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12 OPINION Why the UK supreme court ruled Scotland cannot call a second independence referendum THE UK supreme court has ruled that the Scottish parlia- ment does not have the power to unilaterally call a second ref- erendum on Scottish independ- ence. The judgment comes in response to a request from the lord advocate (the senior law officer of the Scottish govern- ment) for a decision on whether a second vote could go ahead, following the first referendum in 2014. The Scottish government and Scottish parliament get their powers from the 1998 Scotland Act. In deciding the two main legal questions raised in this case, the UK supreme court was required to determine wheth- er the powers extended to the Scottish parliament under this act included a power to legislate to hold a vote of this kind. It was not considering any wider ques- tions relating to holding a poten- tial independence referendum. In particular, the supreme court had to decide whether legislating for such a referen- dum would be within the legal competence of the Scottish par- liament, or whether this was a topic "reserved" for the UK par- liament in Westminster. The court was ruling on two main issues. First, whether the Scottish government had used the proper process when it re- ferred this legal question to the supreme court. The court de- cided that it had. It was "con- sistent with the rule of law" for the lord advocate to "be able to obtain an authoritative judicial decision on the point". The court then moved on to the second, more substantive question: whether the Scottish parliament has the legal power to enact legislation to hold a ref- erendum on independence. Beyond Holyrood's powers Crucially, the supreme court held that legislation providing for a referendum on Scottish independence would relate to two matters which are reserved to the UK parliament under the Scotland Act. These are "the Union of the Kingdoms of England and Scotland" and "the Parliament of the United Kingdom". Because the matter "relates to" these two issues, the Scottish parliament does not have the legal power (or "com- petence") to enact legislation on this topic. The court reasoned that these constraints in the Scotland Act mean that "measures which question the integrity of the United Kingdom" will be re- served to the UK institutions. Scotland's proposed legisla- tion authorising a referendum on independence (which could trigger the end of the union and terminate the UK parliament's sovereignty over Scotland) "has more than a loose or consequen- tial connection with the union" and with "the sovereignty of (the UK) Parliament". It would there- fore fall within powers legally re- served to the UK parliament, not the Scottish parliament. To reach this conclusion, the supreme court emphasised that it was required to consider a referendum's "effect in all the circumstances". This extended "beyond purely legal effects". The argument that a second referendum would only be advi- sory was not, therefore, persua- sive to the supreme court. Even if such a vote didn't produce a legally binding result, it would still amount to an "important political event" with "important political consequences". The outcome would still "pos- sess the authority, in a con- stitution and political culture founded on democracy, of a democratic expression of the view of the Scottish elector- ate". The result of a referen- dum of this kind would have "legitimacy" due to "its official and formal character". It would therefore be much more than a purely abstract or consultative exercise and could not be legally allowed on this basis. Unanimous result The judgment of the supreme court was unanimous, with five judges led by the president, Lord Reed, in agreement that a second independence referen- dum cannot be authorised by the Scottish parliament alone. The case has been decid- ed quickly, with the judgment handed down six weeks after the end of oral arguments. The supreme court justices con- firmed explicitly that they had "no doubt as to the answer" to these significant legal questions. Lord Carloway, the lord pres- ident of the court of session of Scotland, said in 2021 that it "may not be too difficult" for the courts to "arrive at a con- clusion" to these questions con- cerning the scope of the Scot- land Act 1998. And he appears to have been right. The UK Supreme Court's de- cision provides absolute legal clarity that a second independ- ence referendum cannot be held by the Scottish parliament act- ing alone. Just like in 2014, the agreement of the UK govern- ment and UK parliament would be required to hold a referen- dum. The decision, however, also exposes a clash between the UK's constitutional law and the democratic mandate obtained by the Scottish National Party to hold a further vote on Scot- tish independence. That clash is not of the supreme court's making, but is a central feature of the UK's statutory devolution arrangements. Now that that the legal options are clear, how that clash is managed will be a major challenge for the legiti- macy of the UK's constitutional order. maltatoday | SUNDAY • 27 NOVEMBER 2022 Michael Gordon is Professor of Constitutional Law, University of Liverpool Michael Gordon Nicola Sturgeon has vowed to fight the next election on a fully independence-focused platform