AN INVOLUNTARY UNION? SUPREME COURT REJECTS SCOTLAND'S CLAIM FOR UNILATERAL REFERENDUM ON INDEPENDENCE

IN November 2022, the UK Supreme Court concluded that the Scottish Parliament did not have the competence to enact legislation to hold a second referendum on Scottish independence (Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31, [2022] All E.R. (D) 64 (Nov)). That an independence referendum would relate to matters reserved to the UK Parliament, specifically the Union and the Westminster Parliament, is in many senses the least remarkable aspect of the judgment. It does, of course, have important political ramifications for Scotland and the independence movement. From a legal perspective, the case has consequences for UK constitutional law and the relationship between domestic and international law. The reference came to the Supreme Court in a novel manner. The Scotland Act 1998 provides a specific mechanism through which the government Law Officers, both those advising Scotland and the UK, may refer a question to the Supreme Court as to whether Acts of the Scottish Parliament are within competence. According to section 33, such references are made within four weeks of the passing of the Bill through the Scottish Parliament, prior to the Bill receiving royal assent. However, this option was not available as the draft Bill had not yet been laid before the Scottish Parliament. Section 31 of the Scotland Act requires that the person in charge of a Bill states that, in their view, the Bill is within the competence of the Scottish Parliament. The Scottish Ministerial Code requires that any statement must first be cleared by the Scottish Law Officers. However, the Lord Advocate had concluded that, in her opinion, the Bill was not within the competence of the Scottish Cambridge Law Journal, 82(1), March 2023, pp. 1–8 © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge doi:10.1017/S0008197323000090