Brexit Institute News

Scottish Independence in the UK Supreme Court

Sionaidh Douglas-Scott (Queen Mary University of London)

REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998

On 23 November 2022, the UK Supreme Court gave judgement on the legal viability of a second Scottish independence referendum, in a reference made by the Lord Advocate (the Scottish Government’s chief legal advisor) Dorothy Bain KC. The Supreme Court held that the Scottish Parliament lacked the legal competence to adopt legislation for a second independence referendum, because such legislation would relate to matters reserved to the UK under schedule 5 Scotland Act 1998 (namely, the Union of the Kingdoms of Scotland and England and/or the UK Parliament).

This reference was made under the somewhat obscure paragraph 34 schedule 6 Scotland Act (which provides that the Lord Advocate ‘may refer to the Supreme Court any devolution issue which is not the subject of proceedings’). Indeed, much of the argument in Court, and more than half of the judgment, were taken up with the question of whether the Court should decline to hear this reference because it was ‘premature’, no referendum legislation having yet been adopted by the Scottish Parliament. In fact, although an independence referendum Bill was published in June 2022, it had not been introduced into the Scottish Parliament while the Lord Advocate sought to determine its legality in Court.

The Court accepted the reference, thus confounding the expectations of those who predicted that the case would be dismissed as premature. However, the Court found that the reference was not hypothetical, academic nor premature, but instead necessary to obtain an authoritative ruling on a devolution matter of public importance. (This finding distinguished this case from the earlier Keatings judgment, where the Scottish Court of Session rejected the claim that the Scottish Parliament could legislate for an independence referendum on the basis that the issue was academic, as no such Bill was then before the Scottish Parliament.) The Supreme Court finding, although it might seem technical, was important. If the Court had refused the reference, as the UK Government had argued it should do, then the Scottish Government would have been left in an awkward situation: with insufficient certainty to certify a referendum Bill as within competence, and no means of ever authoritatively resolving the issue.

However, the real meat of the case came with the Court’s determination that a referendum Bill would relate to reserved matters. Well-known caselaw, such as the 2010 case of Martin v Her Majesty’s Advocate, has established that a statutory provision relates to a reserved matter if it has something more than ‘a loose or consequential connection’ with it. Under section 29(3) Scotland Act 1998, this matter had to be determined by reference to the purpose of the provision (ie the proposed referendum) having regard to its effect in all the circumstances. The Lord Advocate argued that the draft Bill was a ‘consultative referendum’ whose ‘purpose’ was, in the very words of the draft Bill itself, ‘to make provision for ascertaining the views of the people of Scotland on whether Scotland should be an independent country’. As such, she argued that the Bill was deliberately designed as an advisory exercise that would not relate to Union or the UK Parliament because its effect, in legal terms, would be zero. As a purely consultative exercise, it could not end the Union. Further steps would have to be taken. In this way, the Lord Advocate argued that a consultative referendum would not ‘relate to’ the reserved matter of the Union, in more than the ‘loose or consequential’ sense required by caselaw.

However the Court disagreed, finding that, even if the referendum had no immediate legal consequences, it would still have important political consequences, and more than a loose or consequential connection with the reserved matters of the Union of Scotland and England and the sovereignty of the UK Parliament. In this, the Court seemed to accept the case of the UK Government, (represented in Court by the UK Government Treasury Counsel, James Eadie KC) who had argued that the scope and purpose of the draft Bill clearly related to the Union and UK Parliament, because the possibility that a ‘Yes’ vote could lead to the UK Parliament losing its sovereignty over Scotland created more than a ‘loose’ connection.

Overall, perhaps the Supreme Court’s decision was not so very surprising. For a start, only five Supreme Court judges (Lord Reed, Lady Rose, Lord Lloyd-Jones, Lord Sales and Lord Stephens) sat to hear the case – not the full Court of 11 who heard the Miller I and Miller/Cherry Brexit cases. Therefore, although this case was noted as important by Lord Reed, it was not seen as meriting a hearing by a full Supreme Court. Further, although the Supreme Court had found against the UK Government in both Miller cases – a fact which might have appeared encouraging to the Scottish Government – those cases can be distinguished from the Lord Advocate’s reference. Lord Reed, himself Scottish in origin and legal training, is now President of the UK Supreme Court, which was not the case in the Miller disputes, and the ‘Reed Court’ appears to take a somewhat different judicial approach from preceding Supreme Court configurations. As Conor Gearty has argued, the Reed Court is more formalist in approach, adopting a close reading of legal texts in preference to broader arguments (such as those of relevance to Scottish independence which rest on the principle of democracy, or on unincorporated human rights such as self-determination). Furthermore, in both Miller cases the beneficiary was the UK Parliament, and parliamentary sovereignty – a doctrine that the Supreme Court, and particularly Lord Reed, is unlikely to apply to the Scottish Parliament.

Furthermore, the Supreme Court has tended to view the devolution settlement narrowly, which does not favour the Scottish Government’s arguments for independence. In Miller I, the Court found the Sewel Convention (that the UK Parliament ‘will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’) to be only a political convention and thus legally unenforceable, despite its having been legislated in section 2 of the 2016 Scotland Act. In the 2018 Scottish Continuity Bill case and 2021 UN Rights of the Child case (decided unanimously by the Supreme Court, and in which four out of the five judges in the present referendum case sat) the Court also approached the Scottish devolution settlement narrowly (not ‘generously and purposively’, as it had held in the much earlier Robinson case) – finding that the Scotland Act ‘must be interpreted in the same way as any other statute’. Therefore they concluded that it could not be applied in a way that undermined the sovereignty of the Westminster Parliament.

And finally, in Miller I, the Supreme Court took a broad approach to the ‘effect’ of actions – finding the prerogative could not be used to trigger Article 50 TEU to start the process of leaving the EU, because its practical effect would lead to the repeal of the ECA 1972, and only Parliament could repeal legislation, not the Government. Therefore it is unsurprising that the Court considered that even a consultative referendum could have wide effects, even if not legal ones, because it might ultimately lead to the breakup of the UK.

What follows?

The Supreme Court’s judgement is not startling. However, it does leave Scotland in a potentially frustrating constitutional position. The UK Union has been recognized as voluntary, and Scotland’s right to self-determination has been stressed, including by UK Government ministers. Nonetheless, Scotland’s First Minister, Nicola Sturgeon, suggested that losing in the Supreme Court will clarify that ‘any notion of the UK as a voluntary union of nations is a fiction’ and ‘any suggestion that the union is a partnership of equals is false’. And absent UK political support, it is hard to see how Scotland’s rights can be exercised in a way that would garner legal recognition from the international community.

But this is by no means an end to the issue of Scottish independence. Nicola Sturgeon had already declared that, if the Supreme Court were to find a draft Bill outside Holyrood powers, then the SNP would fight the next UK General Election as a ‘de facto’ referendum on the ‘single question’ of whether Scotland should be independent. Thus a contingency, or Plan B, already existed. The utility of this strategy has been contested. The UK General Election franchise is less inclusive than that for the Scottish Parliament which would apply for a referendum (e.g., 16 and 17 year olds, and non-Commonwealth citizens lawfully resident in Scotland have no vote) and younger voters tend to be more pro-independence. There is also no guarantee that even were the SNP to gain a majority, that this would be respected by the UK Government, given that it has ignored past SNP majorities in Westminster seats in 2017 and 2019. It has also been suggested that there is no such thing as a ‘de facto referendum’.  However, there are obvious precedents for General Elections on single issues (such as on the 1910 ‘People’s Budget’) and, it was even once argued that extra General Elections were necessary to authorise constitutional change (such as Home Rule for Ireland) – a view widely advocated by the Oxford constitutionalist academic AV Dicey, and described by 19th century UK conservative Prime Minister, Lord Salisbury, as the ‘referendal theory’.  In 1918, the UK General Election was fought by Sinn Féin on a manifesto commitment to establish an Irish Republic and resulted in a landslide victory for Sinn Féin, which it regarded as giving it the mandate to establish a provisional Dáil Éireann and Declaration of Independence.

More broadly, as Joanna Cherry KC MP has suggested, there are clear advantages to taking the ‘wider constitutional context’ of Scotland-England relations into account, rather than focussing solely on the issue of whether the Scottish Parliament has the power to hold an independence referendum under a devolution settlement barely 25 years old. The constitutional relationship between England and Scotland was founded on the Treaty of Union, a consensual union concluded between two sovereign states, which established the United Kingdom of Great Britain. Under this Union, Scotland continued with its own separate civic institutions, legal system, church and cultural heritage. This indicates that Union is a continuing  agreement between two independent nations.

Indeed, a separate intervenor brief was submitted by the SNP to the Supreme Court case, which made additional arguments based on the right of the Scottish people to self-determination, and to democracy. These arguments were dismissed by the Supreme Court, which held that the right to self–determination was not at issue. However, the right to self-determination should not be dismissed so quickly. It is a fundamental and inalienable right, located in Article 1 UN Covenant, and, although this Covenant has not been incorporated into domestic law, the SNP brief argued that UK statutes (such as the 1998 Scotland Act) should be interpreted compatibly with the UK’s international law commitments. Many UK Prime Ministers and politicians, including Margaret Thatcher, have acknowledged that the Union is a voluntary one, and that Scotland has a right to self-determination. Therefore, through its own conduct over many years, the UK Government has generated an expectation allowing for independence in principle. This situation clearly distinguishes the UK from States such as Spain, whose Constitution declares ‘the indissoluble unity of the Spanish nation’, or the US, whose Supreme Court in 1868, in Texas v White, held that there was no right to state secession.

Furthermore, as the UK Supreme Court itself acknowledged in Miller/Cherry ‘The legal principles of the constitution are not confined to statutory rules, but include constitutional principles developed by the common law’. Democracy is a key constitutional principle, and yet the UK Government has undermined democracy by ignoring the SNP’s 2021 manifesto pledge and its endorsement by the Scottish people, as well as the January 2020 Scottish Parliament vote for an independence referendum.

These points based on self-determination and democracy may, as I have argued elsewhere, be supplemented by legal arguments based on consent, change of circumstances and the requirement to negotiate in good faith. Together, these arguments make a case that the UK Government’s refusal to negotiate the independence issue with Scotland is unreasonable. To be sure, such arguments must be supported by evidence that the Scottish people desire to exercise their right to self-determination and leave the Union. If this were not so, the Scottish Government would itself be violating the principle of democracy. The clearest way to demonstrate this would be by a referendum on independence, and that is why referendums have been the focus of so much discussion to date. But its existence could be demonstrated in other ways, such as at a General Election.

And so the issue of Scottish independence is not dead, just as the issue of Irish independence was not forgotten when successive Irish Home Rule Bills failed in Westminster in the 19th century. But the issue moves to a broader legal, political and constitutional stage, one with a longer history than the Devolution Acts.

Sionaidh Douglas-Scott is Anniversary Chair in Law at Queen Mary University of London. Previously she was Professor of European and Human Rights law at the University of Oxford, and before that Professor of Law at King’s College London. She retains a link with Oxford as honorary research fellow at Lady Margaret Hall, Oxford.