The UK’s highest court has ruled that the Scottish Parliament cannot legislate for a second independence referendum without Westminster’s consent.
The case was brought to the court after First Minister Nicola Sturgeon set out plans to hold a second vote on independence on 19 October, 2023.
But Supreme Court president Lord Reed said on Wednesday: “The Scottish Parliament does not have the power to legislate for a referendum on Scottish independence.”
It means the Scottish Government’s top law officer, the Lord Advocate, will not be able to clear the Bill for passage through the Scottish Parliament.
Dorothy Bain KC had referred the Scottish Independence Referendum Bill to the court, seeking its decision on whether Holyrood had the competence to pass the legislation.
The UK Government, which is opposed to a second vote on independence, said it is “obvious” that the Bill relates a matter reserved to Westminster.
Its legal representative, Sir James Eadie KC, also argued that the Bill was at too early a stage for the court to issue a ruling on.
Reading out a summary of the judgment, he firstly said the court was not being asked to express “a view on the political question of whether Scotland should become an independent country”.
He said: “Its task is solely to interpret the relevant provisions of the Scotland Act and decide whether the proposed Bill would relate to reserved matters.”
Lord Reed, who was part of a panel of five justices, said the Lord Advocate had argued the Bill did not relate to reserved matters as the referendum would not automatically bring about the end of the union.
He said the court did not agree with this interpretation, saying a referendum would have “practical” as well as legal effects.
The Supreme Court president said: “A lawfully held referendum would have important political consequences relating 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.”
Lord Reed also addressed a written submission from the SNP, which was permitted to intervene in the case.
The party had stressed the need to consider national self-determination in its legal argument for why the court should rule that the Bill could go ahead.
However Lord Reed said the court did not accept this argument, saying previous international rulings on self-determination had related to oppressed people or colonies.
Referring to a Canadian Supreme Court decision, he said: “The court found that Quebec did not meet the threshold of a colonial people or an oppressed people, nor could it be suggested that Quebecers were denied meaningful access to government to pursue their political, economic, cultural and social development.
“The same is true of Scotland and the people of Scotland.”
Reacting to the Supreme Court ruling, Sturgeon said that “Scottish democracy will not be denied”.
She stated: “Today’s ruling blocks one route to Scotland’s voice being heard on independence – but in a democracy our voice cannot and will not be silenced.”
Sturgeon added she would be making a “full statement” in response to the Supreme Court ruling later today.
Scottish Labour Leader Anas Sarwar said: “It was right for the Scottish Government to seek legal clarity on this question.
“The Supreme Court's answer was clear and I thank them for their speedy work in this case - we must now focus on the problems facing our country, from rising bills to the crisis in our NHS.
“There is not a majority in Scotland for a referendum or independence, neither is there a majority for the status quo.“
Scottish Conservative leader Douglas Ross commented: “This was a clear and unequivocal verdict delivered by the highest court in the country – and the SNP government and their supporters must respect it.
“Nicola Sturgeon insisted on taking this case to the Supreme Court at the cost of hundreds of thousands of pounds to the Scottish taxpayer – and this ruling confirms that it was a waste of time and money.
“Following this judgment, the SNP must now get back to work, drop their referendum obsession and focus on what really matters to the people of Scotland.”
Struan Stevenson, chief executive of pro-union group Scottish Business UK, said: “Today’s decision from the Supreme Court is positive news for the Scottish economy because it signals to ministers at Holyrood that they are running out of options in their latest beleaguered referendum campaign.
“Pressing on now would be an utter distraction at a time when business needs government laser-focused on working with companies to create the conditions for growth, as well as working hard to sustain Scotland’s vital infrastructure and public services.”
Rosie Walker, partner and head of litigation at Gilson Gray, explained: “From a legal perspective, the decision has many positives - we now have a definitive answer as to whether the Scottish Parliament can pass a Bill setting up a referendum without consent from the UK Government.
“Many had feared the Supreme Court’s decision would only answer the jurisdiction question with a risk the court might have found it was unable to decide the matter today - that would have led to paralysing uncertainty - so by deciding that it had jurisdiction and by giving a clear answer to the question posed, the law at least is clear.
“The politics, however, is far less certain,“ she continued, adding: “Back in the summer the First Minister announced a fall back plan if the Supreme Court found against her, this was to use the 2024 UK General Election as a de facto referendum, but that may be far easier said than done.
“Legal challenges will almost certainly be brought to any decision of the Scottish Government to treat the outcome of the next General Election as a de facto referendum - the one thing we can be sure of now though is that further legal challenges look likely.”
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