On 6 October 2021, the UK Supreme Court issued a little-noticed judgement that has big implications for whether the Scottish Parliament could legislate for a referendum on independence without the agreement of Westminster.
Although seemingly about unrelated matters – incorporating the UN Convention on the rights of the child and the European charter of local self-government into law - the judgement found that a number of the provisions the Scottish Parliament introduced went beyond its constitutional powers. The Supreme Court affirmed Westminster’s ultimate sovereignty over the devolved parliaments and dealt a major blow to the Scottish government’s hopes to legislate for its own independence referendum.
The relevant bills were passed unanimously by the Scottish Parliament in March 2021 and were designed to give effect to two treaties to which the UK is a signatory, but that were never fully incorporated into UK law. They were referred to the Supreme Court by the Attorney General and Advocate General, the senior legal advisors to the UK government.
The Supreme Court found that six sections and provisions of the Bills fell outside the competence of the Scottish Parliament and arguably strengthened constraints upon its authority.
The key section of the Scotland Act is s.28(7), governing Acts of the Scottish Parliament:
(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.
The Supreme Court found that five of the provisions in the new Bills would ‘modify’ this section of the Scotland Act, by placing qualifications or imposing pressures on the UK Parliament’s ability to legislate for Scotland.
The Bills will now be returned for reconsideration by Scottish Ministers.
This judgment was of particular interest to Scottish unionists as it may affect the Scottish Parliament’s ability to legislate for a future independence referendum.
The SNP government has a strong preference for an agreement with the UK government on a second referendum, as happened in 2014, but it has never conceded that it could not call a referendum without Westminster’s authorisation. If there is no agreement with Westminster on this, the SNP has stated that it will introduce its own referendum bill.
Former Scottish Conservative MSPs Adam Tomkins and Ruth Davidson were quick to point out that the Supreme Court’s approach in this judgement would stop any such bill. Tomkins claims that such a bill would “impede Parliament’s ability to make effective law for the UK. The Supreme Court is not going to let that happen.”
This may be true but there is also a finer point on how the judgment affects the possibility of a referendum. The Union is a reserved matter under the Scotland Act, but the effect of this has never been conclusively settled, and some academics and politicians have long argued that a consultative referendum may be legal. Key to this is the precedent from the case of Robinson v Secretary of State for Northern Ireland that devolution statutes, as constitutional measures, should be interpreted “generously and purposively” in light of the aims of the provisions, instead of a literal interpretation of the words on the page.
This suggests that if a referendum bill was brought by the SNP in Scotland, the Supreme Court could potentially interpret the Scotland Act in a “generous” way to allow it. The provision in the Scotland Act that reserves matters that ‘relate’ to the Union could be interpreted in a narrow fashion, allowing the Scottish Parliament to pass a referendum bill that merely asks the opinion of the Scottish people without itself affecting the status of the Union.
However, the recent Supreme Court judgment deals a final blow to this possibility. The judgment (following in the footsteps of the Continuity Bill ruling) states that the “Scotland Act must be interpreted in the same way as any other statute”, and the Robinson precedent on interpretation seems to have been thoroughly rejected.
It is therefore very difficult to see any possible pathway for SNP legislation on a second referendum to survive a Supreme Court challenge.
The principle of parliamentary sovereignty was rigorously defended in the Supreme Court judgment, yet the restrictions on the Scottish Parliament implied by it go even further.
The key section here is again s.28(7) of the Scotland Act. The Supreme Court has drawn a distinction between s.28(7), which states the ability of UK Parliament to legislate for Scotland in an unqualified and unconditional manner, and the idea of parliamentary sovereignty – despite the main assumption previously being that s.28(7) was just a restatement of the principle of parliamentary sovereignty.
By severing the two notions, s.28(7) appears to provide a much stronger limit on the Scottish Parliament (and the equivalent section for the Welsh Parliament). The devolved legislatures cannot do anything that affects this unqualified power, and the Supreme Court may interpret this broadly, even without having to take a more expansive approach to parliamentary sovereignty.
Indeed, the Supreme Court does interpret it very broadly in this recent judgment. It states that Scottish courts making declarations of incompatibility affect the ability of the UK Parliament to legislate for Scotland because of the pressure it would impose and the threat of “judicial condemnation”. It is difficult to see how this qualifies the Westminster Parliament’s ability to legislate and seeing as the Scottish Parliament can already repeal acts of the Westminster Parliament that fall within its areas of competence, it seems like the kind of pressure that legislative devolution was bound to bring.
The proposed declarations of incompatibility were based upon the Human Rights Act 1998 (HRA). Interestingly, the Supreme Court frames the HRA provisions as a qualification on Parliament’s sovereignty – which is acceptable because, “Parliament can itself qualify its own sovereignty” (para.50). It is unusual to see this point stated in such stark terms, with most constitutional opinion tending to assume that parliamentary sovereignty remains intact since the courts’ declarations are not binding.
This idea may now be appropriated by the new Secretary of State for Justice, Dominic Raab, who has stated his intent to repeal the HRA.
Finally, the judgment gives a rare insight into judicial thinking about the devolution settlement. It appears that the Supreme Court is walking back from some of the thinking and constitutional language previously employed in relation to the devolution acts.
Professor Mark Elliott reflected that: “the constitutional role of the Scotland Act is played down”, and the Scotland Act is not referred to as a ‘constitutional statute’. While the ‘constitutional settlement’ is still mentioned, the devolution statutes are purposefully not elevated.
This may be a sign of the Supreme Court’s unwillingness to become too involved in contentious political questions and signals its reticence to be treated like a federal court that mediates the constitutional relationship between Westminster and Scotland.
About the author
Kelly Shuttleworth, Research Assistant
Kelly Shuttleworth is a Research Assistant working on a research project led by Professor Michael Kenny, exploring the British state’s approach to devolution across the UK since 1999, and contemporary pressures upon the domestic union in the wake of Brexit and Covid-19. Learn more