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BLOG: ‘Self-determination applies only when a people is oppressed’ – Supreme Court tells Scotland

ABTL Blog Post – Written by Aditya. Aditya holds an MSc in International relations from the London School of Economics and has written articles for a number of other platforms.  

The Supreme Court judgement on the question of a Scottish referendum on independence came out on November 23, unequivocally stating that it is not within the powers of Holyrood to go ahead with the public vote without consent from Westminster. The ruling disappointed Nicola Sturgeon, the leader of the Scottish National Party (SNP), who said that the next UK general election will be a de facto referendum. From a legal point of view, there are some interesting points to note in regards to the Supreme Court’s decision.

The last referendum on Scottish independence, whose results favoured the union, took place in 2014 after Westminster made what is known as an Order in Council that essentially sanctioned the vote. Schedule 5 of the Scotland Act of 1998 (which created the devolved Scottish government), among other things, lays down “reserved matters” concerning the Union on which Holyrood cannot legislate. Under Section 30(2) of the Scotland Act, Westminster introduced paragraph 5A which said that a referendum is permissible if “specified requirements” were met. This is the legal foundation for the conduct of the referendum in 2014. But paragraph 5A is no longer in force and the British government is unwilling to make another Order in Council at present to permit another public vote on the independence question.

Therefore Lord Advocate Dorothy Bain KC, chief legal officer of the Scottish Government, asked the Supreme Court whether it is legal for Holyrood to go ahead with the referendum without Westminster’s blessing. She referred the case to the court based on paragraph 34 of the Scotland Act which allows direct reference to the Supreme Court of “devolution issues”. The court was tasked with ascertaining whether the question of the referendum was a devolution issue and if it was, whether it would be legal. It is important to remember that the legality depends on whether or not the question of referendum falls under the reserved matters list in Schedule 5 of the Scotland Act.

The court accepted that the Lord Advocate’s referral was correct as a referendum concerns a devolution issue. It was in regards to the second question, namely whether a referendum would fall under the reserved matters category, that the Lord Advocate advanced a strictly legalistic argument. She held that a referendum would have no immediate legal consequences. That is, even if a majority vote for independence, it wouldn’t result in actual political independence. The referendum is merely advisory and not self-executing. In that case, it does not affect the competence of Westminster to legislate on Scottish issues and does not affect the union either. Therefore, a non-self-executing advisory referendum, the Lord Advocate argued, lies outside the reserved matters list.

However, the court rejected the argument stating that “a lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences.” Whichever side gets a majority, “would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed…. It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.” Therefore, the court ruled that a referendum relates to reserved matters and that Holyrood is not within its powers to hold one.

The SNP intervened in the case and made some legal arguments of its own. It claimed a right to self-determination based on international law which is enshrined in Article 1 of the UN Charter. The SNP also referred to General Assembly Resolution 1514 which provides a ringing defence of self-determination for peoples.

In its response, the Supreme Court referred to its Canadian counterpart’s decision in the Quebec secession case which laid down that the right to self-determination is only applicable to “situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.” The court said that this ruling equally well in the case of Scotland and rejected the notion that the case of Scotland is comparable to any of these situations. The court used the same rationale to strike down Scotland’s reference to Kosovo and emphasised “the absence of recognition of any such right outside the contexts described by the Supreme Court of Canada, none of which applies to Scotland.”

To summarise, the court’s ruling rejected that even a non-self-executing referendum would not relate to reserved matters laid down in the Scotland Act of 1998 and dismissed the SNP’s claim to the right to self-determination by arguing that Scotland is not oppressed by foreign occupation.

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