Misrepresenting the Supreme Courts Ruling
Unionist politicians misrepresent the UK Supreme Court’s ruling on the Scottish Parliaments competence to legislate for a second independence referendum by implying that it justifies the UK governments withholding of consent to a referendum.
Despite having attained successive pro-independence electoral majorities in Scotland, the SNP’s attempts to hold a second referendum have been significantly inhibited by the UK’s constitutional framework which places the power of referendum authorisation in the hands of the UK government. Requests for authorisation have been continually rejected by the sitting Prime Minister, leading to their apparent contempt for Scottish democracy being challenged in the media and in Westminster. When the UK governments democratically deficient denial of Scotland’s electoral will is highlighted however, unionist politicians commonly revert to a scripted diversion, stating that they ‘respect the ruling of the Supreme Court’ on the matter and ‘look forward to moving on’. This article will demonstrate that the implication made within this answer, that the referenced Supreme Court ruling justifies the UK government withholding of consent, is misleading.
In the Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31, the UK Supreme Court (UKSC) ruled on one overarching issue: whether the Scottish Parliament could legislate to hold a second referendum on Scottish independence without the consent of the UK government. The court assessed the relevant aspects of the Scottish Parliaments ‘legislative competence’ by interpreting key provisions within the Scotland Act 1998 which regulate the powers of the Scottish Parliament. It was held (unanimously) that the proposed Scottish Independence Referendum Bill “related” to “reserved matters” in a way which breached the scope of the Scottish Parliaments legislative competence under section 29(2)(b) of the Scotland Act. The judgement is defined by the core principle that the Scottish Parliament cannot lawfully legislate to hold a second referendum on Scottish independence without having attained the consent of the UK government.
The implications of this decision on the supposedly ‘voluntary’ ‘union of equals’ in light of the UK government’s refusal to respect Scottish democracy could be discussed extensively, but that is not the purpose of this article. The purpose of this article is to highlight the subsequent disingenuous misrepresentation of the Supreme Court’s judgement by UK government ministers and various other unionist politicians.
On several occasions, ministers of the UK government have responded to criticism of their refusal to authorise a second referendum by stating that they ‘respect the ruling of the Supreme Court’ (or something to that effect). When the surface of this rebuttal is scratched, it holds no substance and demonstrates that its proponents are ignorant (wilfully or not) to the actual content of the relevant case judgement.
The Supreme Court’s judgement does not address whether the UK government should authorise a referendum in any objective or subjective sense. Indeed, there is no consideration of the political or democratic merits of the requests for authorisation, with the case instead dealing solely with the question of whether such authorisation must be attained for a referendum to be lawful under existing constitutional legislation. The ruling therefore does not offer any support or justification for the UK governments political decision to withhold consent, and it is completely disingenuous to imply otherwise. This understanding of the court’s ruling should be naturally anticipated; in accordance with their role within the separation of powers, courts make findings of law based on existing legislation and common law principles. The Supreme Court’s bench cannot confer legal authority to political arguments with which they merely agree because to do so would impede their impartiality and constitutional role.
From the fictional construction of the UKSC’s decision purported by unionists, it is clear that the UK government ‘respect the Supreme Court’s ruling’ only insofar as it (by a finding in law) enables them to supress Scotland’s democratic expressions. They disrespect that same ruling insofar as they misrepresent it to provide a non-existent source of political justification rather than strictly legal justification for their action. The decision facilitates the refusal of authorisation, but it does not in any sense justify such refusal in a political, democratic, or moral sense.
In actuality, the UK governments absolute rejection of a democratic expression by the Scottish electorate is fundamentally incompatible with the UK’s system of constitutional law which is underpinned by democratic principles. This constitutional foundation has been covered in several of our articles and so for brevity, it is only referenced superficially here. Again, this article is not intended to dispute the merits of the court’s judgement itself but instead to challenge the UK governments misrepresentation of it. Notwithstanding this caveat, it is relevant to note that the underlying principles of UK constitutional law are disregarded by the UK government when they rely on the judgement to depose Scottish votes of democratic legitimacy.
The constitutional significance of the Supreme Court’s ruling cannot be overstated. It highlights the dysfunctional nature of a supposedly ‘voluntary’ ‘union of equals’ where one ‘equal’ nation is not permitted to leave by another. The ruling does not in any way justify the UK governments withholding of consent to a referendum when several pro-independence electoral majorities have been achieved in Scotland. When Scottish MPs ask why Westminster insists on denying democracy in Scotland, it is simply unacceptable for the respondent to reiterate that they ‘welcome’ or ‘respect’ the Supreme Court’s ruling on the matter and ‘look forward to moving on’. If the UK government insist on circumventing constitutional democracy so publicly, then they ought to come up with a better excuse.