Why Scotland can’t vote on independence
A quick guide to the Supreme Court ruling
Today’s ruling from the UK Supreme Court is both surprising and unsurprising. The five justices were unanimous in deciding that the Scottish parliament had no power to legislate for the holding of a referendum on Scottish independence.
How did they manage to produce their 35-page judgment much more quickly than they had predicted? Because they had ducked the issue, as I speculated?
No, said Lord Reed, because they were unanimous and because they prioritised the case. I suspect Reed, as president, wrote it himself.
Why had they answered questions about a draft bill, in effect giving legal advice that I had thought should be for the Scottish government’s senior law officer to give?
Because the Scotland Act 1998 allowed it and the law officers are not infallible. If the lord advocate is mistaken in a future case, said the court, “a legitimate and politically important proposal for legislation will never see the light of day”.
Should the court accept the reference? Yes, said the justices, in these exceptional circumstances:
The reference has been made in order to obtain an authoritative ruling on a question of law which has already arisen as a matter of practical importance. It is a question on which the lord advocate has to advise ministers. The answer to the question will have practical consequences: it will determine whether the proposed bill is introduced into the Scottish parliament or not. The question is therefore not hypothetical, academic or premature.
If that was surprising, the outcome was not.
Would the the proposed bill relate to “the Union of the Kingdoms of Scotland and England or the Parliament of the United Kingdom”?
The lord advocate, Dorothy Bain KC, presented both sides of the argument on the question she had asked. On the one hand, she said, the court was entitled to infer that the objective of the Scottish government in introducing the bill would be to achieve independence from the United Kingdom.
On the other, she pointed out, the referendum would be purely advisory.
For the court, though, the answer was clear:
The purpose of the bill is to hold a lawful referendum on the question whether Scotland should become an independent country. That question evidently encompasses the question whether the union between Scotland and England should be terminated, and the question whether Scotland should cease to be subject to the sovereignty of the parliament of the United Kingdom…
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…
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.
The clear expression of its wish either to remain within 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.
It followed that the draft bill related to matters that were reserved to the United Kingdom parliament. The Scottish parliament lacked the competence to pass it.
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