In rapid Court verdict on legislative competence, the justices assert that even referendums that do not directly change the law have political legitimacy. Richard Parry discusses the political implications and the balance of victory and defeat for both sides
Once it became known on 16 November that the Supreme Court would take its minimum six weeks to give a ruling on the Lord Advocate’s referral, the suspicion was that the judgment would not be the definitive disposal of the issue of whether the Scottish Parliament could unilaterally legislate for a referendum on independence. The President, former Scottish judge Lord Reed, ascribed the speed of the 23 November judgment to the unanimity and prioritisation of the verdict but once again the Court surprised us with a boldness and clarity that knocked a lot of wind out of a lot of sails.
First, the Court fully satisfied the Lord Advocate’s request for a ruling on the state of the law without the proposed law being passed or even introduced. Two-thirds of the judgment
is taken up with justifying this, their position turning on the assertion that ‘the court can discount the risk that a further reference under section 33 is likely to be needed in order to deal with materially different aspects of legislative competence’ (para 53 (5)). So the justices sent a clear signal that there is no point in either side coming back to them later on the basis of a law that had been passed. The Lord Advocate, a government minister or the Presiding Officer will not need to advise the chamber on what the present law might be; the Court has told us.
Secondly, on the substantive issue the Court endorsed the UK government’s position that, in terms of section 29 of the Scotland Act 1998, the referendum is reserved as it ‘relates to’ both the Union and the UK Parliament, notably because ‘regard is to be had to the provision’s effect ‘in all the circumstances’: a phrase whose scope extends beyond purely legal effects’ (para 74). The Court presents its understanding of ‘relates to’ in the context of its previous judgments, but it does seem a less devolution-friendly approach to the scope of reservations.
The Court sets out its logic in terms which have implications for the wider place of referendums in the constitution: ‘the effect of the Bill, however, will not be confined to the holding of a referendum. Even if it is not self-executing, and can in that sense be described as advisory, 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 relates in an expression of the view of the electorate….statutory authority, and adherence to to the statutory procedure, confer legitimacy upon the result’ (para 78). This is useful to the UK government in its approach to the Brexit referendum, but might also be useful to the SNP were it ever to win a narrow majority in a future independence vote.
On the face of it this is a ‘defeat’ for the SNP. The judgment also unsurprisingly ruled against the SNP’s arguments that internationally-derived rights to self-determination were of relevance. But the party had anticipated a court defeat when the referral was announced by having to reveal that their law officers’ opinion about competence had long been discouraging. Their plan B of using the next UK general election as a de facto independence referendum makes little sense when the composition of the next British government will be at stake. Set alongside the SNP’s strategy to build solid consent for independence in the same way as happened with devolution, this whole legal project seems like a device to avoid the ultimate trap of a losing a referendum in October 2023.
The ‘victory’ for the unionist parties is also a compromised one. The lack of explicit reservation of referendums in the original legislation betrayed a caution about denying the expression of the political will of the Scottish electorate, but this no longer matters. The UK government now has the legal ability to stave off a poll for as long as it likes but it is one exercised on the defensive as long as the SNP maintains its Scottish political dominance.
The UK knows now knows that holds the legal cards, but politically it is the veto player with limited democratic grounding. It knows also that the SNP, by craving the gold standard of another Edinburgh agreement and declining to push forward its indeyref bill without legal sanction, has connived at an outcome that may be optimal for both.