UK

Scotland needs go-ahead from London for independence vote, UK court rules

Supreme court says Scottish parliament does not have power to legislate for referendum

Peter Grant MP (second left), from the Scottish National Party stands among activists and journalists outside the UK supreme court in London to listen to judges reading a ruling on the Scottish independence referendum. The court decided that Scottish parliament does not have the power to legislate a referendum on its union with the UK. Photograph: Dan Kitwood/Getty Images

Lukanyo Mnyanda in Edinburgh and Jane Croft in London
Wed Nov 23 2022 - 18:50

The UK supreme court has ruled that the Scottish government does not have the legal authority to hold an independence referendum without agreement from Westminster, scuppering Edinburgh’s plan to have a vote next year.

The ruling cuts off the legal route for Nicola Sturgeon, Scotland’s first minister, to unilaterally hold a rerun of the 2014 referendum in which Scots voted 55 per cent to 45 per cent in favour of maintaining their union with England.

Ms Sturgeon, who is also leader of the Scottish National party, told a press conference that she was “very disappointed” with the ruling. She added she would seek to make the next UK general election, due by 2024, “a de facto referendum” on independence. “My resolve to achieve independence is as strong as it has ever been,” she said.

But the court’s ruling has left Ms Sturgeon with limited options to achieve her goal. Even if the SNP won the majority of Scottish votes in a UK general election, any move to use the result as a green light for another referendum would have no legal standing in the face of opposition from Westminster.

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The 2014 referendum was made possible after the then prime minister David Cameron gave the Scottish government legal authority to hold it. His successors have refused to do likewise, arguing that not enough time has passed since the last vote. Wednesday’s ruling means that “the only way they can achieve a legal referendum is either getting a similar power to what they did in 2014, or if amendments were made to the Scotland Act”, said Lynda Towers, director of public law at Scottish firm Morton Fraser. “It is the end of the court road,” she added.

Ms Sturgeon had planned to hold a plebiscite in October 2023, but lord advocate Dorothy Bain, Scotland’s most senior legal officer, referred the draft Scottish parliament bill on a referendum to the supreme court because of doubts the vote would be legal.

Britain's next national election will be an effective referendum on Scottish independence, Scotland's first minister Nicola Sturgeon has said. (Reuters)

In a ruling on the issue, Lord Robert Reed, president of the supreme court, said the judges agreed that holding an advisory referendum on independence would be beyond the Scottish parliament’s powers.

“A lawfully held referendum would have important political consequences relating to the union and the UK parliament,” Lord Reed said, maintaining that even a non-binding vote could have wide-ranging constitutional implications.

“Its outcome would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.”

[ Scottish government planning for independence referendum in October 2023 ]

Under current devolution law, legislation relating to the union between Scotland and the rest of the UK is reserved for Westminster.

Sir James Eadie, representing the UK government, had said the proposed plebiscite would not just be an opinion poll but part of a political strategy that sought the end of the 1707 union between Scotland and England.

Prime minister Rishi Sunak said the UK government respected the “clear and definitive” ruling and that now was the time for “politicians to work together”.

“The people of Scotland want us to be working on fixing the major challenges that we collectively face, whether that’s the economy, supporting the NHS or indeed supporting Ukraine,” he said.

Labour said the opposition did not support another independence referendum, adding: “We will not be doing any deals with a party that wants to break up the UK.”

The SNP, which governs in Edinburgh in a power-sharing agreement with the pro-independence Scottish Greens, has maintained that the parties’ victory in the Scottish parliamentary elections in 2021 has given them a mandate to hold another referendum.

But treating the 2024 election as an indicator of support for independence in the face of Westminster opposition, is risky for Ms Sturgeon, say analysts.

“Presumably if they don’t get a majority of votes, they’ve got to drop the idea that they’ve got a mandate for independence,” said Michael Keating, emeritus professor of politics at the University of Aberdeen.

“That’s a big gamble on their side. If they win a majority, they are back to where they were because the UK government is not going to recognise that.”

[ Scottish voters evenly split over independence amid fresh referendum bid ]

Opinion polls have consistently shown that Scots are split over whether to leave the UK, but as the cost of living bites there is evidence that it is less of a priority.

A survey this week by Edinburgh-based research company Diffley Partnership and the David Hume Institute, a think-tank, found that just 15 per cent of respondents said independence was among their top-three priorities last month, down from 19 per cent in August.

“They [the SNP] will try and trade on the argument that democracy is being denied,” said Mark Diffley, founder of Diffley Partnership. “[But] it’s going to be a challenge to persuade people that with everything going on in their lives, the referendum should be at the top of their priorities.” – Copyright The Financial Times Limited 2022

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