The Memo: Scotland sees Supreme Court setback in latest move for independence

Cait Evans - 12th December 2022

In November, the SNP’s campaign for independence was dealt a fresh blow when the Supreme Court ruled that the UK Government must grant permission before another independence referendum can be held in Scotland.

The case revolved around whether a key bill drafted by the Scottish Parliament – one that would enable a second referendum - was within its legislative powers. Scotland’s devolved powers are limited to The Scotland Act 1998, and cover a wide range of domestic issues. But there are exceptions. ‘Reserved matters’ are those that the UK Parliament holds exclusive power over, and crucially, this includes most decisions that would have wider consequences for the structure of the union. Following a unanimous decision, the Court held that the legislative power to hold a second referendum constitutes a reserved matter. Essentially, a Scottish referendum can only be legally granted the same way it was in 2014, when the Edinburgh Agreement signed by the UK Government granted the Scottish Parliament the temporary authority to hold one.

Yet the story is far from over. Some of the latest polls claim that as many as 56% of Scots are now in favour of independence. With the legal avenues narrowing, Nicola Sturgeon’s alternative means include invoking a ‘de facto’ referendum, whereby independence is effectively voted on in the next general election. In this instance, a vote for the SNP would essentially a vote to force the UK government’s hand to open negotiations.

The judgment is also another piece in the wider jigsaw of constitutional law in the UK. These sorts of high profile, public law references have become increasingly common in the last decade (think of the furore over the Miller (No1) & (No2) Brexit cases). Judges are having to carefully navigate unchartered waters, all while upholding established constitutional principles. These cases are fast becoming the bread and butter for public law students, as the boundaries of constitutional powers within the UK continue to be challenged by growing political divides.