Can The Scots Secede? Lessons Learned From Canada

• Published date: 02 December 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor, Byron Shaw and Adam Dobkin

On November 23, 2022, the United Kingdom Supreme Court ruled that Scotland's Parliament may not hold a second independence referendum at this time. The last independence referendum was held in 2014, with the legal approval of the UK. Scotland narrowly voted to remain within the UK (55%).

Background

Scotland's constitutional relationship to the United Kingdom is governed by the Scotland Act 1998, c. 46 (UK). This UK Act establishes the Parliament for Scotland as a devolved legislature within the British legal system. The Act lays out the legislative competencies of the Scottish Parliament, reserving certain matters to the UK, including constitutional matters and the integrity of the Union itself.

During the first referendum, adjudication of whether Scotland needed UK approval to legislate an "advisory" (i.e. nonbinding) independence referendum was avoided, because the UK government ultimately issued an Order in Council temporarily transferring putatively reserved legislative powers to Scotland to carry out the referendum. However, this issue came to a head when the UK refused to cooperate with a second referendum. Then-Prime Minister Boris Johnson stressed the need for finality in a letter to First Minister Nicola Sturgeon:

'You and your predecessor made a personal promise that the 2014 Independence Referendum was a "once in a generation" vote. The people of Scotland voted decisively on that promise to keep our United Kingdom together, a result which both the Scottish and UK Governments committed to respect in the Edinburgh Agreement. The UK Government will continue to uphold the democratic decision of the Scottish people and the promise that you made to them.'

The Reference: Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998, [2022] UKSC 31

The Lord Advocate (the senior law office of the Scottish Government) put the following reference question to the UK Supreme Court: Does the Scottish Parliament have power to legislate for the holding of a referendum on Scottish independence?

The UK Supreme Court approached the issue by addressing three questions:

1. Does the Court have jurisdiction to consider the reference?
2. If so, should the Court accept the reference?
3. If so, then does the Scottish Parliament have power to legislate for the holding of a referendum on Scottish independence?

The UK's law office in Scotland, the Advocate General, submitted the answer to all three questions was "no".

On questions 1 and 2, Court held at paras 13-54 that it could and should hear the reference. Canadians may make fruitful comparison to similar jurisdictional and prematurity arguments raised by the amicus curiae in the Reference re Secession of Quebec, [1998] 2 SCR 217.

Question 3: Scottish Parliament cannot pass the referendum legislation

The critical question was whether the proposed referendum Bill would "relate to the Union of the Kingdoms of Scotland and England or the Parliament of the United Kingdom," as such...