The highest court in the United Kingdom is considering whether Holyrood may organize a Scottish independence referendum without Westminster’s consent.
The UK government opposes First Minister Nicola Sturgeon’s plan to hold such a vote on 19 October 2023.
Two days have been allotted for the hearing, with a decision expected within a few weeks or months.
Before a panel of five judges at the Supreme Court in London, the Scottish and British governments will argue their positions.
The law officers of the United Kingdom claim that the constitution is reserved for Westminster and is consequently beyond the jurisdiction of the Scottish Parliament.
The Scottish government’s position is that the referendum is “advisory” and has no legal impact on the Union.
The SNP’s written submission will also be reviewed. This document asserts that the right to self-determination must govern the interpretation of the 1998 Scotland Act.
Ms. Sturgeon reiterated her commitment to an independent Scotland during her speech at the SNP party conference on Monday, stating that it was “necessary to escape Westminster rule and mismanagement” and return to the EU.
She has consistently stated that she would prefer to continue with the consent of the UK government, as was the case before the 2014 referendum when a “section 30 order” was issued granting Holyrood the authority to hold such a vote.
However, Prime Minister Liz Truss and her recent Conservative predecessors have refused to grant such authorization, stating that the timing is not ripe for another independence referendum.
To break this impasse, Lord Advocate Dorothy Bain, the chief legal officer of the Scottish government, has petitioned the Supreme Court to rule on whether MSPs can independently organize a referendum.
Ms. Sturgeon has stated that she will respect the court’s decision, but if it goes against the Scottish government, she will contest the next general election entirely on this issue, thereby making it an independence vote.
Lord Keith Stewart KC, Advocate General for Scotland, will argue that an independence referendum relates to reserved matters on behalf of the British government.
In August, he requested that the Supreme Court “refuse to determine the reference” because it was beyond the court’s authority.
However, he also contended that Holyrood would be unable to convene a legal referendum even if the court determined it had jurisdiction.
“The Union of the Kingdoms of Scotland and England” is a reserved topic under the Scotland Act.
A spokesperson for the UK government stated, “The people of Scotland want their two administrations to collaborate on the issues that matter to them, rather than discussing another independence vote.
“On the issue of legislative competence, the UK government maintains its stance that a Scottish Parliament bill mandating an independence referendum would exceed its legislative authority.”
Lord Reed, Lord Lloyd-Jones, Lord Sales, Lord Stephens, and Lady Rose are identified as the five judges.
After Downing Street acknowledged a pro-referendum majority in the Scottish Parliament and was given legal approval for the vote, the independence referendum was held in 2014.
Scotland voted 55% to 45% in favor of continuing in the three-hundred-year-old union, but since then, the UK has left the European Union against the desires of the majority of Scottish voters, a “material change” that the Scottish government claims warrants a second independence referendum.
The present UK government firmly disagrees, responding to last year’s Holyrood election result, in which voters returned another pro-referendum majority, this time constituted of SNP and Green MSPs, by emphatically denying the proposition.
The subsequent political issue is now a legal dispute.
Nicola Sturgeon plans to take her case for Scotland’s exit from the United Kingdom directly to the Scottish people at the next general election if the Supreme Court also rules against her, although she has not specified how this would work in practice.
Her opponents argue that the de facto referendum plan is unlawful and would not give Scotland a mandate to negotiate its withdrawal from the United Kingdom.
Despite this, the issue of independence appears likely to dominate Scottish politics for years to come, regardless of the outcome of the judicial process.
