UK Government Submits Argument Over Scottish Independence Referendum to Supreme Court

A Scottish flag flies next to British Union Jack flag outside the Scottish Parliament in Edinburgh, Scotland, Britain, on April 24, 2019. Russell Cheyne/Reuters

The UK government on Tuesday submitted its argument to the Supreme Court in a bid to block the Scottish government’s attempt to hold another independence referendum next year.

The argument, submitted “in accordance with [the Supreme Court’s] timetable” by the UK government’s legal chief for Scotland, was in response to a case in which Scotland’s top lawyer asked the court to determine whether the Scottish Parliament has the legislative competence to legislate for an independence referendum.

The argument has not been published, but it is understood the UK government has asked for the court’s permission to publish the submission.

A spokeswoman for the UK government said “people across Scotland want both their governments to be working together on the issues that matter to them and their families, not talking about another independence referendum.”

She also said that “on the question of legislative competence, the UK government’s clear view remains that a bill legislating for a referendum on independence would be outside the legislative competence of the Scottish Parliament.”

Under the UK’s devolution rules set out in 1998, parliaments in Scotland, Wales, and Northern Ireland can only legislate for “devolved matters,” such as health care, education, or local government; while the legislative power on “reserved matters,” such as the constitution, national security, or immigration, remains with the UK Parliament in London.

Westminster in 2012 agreed to temporarily transfer the power, allowing Scotland to hold a referendum on independence in 2014. More than half of the voters (55.3 percent) chose to remain with the union, but Scotland’s ruling Scottish National Party (SNP), led by Nichola Sturgeon, has been pushing for a new vote, arguing the circumstances have changed since the UK voted to leave the European Union.

First Minister Nicola Sturgeon speaks at a press conference to launch a second independence paper at Bute House in Edinburgh, Scotland, on July 14, 2022. Andrew Milligan - Pool/Getty Images

In a draft Scottish Independence Referendum Bill published on June 28, the SNP government said it will hold a second referendum on Oct. 19, 2023. The bill was referred (pdf) to the Supreme Court by Scotland’s Lord Advocate Dorothy Bain QC, who asked the court to opine on “whether a bill providing for a referendum on Scottish independence would relate to a reserved matter.”

The Supreme Court has said it will hear arguments on Oct. 11 and Oct. 12 on both whether the court should accept Bain’s reference, and, if it does, how it should answer her questions.

If a referendum does take place, it will not be legally binding but will put enormous pressure on London to allow Scotland’s secession from the union.

Prime Minister Boris Johnson resisted Sturgeon’s demand to agree to a second referendum, arguing such a referendum, described by the SNP as “once in a generation,” shouldn’t happen only a few years after the last one.

Liz Truss, who’s vying to become Johnson’s successor, has also ruled out a second Scottish independence referendum, while her opponent Rishi Sunak said a second referendum is “the wrong priority at the worst possible moment.”

Labour deputy leader Angela Rayner also spoke against the idea on Monday, telling a crowd in Edinburgh that she wouldn’t go “anywhere near” another Scottish independence referendum.

The deputy opposition leader argued that a Labour government “could make all the difference” in terms of poverty in England and Scotland, and ruled out a coalition with the SNP, saying the party wants to “win a majority” in the next election.