THE Supreme Court has ruled that the Scottish Parliament does NOT have the competence to legislate for an independence referendum without Westminster’s permission.
After a two day hearing in October, justices said they had 8000 pages of documents to review, but would rule as soon as possible.
Just six weeks later, the five judges have made their decision and ruled that Scotland cannot hold a referendum without Westminster’s backing.
First Minister Nicola Sturgeon instructed Lord Advocate Dorothy Bain to refer the case to the UK’s highest court in an attempt to break the constitutional deadlock over whether or not Holyrood can pass a bill to hold a referendum vote without Westminster consent.
As the constitution is a reserved matter under the Scotland Act 1998, Supreme Court justices were asked to answer two points; whether the court will rule on a draft bill and the Scottish Parliament’s competence to pass such legislation.
Lord Reed, president of the court, said the decision was returned so quickly because justices were unanimous.
The court ruled that the content of the draft referendum bill does relate to "reserved matters" under the Scotland Act 1998, as a Yes result in a referendum would have an impact by ending the Union and therefore the sovereignty of the UK Parliament in relation to Scotland.
The justices rejected the Lord Advocate's argument that the outcome of the referendum and the political implications should not be considered by the judges, and that they should only rule on a point of law.
Reed said: “A lawfully-held referendum would have important political consequences in relation to the Union and the United Kingdom Parliament.
“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.
“It would either strengthen or weaken the democratic legitimacy of the Union and of the United Kingdom Parliament’s sovereignty over Scotland, depending on which view prevailed, and would either support or undermine the democratic credentials of the independence movement.
“It is therefore clear that the proposed bill has more than a loose or consequential connection with the reserved matters of the Union of Scotland and England, and the sovereignty of the United Kingdom Parliament.”
The SNP's written submission, on the right of self-determination, was also rejected by the justices who said they were "unable to accept" the argument.
Lord Reed told the court that the party's submission was based primarily on the right to self-determination in international law and used Quebec and a ruling in the Canadian Supreme Court, adding that this only exists in situations "of former colonies, or where a people is oppressed, or where a group is denied meaningful access to government".
The Canadian Supreme Court found that Quebec did not meet the threshold of colonial or oppressed people.
"The same is true of Scotland and the people of Scotland," Reed added.
The justices also told the court that they had decided to rule on the issue as it was not a "hypothetical or premature reference", as the UK Government's law officers had argued during the two-day hearing in October.
The justices found that the Lord Advocate’s reference is a devolution issue and that they were within their remit to rule on it, before moving on to the question of Holyrood’s competence.
At the end of the 35 page decision, it states: “The provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be “Should Scotland be an independent country?” does relate to reserved matters.
”In particular, it relates to (i) the Union of the Kingdoms of Scotland and England and (ii) the Parliament of the United Kingdom.”
As there had been no modification of the definition of reserved matters, through an Order in Council or in any other form, the court ruled that the Scottish Parliament does not have the powers to legislate for a referendum.
