The author, an attorney and commentator, is an FT contributing editor
Legally, the Scottish Government should be disappointed by Wednesday’s High Court ruling that no independence referendum can be held without the consent of Westminster and Whitehall.
Nicola Sturgeon’s government wants to hold a plebiscite on the union of Scotland and England without London’s consent. The court ruled that there was a serious matter at stake and that the UK government’s two attempts to eliminate the claim due to technical difficulties failed. And as with any arguable case, it could have gone either way.
Under the Scotland Act, the Scottish Parliament cannot legislate on a matter which “relates to reserved matters”, which includes the trade union. The Scottish Government argued that a referendum, which would not be binding in itself, did not concern the union or the sovereignty of Parliament. It admitted that it would actually involve legislation for independence, but not just a referendum.
The Supreme Court could have taken a narrower view of what is meant by the phrase “relates to”. But it unanimously rejected the Sturgeon government’s submission, stating that a referendum “is not merely an exercise in public consultation or an inquiry of public opinion”. Instead, it was “a democratic process conducted in accordance with the law and resulting in an expression of the voters’ opinion on a specific public policy issue on a given occasion”.
The proposed independence referendum would be advisory. It would not implement itself, because without further legislation it would have no immediate effect. Nevertheless, the court ruled that holding such a vote would still be a reserved matter because it would be “related” to the union of Scotland and England or to the sovereignty of Parliament.
As the court also put it: “[a] a lawful referendum on the issue targeted by the bill would undoubtedly be a major political event, even if its outcome had no immediate legal consequences.” Some may think it is not the job of a court to take such political, non-legal factors into account, but the Supreme Court has rightly said that the Scotland Act requires it to deal with the issue “in all circumstances” – even if it were not just the legal ones.
The Scottish Government should be proud of the way in which it has taken the case to the High Court. The design of the case was ingenious – and the fact that the court judged the case on its merits shows that it was not frivolous or contrived. The Lord Advocate of the Scottish Government, Dorothy Bain KC, was impressive in her arguments. Things couldn’t have been better.
This was a rare case in which the Supreme Court did not sit as an appellate court. For certain devolution issues, it is a court of first instance.
But here too it is a court of last instance. There is no appeal to the Supreme Court. The legal path to an independence referendum without the consent of Westminster or Whitehall is now coming to an end. The issue returns from the realm of law to the realm of politics.
And so it is from a political perspective that the Scottish Government can give some encouragement. Wednesday’s verdict shows the limitations of the devolution scheme. This will bolster pro-independence supporters, who will insist the decision shows Scotland locked in a supposedly “voluntary” union with no unilateral way out.
Independence advocates will also argue that the verdict shows that under United Kingdom law the Scottish Parliament appears to be little more than a statutory body, subject to a strict rule of ultra vires.
Supporters of Scottish independence may be disappointed by the legal decision, but they will not be disappointed by the political signal this verdict sends.