Why is the Supreme Court ruling on Scottish independence referendum 2023?

The Supreme Court will decide whether the Scottish Parliament has the power to hold a referendum on independence in October 2023.

It is a bold move and not without significant risks – so why has Nicola Sturgeon’s Government taken her London counterparts to court?

‘Above reproach’

When she announced the legal challenge her Government was making against Westminster in June this year, the First Minister said she wanted the question of whether the Scottish Parliament could legislate for an independence referendum to be taken out of the realms of political argument.

Obviously, that hasn’t quite happened as pundits, politicians and observers have all weighed in on the question in the days and months following.

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But Sturgeon’s initial statement to parliament fully set out her thinking behind the legal challenge.

The Scottish Government’s requests for a Section 30 order – the part of the Scotland Act which allows for a temporary transfer of powers so the Edinburgh administration can legislate in reserved matters, such as the constitution – have been declined repeatedly since the 2014 referendum.

The Scottish Government’s powers are limited by the Scotland Act. Things which are devolved, such as health and education, are solely handled by the powers in Holyrood; things which are reserved, the constitution, foreign affairs and the military, are handled by the powers in Westminster.

It is, for example, why nuclear weapons remain based in Scotland, despite the opposition of the government in Edinburgh.

Because the Scottish Parliament is still relatively young (it was founded just 23 years ago) there is still debate, confusion and uncertainty around the exact extent and limits of its powers. 

The Scottish Government will argue in court that holding a referendum on independence does not practically affect the constitution, though it relates to it, and therefore believes there is a case to be made that the Edinburgh parliament can hold a vote without Westminster’s permission.

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The UK Government believes the exact opposite and will argue that Holyrood cannot introduce a referendum on the constitution because it relates to the constitution – which is prohibited by law.

When Sturgeon announced the Supreme Court plan earlier this year, she said she wanted the question clarified “as a matter of fact and not just opinion” – a legal ruling will achieve this part of the plan.

Will the Supreme Court ruling deliver indyref2?

No one knows. Judges in the UK’s highest court will hear the arguments for and against and decide for themselves. This is the risk for the SNP but also a feature of the plan.

If the court rules in their favour, it fires the starting gun for an independence referendum, on October 19, 2023. The Scottish Parliament (with its majority of pro-Yes parties) will pass the Government’s referendum bill – which is really what the judges are examining in court – and the question will be the same posed to voters in 2014: “Should Scotland be an independent country?”

Interior of the Supreme Court (PA) (Image: PA)

Yes campaigns – both official and unofficial, party-affiliated and untied, will be launched and so will their Unionist equivalents.

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The country will – barring any major upsets – again go to the polls to decide Scotland’s future.

What if the Supreme Court blocks indyref2? 

If the court rejects the Scottish Government’s case and sides with the UK Government, things become more complicated.

Sturgeon has said in this instance, the law will then prove that the “notion of the UK as a voluntary union of nations is a fiction”.

She added: “Instead, we will be confronted with the reality that, no matter how Scotland votes, and regardless of what future we desire for our country, Westminster can block and overrule—Westminster will always have the final say. There would be few stronger or more powerful arguments for independence than that, and it would not be the end of the matter—far from it.”

She then teased a position which has been the subject of significant debate since. If the Scottish Government’s referendum bill is blocked, the SNP will then fight the next General Election on the “single question” of Scottish independence.

The SNP have been reluctant to discuss this policy in great detail has been confirmed that the Government will consider 51% and above of the popular vote going to pro-Yes parties such as the SNP, the Greens and Alba, to be enough to begin “the process of Scotland becoming an independent country”.

What this means in practice remains unclear. Will the Scottish Government then attempt to begin separation negotiations with Westminster? Will they reaffirm the case for a second referendum. The SNP have played their hands close to their chests, perhaps because they know it is a risky, all-or-nothing strategy.

The proxy referendum plan  

The de facto referendum route risks alienating voters who are lukewarm on independence but back the SNP because they prefer them to Labour and the Tories.

But it could see people flood in unprecedented numbers to the party because they want out of the Union and decide that quesion trumps all others come the next poll.

The SNP hope their rhetoric around the denial of democracy will become more potent if they have attempted to play by the book only to find their best efforts blocked by UK law. 

But they do hope that it brings Scotland out of its constitutional limbo and into a place of agency, after years of dismissals from the Tory government in London, despite the dominance of pro-independence parties north of the Border.