A New Roadblock for Scottish Independence

The decades-long campaign for Scotland’s independence from the United Kingdom (UK) suffered a setback last month when the UK Supreme Court ruled that no new referendum can be held without London’s approval. Can the Scottish Parliament, controlled by the pro-independence Scottish National Party (SNP) and led by First Minister Nicola Sturgeon, keep the flame alive?

What’s the history of the Scottish independence movement?

The Kingdom of Scotland has been part of the UK (which also includes Wales and Northern Ireland) since it merged with the Kingdom of England under the 1706 Treaty of Union. A movement for Scottish independence emerged in the 1970s, partly driven by the development of North Sea oil fields, which produced enough revenue to sustain a robust, independent economy. In an effort to blunt this pro-independence sentiment, the UK Parliament devolved many governing powers under the Scotland Act of 1998 to a newly created Scottish Parliament in Edinburgh.

The SNP, which has held the majority in the Scottish Parliament since 2007, has sought to use democratic means to achieve what it views as the Scottish peoples’ right to self-determination. A 2014 independence referendum went ahead with the approval of the UK Parliament, which amended the Scotland Act to authorize it. That referendum failed, with 45 percent in favor and 55 percent against. However, the UK’s Brexit strategy has raised pressure [PDF] to try again, as Scottish sentiment to remain in the European Union remains the majority view.

As a result, Lord Advocate Dorothy Bain, the senior law officer of the Scottish government, sought guidance from the UK Supreme Court on whether such a referendum could be held without amending the Scotland Act to permit it. Such an approval would be highly unlikely given the current makeup of the UK Parliament. Meanwhile, recent polling on the issue has shown a fairly consistent fifty-fifty split among Scottish voters.

What did the UK Supreme Court decide?

In November 2022, the court, sitting in London, ruled that the Scottish Parliament does not have the legislative competence absent an amendment to the Scotland Act to authorize a referendum asking Scottish voters: “Should Scotland be an independent country?” This is because, the court found, such a matter relates to “the Union of the Kingdoms of Scotland and England” and to the authority of the UK Parliament. 

Though such a referendum would be advisory (meaning lacking immediate legal effect without additional legislation), the court expressed a strong view of the potential impact: “The clear expression of its wish either to remain with the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement. It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.”

UK Prime Minister Rishi Sunak welcomed the “clear and definitive ruling,” and Downing Street confirmed that Sunak will seek to avoid another referendum. Thus, there appears to be no prospect of fresh legislation in the near future.

What does the court’s decision mean for the principle of self-determination?

The SNP was granted an unusual dispensation to intervene in the case and offer its arguments for an interpretation of British law that it saw as compatible with the long-standing principle in international law of self-determination. Since an advisory referendum would be non-self-executing (meaning it would require separate legislation to implement) and, in the SNP’s view, would be so broad as to not relate to the issues reserved to London under the Scotland Act, it warranted an approach allowing for the expression of self-determination.

Rejecting the SNP’s claim, the court concluded that the referendum bid impinges on reserved issues under the Scotland Act. It explained that the law “allocates powers between the United Kingdom and Scotland as part of a constitutional settlement. It establishes a carefully calibrated scheme of devolution of powers” that does not infringe any principle of self-determination.  In other words, devolution itself was a major concession to self-determination and should suffice to meet the democratic aspirations of the Scottish people.

The court also relied upon a 1998 Canadian Supreme Court decision about Quebec’s secessionist efforts to clarify the threshold for self-determination. It concluded that Scotland is not a former colony, its people are not oppressed, and no “definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.” In the court’s view, at least one of these conditions blocking “internal” self-determination must manifest before invoking a right to “external” self-determination—that is, unilaterally breaking free of the United Kingdom.

As columnist Joyce McMillan of the Scotsman wrote, “[T]he Supreme Court has effectively ruled that because Scotland is not a colony, it is therefore acceptable for Westminster governments to continue to treat it as a colony, in some vital respects; and to impose on it damaging policies which it has never supported at the ballot box.” 

It is also possible that the Supreme Court’s views on self-determination could inform judges elsewhere in Europe when tasked with issuing decisions on separatist movements in countries such as Spain or Bosnia and Herzegovina. However, it is less likely to dampen populist aspirations.

What are the options for Sturgeon and the SNP?

Sturgeon reacted to the court’s decision by accusing the UK government of “democracy denial” and promising that UK general elections slated for 2024 will constitute a “de facto plebiscite” on the issue. The SNP intends to hold a special conference in 2023 that will presumably focus on capturing a convincing majority of Scottish votes in the general election and then using that mandate to compel the UK Parliament to act on Scottish independence.

Sturgeon, who has always stressed a rule-of-law approach to independence, struck a note of defiance: “The Westminster establishment may think it can block a referendum, but let me be clear, I am sure on your behalf today, no establishment, Westminster or otherwise, will ever silence the voice of the Scottish people.” That language signals a looming constitutional crisis if Edinburgh presses ahead against London’s firm opposition.

The UK Supreme Court has temporarily barred the path to Scottish independence, but the justices probably strengthened the determination of the SNP and the Scottish Parliament. The question now is whether Sturgeon and her party can build a strong pro-independence majority to serve what they hope will be a knockout blow in 2024. 

Madeline Babin, research associate at the Council on Foreign Relations, assisted with the research for this article.

This article was made possible by the Diamonstein-Spielvogel Project on the Future of Democracy.