Dr John Stanton, a Senior Lecturer in The City Law School, comments on the constitutional issues at stake.
Law and politics are intimately linked. On occasion, the UK courts are called upon to consider matters of constitutional law, which, whilst strictly framed and understood in purely legal terms by those courts, nonetheless have political ramifications.
This can on occasion leave those courts open to unfounded criticism for a perceived interference in politics. Judgment on the legal questions arising from the Brexit process, for example, led to the mistaken belief that the courts were seeking to overturn a democratic instruction. It is in entertaining these important constitutional questions, however, that the courts are fulfilling one of their most valuable responsibilities: preserving and clarifying the boundaries of the legal constitution within which the day-to-day questions of politics must be framed.
Dissatisfaction with devolution
In this context, on 23 November, the Supreme Court gave judgment in Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 of the Scotland Act 1998  UKSC 31. The question before the court in this case was simple: “[d]oes the Scottish Parliament have power to legislate for the holding of a referendum on Scottish independence?”. The political sensitivities are widely known. A growing nationalist movement in Scotland in recent decades reached its climax with the holding of a referendum in 2014 on the question of Scotland’s independence from the UK.
Though that referendum favoured continued membership of the UK, since then dissatisfaction with the realities of the current devolution settlement and, more significantly, Brexit – against the wishes of a majority of the Scottish people – have brought the question under fresh scrutiny. Scottish First Minister, and leader of the SNP, Nicola Sturgeon, has made clear the desire to seek another independence referendum. Whereas the first referendum, however, took place with the agreement of the UK Government, this time, the UK Government has withheld its consent for a referendum to be held, thus motivating the question before the court in this case.
The legal framework of devolution is such that certain subject matters are reserved for the UK-wide governmental and legislative institutions, meaning that the Parliaments and Governments in Scotland, Wales, and Northern Ireland have no jurisdiction in these fields. Such fields include the constitution, defence, and foreign affairs.
Matters not so reserved, though, are presumed to be within the authority of the devolved institutions. The Supreme Court held in this case, inter alia, that the decision to hold another referendum on Scottish independence would relate to a matter reserved for Westminster, namely “the Union of the Kingdoms of Scotland and England” as made clear in the Scotland Act 1998.
The finding, therefore, is simple. The Scottish Parliament has no power to authorise the holding of another referendum. In law, the finding is uncontentious and based on well-established principle. Politically, however, the decision is likely to cause tensions between Scotland and the rest of the UK. Whilst Sturgeon has made clear that she will respect the Supreme Court’s decision, the desire to seek independence remains. Time will tell whether this leads to a breakdown in political relations between Edinburgh and London or whether pursuit of independence will be left until both parties are on the same page.