Britain’s highest court ruled on Wednesday that the devolved Scottish government could not pass a bill through Holyrood allowing for an independence referendum without the consent of Westminster as this would be outside the legislative competence of the Scottish parliament.
The SNP-run Scottish government had drafted a bill which made provision for a second referendum on the question “Should Scotland be an independent country?” It hoped to hold the referendum in October 2023.
The lord advocate, the senior law officer of the Scottish government, had approached the UK Supreme Court to find out if such a referendum would be legal.
Under the Scotland Act, 1998, the power of the Scottish parliament to make legislation is limited. A provision of a bill is not law if it relates to matters reserved to the UK parliament in Westminster. Reserved matters include “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom”.
The five justices on Wednesday ruled that the SNP’s proposed Scottish Independence Referendum Bill did relate to such reserved matters.
The powers of the Scottish parliament were not in issue during the 2014 referendum because an Order in Council modified the definition of reserved matters to enable the Scottish parliament to pass the 2014 referendum legislation. The UK government has refused to do this again.
The Scottish government had argued the Scottish people had the right to self-determination under international law.
But the five justices unanimously ruled that the Scotland Act did not infringe any principle of self-determination, saying that international law favoured the territorial integrity of states and did not confer any right to secede. They referred to the Supreme Court of Canada’s findings that Quebec did not have the right to secede from Canada unilaterally as “Quebec does not meet the threshold of a colonial people or an oppressed people”.
Scotland’s first minister, Nicola Sturgeon, said she was disappointed but accepted the judgment. “In securing Scotland’s independence, we will always be guided by a commitment to democracy and respect for the rule of law,” she said.
“Until now it has been understood and accepted that the UK is a voluntary partnership of nations. A so-called partnership in which one is denied the right to choose a different future cannot be described in any way as voluntary or even a partnership at all,” she said, announcing she would not back down, and the next general election would become a “de facto referendum”.