United Kingdom disunited

Margaret TaylorMonday 6 February 2023

Protesters gather outside Perth Concert Hall ahead of the Conservative leadership election, Perth, Scotland. 16 August 2022. Kay Roxby/Alamy Live News

Relations between Scotland’s Holyrood parliament and the Westminster government in London are increasingly strained. Global Insight assesses whether the law can find a resolution and clarify the Constitution.

The UK government has got itself into a quandary over the Constitution. Westminster overruling Holyrood legislation on transgender rights is just the latest example. Two Supreme Court cases are already highlighting the difficulties.

In the first — the Scottish Lord Advocate’s Indyref2 case — the Court was asked to rule on whether the Scottish government has the right to take action that could break up the union, something the Westminster legislature firmly opposes. In the second — an appeal against two earlier decisions to refuse a judicial review into the lawfulness and constitutionality of the Northern Ireland Protocol — it must consider whether an Act the appellants claim will destroy the union was properly passed. To all intents and purposes the cases appear to put the UK government at odds with itself, something the Court must make sense of from a purely legal, not political, point of view.

The Scottish case

Though the Scottish constitutional question was apparently settled for a generation with the outcome of the 2014 independence referendum, it is no secret that the Scottish government wants to press ahead with a second vote. The ruling Scottish National Party’s (SNP) position is that Brexit has so fundamentally changed the UK (which Scottish people voted in 2014 to remain in) that asking the question twice in a generation is entirely justifiable. Last summer Scottish First Minister Nicola Sturgeon vowed that if the UK government would not grant her permission to hold a further vote — something that is required in all matters relating to the UK Constitution — she would simply legislate to hold a vote without its say-so. Lord Advocate Dorothy Bain KC, who is both Scotland’s lead prosecutor and the chief legal adviser to the Scottish government, said she could not be sure such legislation would be lawful and asked the Supreme Court to rule on the matter.

The UK government’s First Treasury Counsel – also known as the ‘Treasury Devil’ – Sir James Eadie KC, tried to have the matter dismissed, arguing that as Bain was asking the Court to provide clarity on a referendum bill that has not yet been drafted, never mind introduced, the terms of the Scotland Act mean it has no jurisdiction. The Court’s five-strong panel — which, showing the importance of the case to the UK as a whole, featured judges from all four jurisdictions — rejected that argument, but in the end favoured Eadie’s wider submissions over Bain’s. The Lord Advocate had argued that the Scottish government should prevail because it only wants to hold an advisory vote, but the Court said that, regardless, such a vote would impact on the sovereignty of the UK Parliament and so only the UK government has the authority to legislate for it.

In one sense the Court delivered exactly what Bain was looking for: clarity. In her opening remarks she noted that the question of which government has the right to legislate for referendums has remained unanswered since the devolution settlement of 1998. Former Lord Advocate Lord Mackay of Drumadoon had predicted it would become ‘a festering issue’, she said, and had been proved right.

In resolving that issue, finding that legislating for referendums with constitutional impact is entirely for Westminster, the Court delivered a huge legal blow to the Scottish government. Yet at the same it created a huge political opportunity. As Sturgeon put it at the time: ‘A law that doesn’t allow Scotland to choose our own future without Westminster consent exposes as myth any notion of the UK as a voluntary partnership and makes the case for Independence.’ Far from weakening the SNP’s resolve, the judgment has strengthened it.

Scotland, then Ireland...?

As the Supreme Court was winding down to the end of the Michaelmas term, a near-identical panel to the one that oversaw the Scottish case gathered to hear the Northern Irish one. Supreme Court President Lord Reed, a Scots lawyer, sat at the centre of the bench alongside Lords Lloyd-Jones, Sales and Stephens, whose respective backgrounds are in the Welsh, English and Northern Irish court systems. The difference this time round was that Lady Rose, a former member of the Court of Appeal of England and Wales, was replaced by Deputy President Lord Hodge, also a Scots lawyer. What also differed is that, while the UK government staunchly defended the union in the Scottish case, in this matter the case centred on the accusation that it was trying to destroy it.

The case brings together two appeals, one from staunch unionist Clifford Peebles and another from a group including Traditional Unionist Voice leader James Allister, former Democratic Unionist Party leader Arlene Foster and former Labour Party MP Kate Hoey, a high-profile Brexiteer. The basis of their appeal is that the Northern Ireland Protocol, a trading agreement signed by the UK and the European Union as part of Brexit, effectively creates a customs and regulatory border between Northern Ireland and Great Britain in certain areas of trade, while positioning Northern Ireland primarily in the EU internal market. This, the appellants have argued, changes the nature of the union to such a degree that the Protocol is incompatible with the Acts of Union 1800 and the Northern Ireland Act 1998, which devolved power to Northern Ireland and created the Northern Ireland Assembly. It is their belief that UK ministers therefore erred in passing it.

Both the court of first instance and the appellate court ruled against the claimants, finding that the Protocol is consistent with the principles of the rule of law and democracy. It is now for the Supreme Court to determine whether those findings were correct.

With the Scottish government planning to hold its referendum in October this year, the Court delivered its judgment in the Lord Advocate’s case in super-fast time — just six weeks between hearing and ruling. No date has yet been set for when the Northern Irish case will be decided. But, with the UK government seeking to amend the Protocol while also being embroiled in legal action from the EU over how it has so far been used, gaining clarity on the law itself is just as urgent.

Where sovereignty lies

Unlike in the US, where the Supreme Court has the power to overrule legislators, the UK Supreme Court is not, in fact, supreme. Indeed, as parliamentary sovereignty is central to the UK Constitution, the title is actually something of a misnomer. The UK Parliament rules supreme and, while the Supreme Court’s rulings are important when it comes to defining and interpreting the law, the court has no power to strike down parliamentary legislation, even in the case of judicial review. For some working in the political sphere that means, just like the Scottish government suggested its planned referendum would be, its decisions are all but advisory.

Technically, when it comes to the Lord Advocate’s case, the Court’s judgment should present no difficulty for the UK government. The justices did, after all, agree with its position that the Scottish government has no authority to hold a referendum without Westminster’s say-so.

The SNP’s reaction to the ruling notwithstanding, the UK government will be hoping for a similar win when the justices deliver their ruling in the Protocol case. There is, of course, no guarantee that the Supreme Court justices will agree with the Irish judges, but if they do it will lead to a rather muddled picture for the UK constitution when taken alongside the Scottish case, particularly as Northern Ireland’s unionist parties are so firmly opposed to the Protocol that the Northern Ireland Assembly has been unable to function since last year. Either way, as has been proven in Scotland, finding a legal remedy is unlikely to settle ongoing questions that have arisen around the Protocol. Indeed, whatever the Court decides will only further fan the flames of debate.

As has been made very clear by the SNP in Scotland, while the Supreme Court’s decision and the rule of law is to be respected in and of itself, that does not mean the ruling can shut down debate. The Scottish government is determined to press ahead with its independence campaign and will hold a ‘special conference’ in March to determine how, exactly, the electorate’s opinion on independence can be heard. This could mean turning Holyrood or Westminster elections into a ‘de facto referendum’. Far from drawing a line under the north-south constitutional debate, the Supreme Court ruling has simply provided a reframing of it.

Margaret Taylor is a freelance journalist and can be contacted at mags.taylor@icloud.com