Ruling towards Scottish independence vote throws ball again in political enviornment

The author, a lawyer and commentator, is an FT contributing editor

From a authorized perspective, the Scottish authorities must be disenchanted with Wednesday’s Supreme Courtroom judgment that an independence referendum can’t be held with out the consent of Westminster and Whitehall.

Nicola Sturgeon’s authorities desires to carry a plebiscite on the union of Scotland and England with out permission from London. The court docket dominated that there was a critical case to be heard and the UK authorities’s two makes an attempt to knock out the declare on technicalities failed. And, as with every controversial case, it might have gone both means.

Beneath the Scotland Act, the Scottish parliament can’t legislate on a matter the place it “pertains to reserved issues”, which embrace the union. The Scottish authorities contended {that a} referendum, which in and of itself wouldn’t be binding, didn’t “relate to” the union or to the sovereignty of parliament. It conceded that really legislating for independence would relate to it, however not a mere referendum.

The Supreme Courtroom might have taken a narrower view of what’s meant by the phrase “pertains to”. But it surely unanimously rejected the Sturgeon authorities’s submission, holding {that a} referendum “isn’t merely an train in public session or a survey of public opinion”. As a substitute, it was “a democratic course of held in accordance with the legislation which leads to an expression of the view of the voters on a selected subject of public coverage on a specific event”.

The proposed independence referendum could be advisory. It might not be self-executing, for it could not have fast impact with out additional laws. Nonetheless, the court docket judged that holding such a vote would nonetheless be a reserved matter as a result of it could “relate to” the union of Scotland and England or to the sovereignty of parliament.

Because the court docket additionally put it, “[a] lawful referendum on the query envisaged by the Invoice would undoubtedly be an necessary political occasion, even when its end result had no fast authorized penalties”. Some might imagine that it’s no enterprise of a court docket to take account of such political, non-legal elements, however the Supreme Courtroom appropriately mentioned that the Scotland Act required it to method the query “in all of the circumstances” — even when these weren’t simply the authorized ones.

The Scottish authorities might be happy with the way it managed to get the matter earlier than the Supreme Courtroom. The framing of the case was ingenious — and that the court docket determined the case on its deserves exhibits that it was not frivolous or contrived. The Scottish authorities’s Lord Advocate, Dorothy Bain KC, was spectacular in her arguments. The case couldn’t have been put higher.

This was a uncommon case the place the Supreme Courtroom was not sitting as an enchantment court docket. On sure devolution questions, it’s a court docket of first occasion.

However additionally it is right here a court docket of final occasion. There is no such thing as a enchantment from the Supreme Courtroom. The authorized path to an independence referendum with out the consent of Westminster or Whitehall now involves an finish. The difficulty returns from the realm of legislation to the realm of politics.

And so it’s from a political perspective that the Scottish authorities might be heartened. Wednesday’s judgment exhibits the constraints of the devolution settlement. This can bolster supporters of independence, who will keep that the choice exhibits Scotland is locked right into a supposedly “voluntary” union with no unilateral means out.

Professional-independence supporters may even contend the judgment exhibits that underneath the legislation of the UK, the Scottish parliament appears to be little greater than a statutory physique, topic to a strict rule of extremely vires.

Supporters of Scottish independence could also be disenchanted by the authorized choice, however they won’t be disenchanted by the political sign that this judgment sends.