Viewpoints.........................................................................................................
Published:
2022-11-28
On November 23, 2022, the UK Supreme Court ruled that Scotland could not hold a referendum on independence without the approval of the UK government. What exactly happened to make the UK Supreme Court issue such a ruling? Our lawyers found the ruling on the website of the UK Supreme Court, and here's a look at the whole story of the incident. (This article is about 2300 words and the reading time is about 7 minutes) The ruling is 35 pages long. None of the incidents occurred in isolation, and therefore paragraphs 4-11 of the ruling set out the background to the matter. In 2014, Scotland held an independence referendum under the authority of the Order in Council, which resulted in more votes against independence than in favor. Now the Scottish government wants another referendum on independence, but the British Privy Council has refused to issue an Order in Council. So the Scottish government wants another referendum without an Order in Council. What needs to be explained is that the Privy Council is the advisory body of the British monarch, and the head of the Privy Council is the Speaker of the Privy Council. In addition to being a member of the cabinet, the person holding this position is also the fourth highest Minister of State. By convention, the Speaker of the Privy Council also serves as the leader of the House of Lords or the House of Commons. The current Speaker of the Privy Council is Penny Mordaunt, the current Leader of the House of Commons and the first female Defense Secretary. In 1998, the Parliament of the United Kingdom passed the Scotland Act 1998 (Scotland Act 1998), which authorized the establishment of the Scottish Parliament and established the autonomy of Scotland. In 2007, the Scottish National Party came to power to form the current Scottish government, and the Scottish National Party has been committed to promoting Scottish independence. Section 29 of the Scotland Act 1998 provides that laws made by the Scottish Parliament that are beyond the legislative competence are null and void, and it is expressly agreed that provisions relating to "reserved matters" of the Scotland Act 1998 are beyond the legislative competence. Annex 5 of the Scotland Act 1998 provides for "reserved matters", which includes Scotland, the United Kingdom and the United Kingdom Parliament. Therefore, as long as the Scottish Parliament's legislative documents refer to Scotland, the United Kingdom and the United Kingdom Parliament, then the clause is invalid. However, paragraph 34 of Annex 6 of the Scotland Act 1998 provides that the Senior Legal Officer of the Scottish Government, the Chief Counsel of the Crown, the Scottish Legal Officer of the British Government and the Northern Ireland Legal Officer of the British Government are empowered to refer issues (devolution issues) that are not part of the proceedings to the United Kingdom Supreme Court. Returning to this case, the holding of an independence referendum requires special legislation by the Scottish Parliament, otherwise the legitimacy of the outcome of the Scottish independence referendum cannot be guaranteed, and the legislative authority of the Scottish Parliament is restricted by the Scotland Act 1998. The Scottish Government has therefore decided to apply paragraph 34 of Annex 6 of the Scotland Act 1998 and, since direct legislation is not valid, to refer it to the United Kingdom Supreme Court, which will rule on the relevant competence. As a result, the Scottish government drafted the Scottish independence referendum bill, and senior legal officials of the Scottish government asked the English court whether the Scottish Parliament had the power to legislate for the holding of a referendum on Scottish independence under paragraph 34 of Annex 6 of the Scotland Act 1998? The British government's Scottish law officer then asked two other questions in response to the question raised by the Scottish government: Is the issue raised by the Senior Legal Officer of the Scottish Government a "devolution issue" and, if not, would not apply to paragraph 34 of Annex 6 of the Scotland Act 1998. 2. Even if the issue is a "decentralization issue", can the court refuse to accept the application at its discretion? In fact, the answer to the latter two questions is obvious. The Supreme Court of the United Kingdom has also made it clear in this ruling that this is a matter of decentralization and the Supreme Court has the power to decide. After the reasoning in paragraphs 48-54 is clear, the Supreme Court of the United Kingdom should accept the application. From paragraph 55, the UK Supreme Court answers the question posed by the Scottish Government whether the Scottish Parliament has the power to legislate for the holding of a referendum on Scottish independence? Similar to the domestic judgment, the British Supreme Court judges also listed the views and arguments of the Scottish side and the British government respectively in this part, and made it clear in the "court assessment (The court's assessment)" part of the similar domestic judgment, "whether the Scottish Parliament has the right to legislate on the holding of a referendum on Scottish independence?" it is relevant to the "reserved matter" of the Scotland Act 1998, as this issue clearly includes the question of whether the union between Scotland and England should be terminated and whether Scotland should cease to be subject to the sovereignty of the Parliament of the United Kingdom. The Scottish National Party representative also put arguments on the "principle of self-determination and legality" to the UK Supreme Court in an attempt to shake up the "reserved matters" provisions of the Scotland Act 1998. The UK Supreme Court has also elaborated on the principles of self-determination and legality. Interestingly, the United Kingdom Supreme Court used the Supreme Court of Canada's decision on the secession of Quebec as its case. In the Canadian jurisprudence on the province of Quebec, the Supreme Court of Canada held that the law in Canada did not disadvantage Quebecers in the sense of international law, and that the principle of self-determination applied only in three situations: 1. external self-determination in the case of a former colony; 2. oppression of a people, such as in the case of foreign military occupation; where a definable group is denied meaningful access to government in pursuit of its political, economic, social and cultural development. None of the above three reasons apply to Quebec. Accordingly, the Supreme Court of Canada ruled that the Parliament and the Government of Quebec did not have the right to unilaterally separate Quebec from Canada. The United Kingdom Supreme Court held that the Canadian opinion on the province of Quebec was equally applicable to Scotland and the status of the Scottish people in the United Kingdom, and that Scotland was not in the same situation as Kosovo, and that Scotland therefore did not apply the principle of self-determination. Ultimately, the UK Supreme Court concluded that the question of the referendum was "Should Scotland become an independent country?" as a result of the clause in the Scottish Independence Referendum Bill, which was related to the matter of reservation. Because it involves Scotland, the United Kingdom of England and the United Kingdom Parliament. Although the final conclusion is not clearly stated, according to the content of the conclusion, it can be concluded that it contains two meanings. First, the Scottish independence referendum bill is invalid. Second, it is the most important conclusion. Without the approval of the British government, Scotland is not allowed. Hold an independence referendum. After this ruling, does Scotland's independence come to an end? That is not the case. As mentioned earlier, Scotland held a referendum on independence in 2014. The referendum on Scottish independence in 2014 was actually a similar path to this one. On October 15, 2012, British Prime Minister Cameron and Scottish Chief Minister Salmond signed the "Edinburgh Agreement" (Edinburgh Agreement), agreeing to the Scottish Parliament to hold an independence referendum at an opportunity. To this end, the British Privy Council issued an Order in Council to amend the Scotland Act 1998 and temporarily devolve the power to hold an independence referendum to the Scottish Parliament for a period of December 31, 2014. The British government gave Scotland this opportunity in 2012, and the final facts also proved the judgment of the British government. But this time, the British government has not given Scotland the same opportunity again. Perhaps this choice itself can explain the problem. You and I will be witnesses to the fate of Scotland in the future.
On November 23, 2022, the UK Supreme Court ruled that Scotland could not hold a referendum on independence without the approval of the UK government.
What exactly happened to make the UK Supreme Court issue such a ruling? Our lawyers found the ruling on the website of the UK Supreme Court, and here's a look at the whole story of the incident.
(This article is about 2300 words and the reading time is about 7 minutes)
The ruling is 35 pages long. None of the incidents occurred in isolation, and therefore paragraphs 4-11 of the ruling set out the background to the matter.
In 2014, Scotland held an independence referendum under the authority of the Order in Council, which resulted in more votes against independence than in favor. Now the Scottish government wants another referendum on independence, but the British Privy Council has refused to issue an Order in Council. So the Scottish government wants another referendum without an Order in Council.
What needs to be explained is that the Privy Council is the advisory body of the British monarch, and the head of the Privy Council is the Speaker of the Privy Council. In addition to being a member of the cabinet, the person holding this position is also the fourth highest Minister of State. By convention, the Speaker of the Privy Council also serves as the leader of the House of Lords or the House of Commons. The current Speaker of the Privy Council is Penny Mordaunt, the current Leader of the House of Commons and the first female Defense Secretary.
In 1998, the Parliament of the United Kingdom passed the Scotland Act 1998 (Scotland Act 1998), which authorized the establishment of the Scottish Parliament and established the autonomy of Scotland. In 2007, the Scottish National Party came to power to form the current Scottish government, and the Scottish National Party has been committed to promoting Scottish independence.
Section 29 of the Scotland Act 1998 provides that laws made by the Scottish Parliament that are beyond the legislative competence are null and void, and it is expressly agreed that provisions relating to "reserved matters" of the Scotland Act 1998 are beyond the legislative competence.
Annex 5 of the Scotland Act 1998 provides for "reserved matters", which includes Scotland, the United Kingdom and the United Kingdom Parliament. Therefore, as long as the Scottish Parliament's legislative documents refer to Scotland, the United Kingdom and the United Kingdom Parliament, then the clause is invalid.
However, paragraph 34 of Annex 6 of the Scotland Act 1998 provides that the Senior Legal Officer of the Scottish Government, the Chief Counsel of the Crown, the Scottish Legal Officer of the British Government and the Northern Ireland Legal Officer of the British Government are empowered to refer issues (devolution issues) that are not part of the proceedings to the United Kingdom Supreme Court.
Returning to this case, the holding of an independence referendum requires special legislation by the Scottish Parliament, otherwise the legitimacy of the outcome of the Scottish independence referendum cannot be guaranteed, and the legislative authority of the Scottish Parliament is restricted by the Scotland Act 1998. The Scottish Government has therefore decided to apply paragraph 34 of Annex 6 of the Scotland Act 1998 and, since direct legislation is not valid, to refer it to the United Kingdom Supreme Court, which will rule on the relevant competence.
As a result, the Scottish government drafted the Scottish independence referendum bill, and senior legal officials of the Scottish government asked the English court whether the Scottish Parliament had the power to legislate for the holding of a referendum on Scottish independence under paragraph 34 of Annex 6 of the Scotland Act 1998?
The British government's Scottish law officer then asked two other questions in response to the question raised by the Scottish government:
Is the issue raised by the Senior Legal Officer of the Scottish Government a "devolution issue" and, if not, would not apply to paragraph 34 of Annex 6 of the Scotland Act 1998.
2. Even if the issue is a "decentralization issue", can the court refuse to accept the application at its discretion?
In fact, the answer to the latter two questions is obvious. The Supreme Court of the United Kingdom has also made it clear in this ruling that this is a matter of decentralization and the Supreme Court has the power to decide. After the reasoning in paragraphs 48-54 is clear, the Supreme Court of the United Kingdom should accept the application. From paragraph 55, the UK Supreme Court answers the question posed by the Scottish Government whether the Scottish Parliament has the power to legislate for the holding of a referendum on Scottish independence?
Similar to the domestic judgment, the British Supreme Court judges also listed the views and arguments of the Scottish side and the British government respectively in this part, and made it clear in the "court assessment (The court's assessment)" part of the similar domestic judgment, "whether the Scottish Parliament has the right to legislate on the holding of a referendum on Scottish independence?" it is relevant to the "reserved matter" of the Scotland Act 1998, as this issue clearly includes the question of whether the union between Scotland and England should be terminated and whether Scotland should cease to be subject to the sovereignty of the Parliament of the United Kingdom.
The Scottish National Party representative also put arguments on the "principle of self-determination and legality" to the UK Supreme Court in an attempt to shake up the "reserved matters" provisions of the Scotland Act 1998. The UK Supreme Court has also elaborated on the principles of self-determination and legality.
Interestingly, the United Kingdom Supreme Court used the Supreme Court of Canada's decision on the secession of Quebec as its case. In the Canadian jurisprudence on the province of Quebec, the Supreme Court of Canada held that the law in Canada did not disadvantage Quebecers in the sense of international law, and that the principle of self-determination applied only in three situations: 1. external self-determination in the case of a former colony; 2. oppression of a people, such as in the case of foreign military occupation; where a definable group is denied meaningful access to government in pursuit of its political, economic, social and cultural development. None of the above three reasons apply to Quebec. Accordingly, the Supreme Court of Canada ruled that the Parliament and the Government of Quebec did not have the right to unilaterally separate Quebec from Canada. The United Kingdom Supreme Court held that the Canadian opinion on the province of Quebec was equally applicable to Scotland and the status of the Scottish people in the United Kingdom, and that Scotland was not in the same situation as Kosovo, and that Scotland therefore did not apply the principle of self-determination.
Ultimately, the UK Supreme Court concluded that the question of the referendum was "Should Scotland become an independent country?" as a result of the clause in the Scottish Independence Referendum Bill, which was related to the matter of reservation. Because it involves Scotland, the United Kingdom of England and the United Kingdom Parliament.
Although the final conclusion is not clearly stated, according to the content of the conclusion, it can be concluded that it contains two meanings. First, the Scottish independence referendum bill is invalid. Second, it is the most important conclusion. Without the approval of the British government, Scotland is not allowed. Hold an independence referendum.
After this ruling, does Scotland's independence come to an end? That is not the case. As mentioned earlier, Scotland held a referendum on independence in 2014. The referendum on Scottish independence in 2014 was actually a similar path to this one.
On October 15, 2012, British Prime Minister Cameron and Scottish Chief Minister Salmond signed the "Edinburgh Agreement" (Edinburgh Agreement), agreeing to the Scottish Parliament to hold an independence referendum at an opportunity. To this end, the British Privy Council issued an Order in Council to amend the Scotland Act 1998 and temporarily devolve the power to hold an independence referendum to the Scottish Parliament for a period of December 31, 2014.
The British government gave Scotland this opportunity in 2012, and the final facts also proved the judgment of the British government. But this time, the British government has not given Scotland the same opportunity again. Perhaps this choice itself can explain the problem. You and I will be witnesses to the fate of Scotland in the future.
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