Scottish government loses indyref2 court caseon November 23, 2022 at 10:29 am

The Scottish government cannot hold an independence referendum without the UK government’s consent, the Supreme Court has ruled.

First Minister Nicola Sturgeon wants to hold a referendum on 19 October next year.

But the court ruled unanimously that she does not have the power to do so.

The UK government has so far refused to grant the formal consent for a vote that was in place before the referendum in 2014.

Court president Lord Reed said the laws that created the devolved Scottish Parliament in 1999 meant it did not have the power to legislate on areas of the constitution including the union between Scotland and England.

And he rejected the Scottish government’s argument that any referendum would be “advisory” and would have no legal effect on the union, with people simply being asked to give their opinion on whether or not Scotland should become an independent country.

The judge said the Scottish government proposed referendum bill therefore relates to a matter that is reserved to the UK Parliament.

In the absence of an agreement between the two governments, the Scottish Parliament therefore does not have the power to legislate for a referendum, he said.

Lord Reed added: “A lawfully held referendum would have important political consequences relating 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.”

Ms Sturgeon tweeted that she was “disappointed” by the decision but respected the ruling of the court, and stressed that the judges do not make the law and only interpret it.

She added: “A law that doesn’t allow Scotland to choose our own future without Westminster consent exposes as myth any notion of the UK as a voluntary partnership & makes case for Indy”.

The case was referred to the Supreme Court by Lord Advocate Dorothy Bain KC, the Scottish government’s top law officer.

Ms Bain said at the time that she did not have the “necessary degree of confidence” that Holyrood would have the power to pass legislation for a referendum without UK government consent.

She said the issue was of “exceptional public importance” and asked the UK’s top court to provide a definitive ruling.

The court heard two days of legal arguments from both the UK and Scottish governments last month, with its ruling being delivered just six weeks later – earlier than many experts had expected.

Recent opinion polls have suggested that Scotland is essentially split down the middle on the independence question, but with a very narrow majority in favour of staying in the UK.

Ms Sturgeon has said she will use the next general election as a “de facto referendum” if the court ruling goes against her, with the SNP fighting the election on the single issue of independence.

Clarity was what Nicola Sturgeon asked for and clarity is what she now has from the UK Supreme Court.

The judges have made clear that the law does not allow Holyrood to legislate for an independence referendum without Westminster’s agreement.

That means there will not be an indyref2 on 19 October 2023, as the Scottish government had planned.

SNP ministers will accept the judgement and respect the law. A wildcat ballot in the Catalan-style is not an option.

A legal referendum can only happen if the first minister somehow persuades the prime minister to abandon his opposition.

There’s little prospect of that happening in the short term, so the renewed campaign for independence just became a longer haul.