UK Supreme Court Rules Scotland Cannot Hold 2nd Independence Referendum

The Scottish Saltire (L) and the Union Flag flutter above Stirling Castle in the historic town of Stirling, central Scotland, on Aug. 7, 2019. Andy Buchanan/AFP via Getty Images

The UK Supreme Court has ruled that the Scottish Parliament cannot legislate for a second independence referendum without consent from the UK government.

In the first independence referendum held in 2014, the Scottish electorate voted 55–45 percent to reject independence and remain part of the UK.

But First Minister Nicola Sturgeon, who is also leader of the pro-independence Scottish National Party (SNP), announced in June that she is planning to hold another independence referendum on Oct. 19, 2023.

After the then-Prime Minister Boris Johnson said the UK government will not grant the Section 30 Order, which is required to hold a second vote, the Scottish government asked the UK Supreme Court to rule on the potential legal issues around holding a vote without UK government approval.

On Nov. 23, the Supreme Court unanimously ruled that the Scottish Parliament does not have the power to legislate for a fresh independence vote.

A Scottish independence supporter outside the UK Supreme Court in London, following the decision by Supreme Court judges that the Scottish Parliament does not have the power to hold a second independence referendum, on Nov. 23, 2022. Aaron Chown/PA Media

‘Important Political Consequences’

Announcing the decision, the court’s president Lord Reed said that legislation for a second independence referendum would relate to “reserved matters” and was therefore outside the powers of the Scottish Parliament.

He said: “A lawfully-held referendum would have important political consequences [in] relation to the Union and the United Kingdom Parliament.

“Its outcome would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.

“It would either strengthen or weaken the democratic legitimacy of the Union and of the United Kingdom Parliament’s sovereignty over Scotland, depending on which view prevailed, and would either support or undermine the democratic credentials of the independence movement.

“It is therefore clear that the proposed bill has more than a loose or consequential connection with the reserved matters of the Union of Scotland and England, and the sovereignty of the United Kingdom Parliament.”

‘Self-Determination’

Lord Reed said the panel of five Supreme Court justices did not accept arguments made on behalf of the SNP, which intervened in the case, based on the “right to self-determination” in international law.

The SNP had argued the limitations on the powers of the Scottish Parliament in the Scotland Act should be “restrictively interpreted in a way which is compatible with that right under international law” and cited rulings in the Canadian Supreme Court and the International Court of Justice.

Lord Reed said the court in the Canadian case, which concerned Quebec, held that the right to self-determination under international law only exists in situations “of former colonies, or where a people is oppressed … or where a definable group is denied meaningful access to government.”

He said: “The court found that Quebec did not meet the threshold of a colonial people or an oppressed people, nor could it be suggested that Quebecers were denied meaningful access to government to pursue their political, economic, cultural, and social development.

“The same is true of Scotland and the people of Scotland.”

‘Clear and Unequivocal’

The UK government’s Scottish Secretary Alister Jack said UK ministers “note and respect” the Supreme Court’s unanimous ruling.

The Conservative MP said: “People in Scotland want both their governments to be concentrating all attention and resources on the issues that matter most to them,” adding that the UK government is focusing on issues such as restoring economic stability, helping people with their energy bills, and supporting the National Health Service.

“As the prime minister has made clear, we will continue to work constructively with the Scottish government in tackling all the challenges we share and face,” he said.

Scottish Tory leader Douglas Ross said the Supreme Court had delivered a “clear and unequivocal verdict,” and the SNP government must respect it.

“The Scottish people have made it clear in poll after poll that they don’t want another referendum next year,” he said, adding: “Holding another divisive referendum next year is the wrong priority at the worst possible time for Scotland.”

Scottish Labour leader Anas Sarwar said that “there is not a majority in Scotland for a referendum or independence” and that Scotland “must now focus on the problems” with rising bills and the NHS.

SNP leader and First Minister of Scotland Nicola Sturgeon issues a statement in response to the UK Supreme Court decision, at the Apex Grassmarket Hotel in Edinburgh, on Nov. 23, 2022. Jane Barlow/PA Media

‘Outright Democracy Denial’

Reacting to the court’s decision, Sturgeon, Scotland’s pro-independence first minister, called it a “tough pill for any independence supporter to swallow.”

She said the opportunity “remains open for the UK government, however belatedly, to accept a democracy and reach an agreement” on a new referendum.

But she said she expects the UK government to maintain its position of “outright democracy denial,” a position which she called “unsustainable.”

Sturgeon said she wants to make the next UK general election a “de facto referendum” on independence.

She said the SNP will hold a “special party conference” in the new year to discuss the detail of the proposed “de facto referendum.”

PA Media contributed to this report.