Visual credit: Jessica Deeks
Isabelle Laliberté – LLM Candidate (Cambridge), JD (Ottawa) and LLB (Université du Québec à Montréal). Isabelle worked as a judicial law clerk at the Supreme Court of Canada (2021-2022) and at the Court of Appeal of Québec (2018-2020). She is a member of the Québec (2018) and Ontario (2021) bars.
On November 23, 2022, the Supreme Court of the United Kingdom (the “Court”) unanimously held that it was outside of Scotland’s legislative competence to hold a referendum on Scottish independence without the consent of the UK Government. The Court also concluded that Scotland does not have a right to self-determination under international law, basing its reasoning on this point on the Reference re Secession of Quebec,  2 SCR 217. This article provides an overview of the Court’s decision and considers its implications for any future independence referendum in Scotland.
In 2014, Scotland held a referendum which asked Scottish residents whether Scotland should be an independent country. The “No” side, voting in favour of maintaining Scotland’s status quo within the United Kingdom, won with 55.3% of the votes cast.
In January 2021, Nicola Sturgeon, leader of the Scottish National Party (the “SNP”) and First Minister of Scotland, announced that the SNP would introduce a bill to hold a second independence referendum if it won a majority in the upcoming Scottish Parliament election – “whether Westminster consents or not.” It turned out that the SNP, joined by another pro-independence party (the Scottish Greens), did win a majority of seats in the Scottish Parliament, and Sturgeon announced that a second referendum on Scottish independence would be held on October 19, 2023. However, one month after Sturgeon’s announcement, then-Prime Minister Boris Johnson rejected the idea, closing the door to any agreement modifying the Scotland Act and permitting a second referendum.
The question, therefore, arose, in the absence of any agreement with the UK Government and modification of the Scotland Act, whether a proposed Scottish Independence Referendum Bill (the “Proposed Bill”) was within Scotland’s legislative competence. The Proposed Bill is only a “proposed” Bill because, in Scotland, unless the Lord Advocate—the senior Scottish Law Officer—is satisfied that a Bill would be within the legislative competence of the Scottish Parliament, the Bill cannot be officially introduced to the Scottish Parliament. In this case, the Lord Advocate considered that “she would be unlikely to have the necessary degree of confidence that the Bill” was within Scotland’s legislative competence. Given the importance of the issue, the Lord Advocate, following a request from Sturgeon, agreed to refer the question to the Court (Reference, para. 10, 44-46).
ii. The Judgment
There were three issues before the Court. First, the Court had to decide whether it had jurisdiction to hear the matter, which the Court concluded it did (para. 13-47). Second, the Court had to decide whether it should decline to accept the Lord Advocate’s reference. This question was not to be taken lightly as the Court had, on two prior occasions, declined to decide questions referred to it. However, given the exceptional circumstances of the case, the Court concluded that it should accept the reference. In reaching that conclusion, the Court considered that the judgment would have significant practical consequences, as it would determine whether the Proposed Bill was introduced to the Scottish Parliament (para. 48-54). Third, and this was the key question in this case, the Court had to decide whether the Proposed Bill was within Scotland’s legislative competence.
In the absence of any legislation by the UK Parliament, the holding of a referendum requires authorization by an Act of the Scottish Parliament. However, the power of the Scottish Parliament to make legislation is limited. A provision will be outside Scotland’s legislative competence if it “relates to reserved matters” (s. 29(2) of the Scotland Act). Notably, in this case, “reserved matters” include “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Scotland Act, sch. 5, para. 1(b) and (c)). The phrase “relates to” has been defined broadly by the Court: it “indicates something more than a loose or consequential connection” (para. 57). Therefore, the question the Court had to answer was whether the Proposed Bill “relates to” the Union of the Kingdoms of Scotland and England or the Parliament of the United Kingdom. If the Proposed Bill did relate to those matters, then it would be outside of Scotland’s legislative competence. In that case, in order to pass the Proposed Bill, Scotland would need to come to an agreement with the UK Government to first make a similar modification to the Scotland Act as was done prior to the 2014 Scottish independence referendum. This modification would change the scope of “reserved matters” to permit the Scottish Parliament to pass the Proposed Bill.
To determine whether the Proposed Bill was within the legislative competence of the Scottish Parliament, the Court considered the purpose, as well as the legal and practical effects of the Proposed Bill. The Court held that the purpose of the Proposed Bill was to “hold a lawful referendum on the question whether Scotland should become an independent country,” which involves the question of “whether the Union between Scotland and England should be terminated, and the question whether Scotland should cease to be subject to the sovereignty of the Parliament of the United Kingdom” (para. 77).
Considering the effects of the Proposed Bill, it is important to note that a referendum would not have any immediate legal consequences. The only effects of a referendum would be, arguably, political in nature. Nonetheless, the Court noted that “a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion. It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion” (para. 78). The Court explained that a clear referendum result either for or against Scottish independence would possess the authority of a democratic expression and strengthen or weaken the democratic legitimacy of the Union. It would therefore “have important political consequences relating to the Union and the United Kingdom Parliament”, as the Brexit referendum demonstrated (para. 79, 81). Therefore, the Court concluded that the Proposed Bill related to reserved matters and was therefore outside of Scotland’s legislative competence (para. 82–83).
The Court then considered the SNP’s arguments, as an intervenor, based on an asserted right of the Scottish people to self-determination under international law. The SNP submitted that a broad reading of the phrase “relates to” in section 29(2)(b) of the Scotland Act would be incompatible with the right of the Scottish people to self-determination. The SNP, therefore, argued for a narrower reading of the phrase.
The Court rejected that argument, concluding, without significant elaboration, that the right to self-determination was “not in play here” (para. 88). The Court based its reasoning almost entirely on the Reference re Secession of Quebec. The Court cited approvingly paragraph 154 of the judgment, in which the Supreme Court of Canada held that Quebec “does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development,” and concluded that Quebec does not enjoy a right at international law to unilaterally secede from Canada. The Court simply stated that “these observations apply with equal force to the position of Scotland and the people of Scotland within the United Kingdom” (para. 89). The Court also noted that this conclusion was consistent with the United Kingdom’s submission to the International Court of Justice in the case of Kosovo that “international law favours the territorial integrity of States” (para. 89). As the SNP’s submissions were based on a right to self-determination under international law, and the Court held that no such right existed in this case, the Court rejected the SNP’s submissions.
iii. What’s Next
As a result of this judgment, Scotland does not, like Quebec, have a right to self-determination under international law. However, unlike Quebec, the devolved Scottish Parliament does not have the legislative competence to hold an independence referendum on its own terms. In order to hold an independence referendum, Scotland will need the UK Government’s agreement to modify the Scotland Act in order to change, either temporarily or permanently, the scope of “reserved matters.” It seems very unlikely that any such agreement will be forthcoming in the near future. Following the release of the judgment, UK Prime Minister Rishi Sunak welcomed the “clear and definitive ruling” from the Supreme Court and later indicated that he will seek to avoid another referendum.
Nicola Sturgeon reacted immediately to the judgment, tweeting that while she was disappointed by the ruling, she would respect it. She added: “[a] law that doesn’t allow Scotland to choose our own future without Westminster consent exposes as myth any notion of the UK as a voluntary partnership & makes case for Indy. […]”. Sturgeon later indicated her intention to use the next UK general election as a “de facto referendum,” by campaigning on the single issue of Scottish independence. This approach would mean that every vote in favour of the SNP would be seen as a vote for independence. In the event that it does receive more than 50% of the vote, the SNP would seek to trigger separation talks with the UK Government.
A few weeks later, on February 15, 2023, Sturgeon announced her intention to resign as First Minister of Scotland, while remaining in office until her successor is elected. The SNP must therefore find a new leader, which will be known by 27 March.
The reality is that having been unable to convince the UK Government to agree to a referendum, and being constitutionally incapable of holding an independence referendum on its own, the SNP does not appear to have any choice other than to use the next UK general election as a “de facto” referendum on Scottish independence. Many questions on how such a de facto referendum would work remain unanswered, particularly the mechanics of campaigning on a single issue and how to factor in the results in favour of other pro-independence parties. It is also unclear if in the event that the SNP and other pro-independence parties -notably the Scottish Greens and Alba – do receive a substantial proportion of the votes cast, the election result would have sufficient authority and legitimacy to trigger talks with the UK Government, or whether the independence question would be lost among the other issues fought over during general elections.
 Note here that the Court authorized the SNP to intervene, notwithstanding that it is the political party forming the Scottish Government in which the Lord Advocate is a Minister, so that the Court could hear a wider range of arguments (para. 3).