Scotland and Independence

Scottish Parliament has no power to legislate for independence referendum?

In 1998, legislation was passed to bring about schemes of devolution of power to Scotland, Wales, and Northern Ireland - Scotland Act 1998, Government of Wales Act 1998, Northern Ireland Act 1998.

That was 24 years ago. The devolution schemes were not identical and have been amended since their introduction. Nonetheless, the 1998 legislation sought to keep certain matters for the UK Parliament at Westminster. Devolved institutions may not legislate on so-called reserved matters.

In 2014, a referendum was held in Scotland about independence. The referendum question was, "Should Scotland be an independent country?", which voters answered with "Yes" or "No". The "No" side won with 2,001,926 (55.3%) voting against independence and 1,617,989 (44.7%) voting in favour. The turnout was a high 84.6%.

The 2014 referendum was held because the UK government (under Prime Minister David Cameron) agreed to it and a so-called “Section 30 Order” was made to permit it.

Unsurprisingly, the Scottish National Party (SNP) which forms the Scottish government was unhappy at the 2014 result and has continually pressed for a further independence referendum. UK governments at Westminster have refused to secure another section 30 order.

For that reason, the SNP wished to get legislation enacted by the Scottish Parliament to permit a further referendum in 2023 but is the Scottish Parliament permitted to legislate in that way?

The Scotland Act 1998 Schedule 5 makes “the Union of the Kingdoms of Scotland and England” a reserved matter.

Section 29 of the 1998 Act says that “An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.” Section 29 then continues to say (among other things) that “A provision is outside that competence so far as” - “it relates to reserved matters …”

On a perhaps simplistic (literal) reading it appears that legislating about even an “advisory” (i.e. not legally binding) independence referendum does relate to a reserved matter - that is, the Union of the Kingdoms. Isn’t the continuance of the Union precisely what the independence referendum is about?

Earlier this year, the Scottish government made a REFERENCE to the Supreme Court of the United Kingdom in the hope of obtaining a ruling that the Act permits Scotland to legislate for a further independence referendum.

REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 (Expedited) - The Supreme Court.

REFERENCES may only be made on Devolution Issues and so the court’s first decision was whether the question is a “devolution issue.”

The court decided that it was a devolution issue and so it did have the power to decide the reference.

Having made that decision, the court decided a second point - that is, whether to exercise its jurisdiction and decide the reference. The court decided to proceed and asnwer the reference.

The court then held that the Scottish Parliament does NOT have power under the Scotland Act 1998 to legislate for a future independence referendum.

Full details are published in the Press Summary and the detailed Judgment

There is no appeal from the court’s judgment on a reference of this type. It is also essential to note that the court was NOT concerned in any way with the underlying political question of whether Scotland should or should not become an independent nation.

Scotland Act 1998 (legislation.gov.uk)

Commentary:

Why Scotland can’t vote on independence (substack.com) - Joshua Rozenberg

The supreme court’s batting away of Indyref2 leaves Sturgeon more isolated than ever | Martin Kettle | The Guardian

The Guardian view on Scotland and the constitution: a crisis is brewing | Editorial | The Guardian

Next election will be independence vote - Nicola Sturgeon - BBC News

Why this supreme court ruling presents an opportunity for Scottish nationalists | Rory Scothorne | The Guardian

Supreme Court's Scottish referendum verdict doesn't end Sunak’s need for a union strategy | The Institute for Government

18 December - SNP to hold special conference on independence in 2023 - BBC News