Ruling against the Scottish independence referendum throws the ball back into the political arena

Ruling against the Scottish independence referendum throws the ball back into the political arena

The Author, a lawyer and commentator, is an FT contributing editor

From a legal perspective, the Scottish Government should be disappointed by Wednesday’s Supreme Court ruling that an independence referendum cannot be held without the consent of Westminster and Whitehall.

Nicola Sturgeon’s government wants to hold a referendum on the union of Scotland and England without permission from London. The court ruled that there was a serious case to be heard, and the British government’s two attempts to strike out the technicalities claim failed. And as with any debatable matter, it could have gone either way.

Under the Scotland Act, the Scottish Parliament cannot legislate a matter where it “relates to reserved matters”, which includes the Union. The Scottish Government argued that a referendum, which in itself would not be binding, did not “relate” to the Union or to the sovereignty of Parliament. It admitted that actual legislation for independence would relate to it, but not just a referendum.

The Supreme Court could have taken a narrower view of what is meant by the expression “connects to”. But it unanimously rejected the Sturgeon government’s proposal, saying a referendum “is not simply an exercise in public consultation or a survey of public opinion”. Instead, it was “a democratic process held in accordance with law which results in an expression of the views of the electorate on a specific matter of public policy on a particular occasion”.

The proposed referendum on independence will be advisory. It would not be self-executing, for it would not have immediate effect without further legislation. Nevertheless, the court ruled that holding such a vote would still be a reserved matter because it would “relate to” the union of Scotland and England or to the sovereignty of Parliament.

As the court also put it, “[a] legal referendum on the issue envisaged in the bill would undoubtedly be an important political event, even if the outcome had no immediate legal consequences”. Some might argue that it is not for a court to take into account such political, non-legal factors, but the High Court rightly said that the Scotland Act required it to approach the question “in all the circumstances” – even if they were not only the legal ones.

The Scottish Government can be proud of how it managed to get the case before the Supreme Court. The design of the case was ingenious – and the fact that the court decided the case on the merits shows that it was not frivolous or contrived. The Scottish Government’s Lord Advocate, Dorothy Bain KC, was impressive in her arguments. The matter could not have been put better.

This was a rare case where the Supreme Court did not sit as a court of appeal. On certain matters of delegation, there is a court of first instance.

But there is also a court of last resort here. There is no appeal from the Supreme Court. The legal route to a referendum on independence without the consent of Westminster or Whitehall has now ended. The question returns from the realm of law to the realm of politics.

And so it is from a political perspective that the Scottish Government can be encouraged. Wednesday’s judgment shows the limitations of the devolution settlement. This will bolster supporters of independence, who will argue that the decision shows that Scotland is locked into an allegedly “voluntary” union with no unilateral way out.

Supporters of independence will also argue that the judgment shows that under UK law the Scottish Parliament appears to be little more than a statutory body, subject to a strict ultra vires rule.

Supporters of Scottish independence may be disappointed by the legal decision, but they will not be disappointed by the political signal that this judgment sends.

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