Whether a certain Act of the Scottish Parliament relates to a reserved matter is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances, as it is stated in the Scotland Act. Among the reserved issues, in particular, is the question of the Union of the Kingdoms of Scotland and England.
According to the Act, the Scottish Parliament has the power to hold a legally-binding lawful independence referendum with the consent of the UK government. A case in point is, on 18 September 2014 the independence vote was taking place with the authorisation from Prime Minister David Cameron. The results of the referendum turned out to be only 45% in favour of Scotland becoming independent.
Since then, especially with leaving the EU despite the will of the majority of Scotland citizens, the popular opinion might have changed drastically. The UK government insisted on denying further requests for a similar vote, the former PM Boris Johnson even stated the referendums are not a unifying force for a nation and they “should be only once-in-a-generation.” As a reaction to several denials, the SNP, the Scottish governing party, stated with the Referendum Bill the intention to hold a non-binding consultative referendum on independence in 2023. In case the vote turned out to support the independence, the SNP intended to work towards the solution with the UK government. The Lord Advocate, chief legal officer of the Scottish government, however, had doubts on whether the Bill relates to the reserved matters and therefore would be unlawful. To resolve the issue legally, the Lord Advocate made a reference to the UK Supreme Court.
On 23 November 2022, the Court announced its unanimous judgment. It stated the purpose of the Bill was to hold an independence vote, which has more than loose and consequential effects on the Union of Scotland and England. Accordingly, the Bill touched upon matters, reserved to the UK government by the Scotland Act and therefore lies beyond the legislative power of the Parliament of Scotland.
How often independence referendums should be allowed to take place?
Saying "Scottish democracy will not be denied," Nicola Sturgeon, the First Minister of Scotland, claimed she will use the next general election that is planned for January 2025 the latest as a de-facto referendum.
At Democracy International we asked an independence expert, Professor Matt Qvortrup, author of the book "I want to break free", to give his opinion on the questions, most pressing for democracy. Namely, will there be a second referendum on the independence of Scotland and how often such referendums should be allowed to take place?
So, at the moment it is very doubtful that the second referendum will happen, said Professor Qvortrup, as the British government has said they will not allow a referendum and the UK Supreme Court also said the Scottish government does not have the legal power to hold such a referendum. While it is democratically unfair that a political party that was elected on a manifesto of promise to hold a referendum cannot do so, legally and politically it is very unlikely to be taking place.
The British government claimed the independence referendums should be held once in a generation. However, Matt Qvortrup said, when there is a material change, such as there was in Scotland since the vote in 2014 with the Brexit happening later, there should be a referendum. “Also, in Malta citizens voted in 1956 on the integration with the United Kingdom. Eight years later, in May 1964, with a 54.5% rate of approval they voted on constitutional change, becoming independent of the UK. In Scotland, it is exactly the same situation. One can have a referendum every ten years, in Quebec they had a referendum within 15 years. So, the argument that one cannot have a referendum because it has already been decided is not worthy of consideration.”
This is what democracy stands for: whenever there is an agenda that received a legally defined level of popular support, there should be a vote.