, as the Court noted, the ruling overlooks the doctrine of constitutional self-determination.

This post introduces the reference to the UK Supreme Court and notes how the Court came to deny Scottish authority to legislate for a referendum. The next post focuses on the somewhat incidental and surprising ruling concerning the application of self-determination for Scotland.

Access to the Court

Much of the Judgment of 23 November 2022, addresses the question of whether or not the question could be brought by the Lord Advocate at all, and whether there might be reasons for not answering it even if it could be brought. A particular difficulty was that the reference related to a bill that had not yet been adopted by the Scottish parliament. While it could be expected that the Court might rule on the constitutionality, or otherwise, of an act actually adopted by the Scottish Parliament, it was less certain that it might offer prospective guidance as to whether the adoption of the bill would be lawful.

The reference had been brought at the suggestion of the First Minister of Scotland, Nicola Sturgeon. When announcing the draft bill, which would have provided for the referendum to be held on 19 October 2023, she insisted that Scotland was determined to follow the path of legality on its road to independence. Hence, she invited the Lord Advocate of Scotland to bring a reference to the Supreme Court to check on the legality of the proposed bill even before it had been addressed by the Scottish parliament.

This tactic was a response to the determination of the UK government, then led by Prime Minister Boris Johnson, to refuse a so-called Section 30 Order. Such an Order in Council would ‘put it beyond doubt that the Scottish Parliament can legislate for that referendum.’ This is the wording adopted in the Edinburgh Agreement of 2012 between the UK and the Scottish governments, providing for the earlier referendum held in 2014. That initial referendum rejected independence by a margin of 45 to 55 per cent.

The Order in Council provided for in the Edinburgh Agreement only applied in the one instance—the 2014 referendum. The Agreement had been drafted with some care, avoiding an admission (or a precedent suggesting) that a Section 30 Order would be legally necessary before the Scottish Parliament could legislate in the matter. The formulation ‘put it beyond doubt’ left the question open.

Matters Reserved for Westminster in the Scotland Act 1988

In the absence of a further agreement between London and Edinburgh, there was therefore a continuing legal dispute as to the interpretation of the Scotland Act 1998. Paragraph 1 of Schedule 5 to the Scotland Act 1988 provides that:

The following aspects of the constitution are reserved matters, that is—

  • The Crown, including succession to the Crown and a regency;
  • The Union of the Kingdoms of Scotland and England;
  • The Parliament of the United Kingdom;

….

Section 29 (2) of the Scotland Act 1998 confirms that purported legislative acts adopted by the Scottish Parliament are not law if they fall outside of its legislative competence, for instance if the item ‘relates to reserved matters.’

The Supreme Court was generous in construing the authority of the Lord Advocate to bring the action, finding that the issue at hand is one ‘arising by virtue of this [Scotland] Act,’ and that answering the question would not undermine other provisions for legislative scrutiny provided for in the UK constitutional system (paras 13-47).

In addition to confirming its jurisdiction, the Court also determined that there were no further reasons that might impel it to decline the reference. It had been argued that the Court should not serve as a ‘general advice centre’ (para 52). However, the Court was persuaded that there was a real and specific issue on which the Lord Advocate required guidance, and it proceeded to the merits of the case (para 54).

Impact of a referendum on the Union and on the Powers of Parliament

The question referred was:

Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be ‘Should Scotland be an independent country?’ relate to reserved matters? In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England (paragraph 1 (b) of Schedule 5); and/or (ii) the parliament of the United Kingdom (paragraph 1 (c) of Schedule 5)?

The Court therefore had to investigate whether the proposed referendum bill would ‘relate’ to reserved matters—a term that had been subject to interpretation in previous cases. It was noted that this meant that there had to be more than a loose or consequential connection between the act in question and the reserved matters of the Union and sovereignty of Parliament. On the other hand, there did not need to be a direct effect on the matter either. Rather, what mattered were the practical consequences of the act in question (paras 71-76). The Court noted:

  1. The effect of the Bill, however, will not be confined to the holding of a referendum. Even if it is not self-executing, and can in that sense be described as advisory, a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion. It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion. Its importance is reflected, in the first place, in its official and formal character. 

In this context, the Court pointed to the need for formal statutory authority before a referendum can be held, the formal process of defining the franchise, the question to be asked, the date, the campaigning period, rules and funding, the public administration of the poll itself, etc. All this pointed to the importance of the issue, and the official nature of the referendum.

The Scottish side of the argument was rather weakened by the fact that the Lord Advocate herself had to profess that the matter was finely balanced. If she had claimed that a clear and decisive case could be made out in favour of legislative authority for Holyrood in this matter, she would have undermined the argument that the intervention of the Supreme Court was necessary in order to resolve an on-going and contested issue with immediate and real consequences for Scotland.

Second, the Scottish case was also undermined by the position taken by the Scottish government and the governing Scottish National Party (SNP) outside of the case. Both had emphasized to the public and the electorate that a referendum would have real meaning and importance on the route to Scottish independence. Now, in the context of this case, they had to argue the opposite, suggesting that the poll would be non-self-executing, non-binding and merely advisory—a mere consultation exercise.

The Supreme Court picked up on this contradiction and came to a very clear view:

  1. A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom government had not given any political commitment to act upon it. A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate. This clear expression of its wish either to remain with in the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement. It would consequently have important political consequences relating to the Union and the United Kingdom parliament.

Raising the Issue of Self-determination

This should really have ended the case. However, the Court then turned to address additional submissions that had been made by the Scottish National Party (SNP). The Court had, unusually, granted authority to intervene to the SNP, which had made legal submissions of its own. Those submissions focused entirely on an issue that had not otherwise arisen—the issue of self-determination.

Of course, in essence, the claim of those arguing for independence vis-à-vis a reluctant Westminster government would be squarely based on self-determination. This could have been a separate case and argument, outside of the narrow technical discussion of reserved powers under the Scotland Act 1998, to be raised at a later point. Granted that the UK government needs to issue a Section 30 order before a referendum can take place, the question would then become whether it can unreasonably withhold its consent to make such an order once more. If Scotland is a self-determination entity, and if self-determination contains the right to assess the will of a people, then the central government should not be able to withhold from the people of Scotland the means to actualize that right through a referendum.

Westminster argues that a referendum can only be a ‘once in a life-time’ event—another one might only take place a generation from now. However, no such restriction on implementing the right to self-determination exists in international law. In fact, referenda are often repeated at rather short intervals. Moreover, BREXIT has fundamentally changed the situation for Scotland, which overwhelmingly voted to remain within the EU.

In short, if the Scottish government had waited until Westminster had overruled the adoption of the referendum bill by the Scottish parliament, and then challenged the denial of a referendum squarely on the basis of self-determination, it would have moved the case onto territory where it might have had a chance of winning the argument. Nicola Sturgeon’s early reference to the Supreme Court, on the other hand, kept the question technical and narrow, and focused on the Scotland Act 1998, i.e., on legal terrain controlled by the central government.

The SNP seems to have sensed this problem. But it rather made matters worse by slipping the issue of self-determination into the present case in an incidental way. It argued that the Supreme Court should interpret the question of reserved powers in line with fundamental principles of international law. If there is a choice between a restrictive and a broad interpretation of which powers are reserved for Westminster, the Court should choose an interpretation that is in harmony with international law on self-determination. Hence, it should assign the power to legislate for a referendum to Holyrood.

The SNP argued strongly that self-determination is a fundamental right of peoples, and that ‘the people of Scotland are “a people” for the purposes of the right to self-determination.’ Hence, it was up to them, and them alone, to exercise that right. The decision on independence would not be dependent upon the views of the people, or organs, of the UK as a whole (SNP Written Submission, Para 5.6).

In the next post, I discuss the Supreme Court’s somewhat surprising incidental ruling that the international law right to self-determination does not apply to Scotland.

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