Tomorrow the UK Supreme Court will announce whether Scotland should hold an independence referendum next year.
In their manifestos for the 2021 Holyrood election, both the SNP and the Scottish Green Party said their MSPs would push for such a vote. Between them, the two parties won 72 of 129 seats, a clear majority. They agreed to govern together and proposed holding the referendum on October 19, 2023.
Let’s dismiss, for a moment, the debate over whether or not a referendum should be held – opponents of independence complain that a referendum was held just eight years ago, supporters point to changes in Britain during this period, notably Brexit. And forget, for a moment, the big question, the one that such a referendum would pose.
Focus instead on the legal question: is the Scottish government allowed to organize this vote?
On the one hand, constitutional questions are reserved for Westminster. Sovereignty in Britain does not come from the people, it cascades down from the King to Parliament. Westminster decides who decides what, and Westminster has always been pretty clear that matters relating to the breakup of Britain are firmly within its purview.
On the other hand, according to lawyers for the Scottish government, referendums in Britain have always been consultative. A Yes vote for Scottish independence would not automatically seal a piece of legislation that was or was not constitutionally viable, it would simply indicate the will of the Scottish people. The ramifications of that decision – that it would make it very difficult for Westminster to refuse independence – are matters of politics, not law.
In fact, Westminster has a history of refusing to respect the results of such votes. In 1933, 66% of West Australians voted for independence from the rest of Australia – the government in Canberra and “the Imperial Parliament”, as Westminster was called, both refused it. This did not mean that the state broke the law by organizing the vote.
Rather than hold a referendum which trade unionists say is illegitimate and a boycott, or which is banned by the courts midway through the campaign, Scottish First Minister Nicola Sturgeon presented a referendum bill to the most senior official country’s legal, Lord Advocate Dorothy Bain, and asked her to go to the Supreme Court for an opinion on whether to allow it.
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