Meeting of the Parliament

Meeting date: Wednesday, November 23, 2022

Official Report 1245KB pdf

---

Urgent Question

---

Independence Referendum (Supreme Court Ruling)

The first item of business is an urgent question.

I had hoped that this question might be answered by the First Minister, but she is absent from the chamber.

To ask the Scottish Government what its response is to the UK Supreme Court’s ruling on the legality of an independence referendum bill.

As the Cabinet Secretary for the Constitution, External Affairs and Culture, it is entirely appropriate for me to answer questions about the constitution today. First Minister’s question time is tomorrow; I will wait to see whether Douglas Ross has any better questions then.

To answer the substantive question that is before us, the Supreme Court has decided that, under the devolution settlement, a referendum on the question

“Should Scotland be an independent country?”

is a matter that is reserved to the Westminster Parliament. That means that, without an agreement between the Scottish and United Kingdom Governments and the Scottish and UK Parliaments, a section 30 order or a UK act to change the Scottish Parliament’s powers, the Scottish Parliament cannot pass the laws that are required to hold a referendum to give effect to the mandate that people in Scotland gave it and to give us a choice about our future.

The Scottish Government accepts and respects that judgment. The Supreme Court was not asked to decide, and cannot decide, whether the Scottish Parliament should have the power to hold an independence referendum. Its job is to set out what the law is—in this case, the devolution settlement in the Scotland Act 1998—and that is what it has done.

The judgment makes it clear how the UK constitution gives the UK Government a veto over the right of people in Scotland to choose. The Supreme Court said in paragraph 81 of its judgment:

“A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.”

This is what the constitutional arrangements deny us:

“a democratic expression of the view of the Scottish electorate.”

Why does that matter? The Supreme Court tells us that the question is

“whether Scotland should cease to be subject to the sovereignty of the Parliament of the United Kingdom”.

So, the reason why the Scottish electorate does not get its chance to offer “a democratic expression” is because it would impinge on Westminster sovereignty if its views were known. That tells us what is truly left of promises that were made that the UK would operate as “a partnership of equals” and that we lived in

“a voluntary union of nations”.

No matter how the people of Scotland vote or how often they elect Parliaments that support a referendum or support independence, they cannot be told “No” by the UK Prime Minister. That cannot be right, and there are few stronger or more powerful arguments for independence than that. In a voluntary union, one part does not have to rely on the agreement of another before it is allowed to even think about leaving.

Cabinet secretary, I would be grateful if you could draw that particular response to a conclusion, because there is a great deal of interest in this item. I call Douglas Ross.

I noted that the cabinet secretary quoted paragraph 81 of the ruling and not paragraph 82, in which the judges said that they were absolutely

“in no doubt as to the answer”

to the question that they were considering.

Given the cost of the case in taxpayers’ money and in time, it is regrettable that the First Minister herself was unable to come to the chamber to answer. She was more than happy this morning to comment from behind a Scottish National Party podium, as SNP leader, but she is now unwilling, as First Minister, to answer questions in this chamber from elected Scottish parliamentarians.

The Scottish people have made it clear in poll after poll—[Interruption.]—that they do not want another referendum next year, so—[Interruption.]

Members!

I welcome the Supreme Court’s clear and unanimous judgment. It is one that we must all respect. I hope that the SNP back benchers do, as well.

We now have an opportunity to focus on the big challenges that Scotland faces right now: strikes, the global cost of living crisis, and a winter storm in our national health service. I ask the cabinet secretary this: will the SNP Government ditch its referendum obsession and get back to tackling those crucial issues for individuals, families and communities right across Scotland?

The inconvenient truth for Douglas Ross is that last year’s Scottish Parliament election decided the principle and the electorate decided the mandate—[Interruption.]—which was for parties that are in favour of an independence referendum. The SNP and the Greens won the election; the Scottish Conservatives lost the election—[Interruption.]

I think that this session will be a lot more productive if we can hear whoever is on their feet speak. I would be grateful if members could, please, resist any temptation to contribute while members are on their feet.

Thank you, Presiding Officer.

The position of the Scottish Government remains the same as what the First Minister announced to Parliament on 28 June. Nothing has changed in that respect. We would prefer the UK and Scottish Governments to agree to a section 30 order under the Scotland Act 1998 to allow a legal and constitutional referendum to go ahead. That is what the people have voted for. It is for the Scottish Conservatives to explain why they are blocking and denying democracy.

It is for the cabinet secretary to explain his misleading claim, because actually a majority of votes in the Scottish Parliament election were for parties that support our remaining part of the United Kingdom—more than for parties that support separation.

Let us be clear. The SNP’s political obsession with separation dragged both of Scotland’s Governments into court, but there is now a chance for Scotland and our two Governments to come together and move on. There is a clear choice for this SNP Government: either it continues to divide our country and focus on its political priorities, or it gets on with the job of dealing with the real priorities for Scottish people.

What choice will this Government make? Will it keep pushing for another referendum or will it focus on getting back to work, to deliver for the people of Scotland? Which will it be?

What I can say with absolute certainty is that my memory is long enough for me to remember that it was the Conservative Party that blocked Scottish democracy and devolution after the yes vote of 1979. It is long enough for me to remember that it was the Conservative Party that opposed devolution in the 1997 referendum. Perhaps it is unsurprising that the Conservative Party is not keen on Scottish democracy now. Blocking and denying democracy is a serious charge, and it is unfortunate that Douglas Ross and the Tories are leading the charge on it.

Douglas Ross spoke about opinion polls. Although opinion polls are interesting, election results are definite, as this chamber proves. This Parliament has the biggest majority for an independence revolution that there has ever been in the history of devolution. What does the UK Government’s refusal to respect that mandate say about its view of this Parliament and decisions that are made by the people of Scotland?

To be honest, it is difficult to understand why a UK Government, having established the principle of respecting that a referendum should take place when a majority in favour of it is elected to the Scottish Parliament—which is exactly what happened after the 2011 Scottish Parliament election—should now depart from that precedent. I can come to only one conclusion, which is that it is scared—scared of losing the referendum. All the excuses for why democracy should be blocked now are factually inaccurate. They are a fiction, and they are democracy denial. It is not a good look, in a democracy, for political parties to block democracy, but the Tories have had form on that for decades.

It was right for the Lord Advocate to refer this question to the Supreme Court, and it is welcome that we have the legal clarity on the matter that the Scottish Government sought. I also put on record my thanks to the court for its speedy work in considering the case. It is crucial that we now focus on the problems that our country faces, from soaring bills to the crisis in our NHS. Indeed, Scottish Labour will debate those issues in the chamber this afternoon.

Cabinet secretary, there is not a majority for a referendum or for independence, but neither is there a majority for the status quo. People across Scotland and, indeed, the UK, want change. Does the cabinet secretary agree that we need to get rid of the economically incompetent and morally bankrupt Tory Government, and that the best way to do that would be to help to elect a Labour Government across the UK to bring economic growth, restore living standards, prioritise our public services and deliver a green new deal?

I would prefer to get rid of unelected Tory Governments in Scotland for ever—[Interruption.]—for ever, but what Sarah Boyack suggests would not deliver that. I am quite taken by a quote that I have here from a colleague of Sarah Boyack’s—I think that she knows him—Anas Sarwar. He said:

“it should be the people of Scotland that decide when the next referendum is.”

That issue was debated last year in the Scottish Parliament election, and it was the defining issue of the election. Look around the chamber and see who is here—the parties that stood on a manifesto commitment to hold a referendum won the election. The party that opposed referendums lost the election. What a bizarre situation it is for Opposition parties to tell the governing parties that they should not do what they were elected to do. That is not a normal functioning democracy, and it is a very sad day to see the Labour Party—a party that was, in its day, a very strong supporter of home rule—joining the Tories in blocking Scottish democracy.

I have lost count of how many times the First Minister has launched a new independence campaign, each with less energy and momentum than the last. While Nicola Sturgeon goes through the motions, people wait days for an ambulance, months for NHS treatment and years for lifeline ferries. Breaking up the United Kingdom is simply not a priority for people who are opening their bills with dread or living in pain. My goodness, teachers are on strike tomorrow. Scotland needs new hope, not old divisions, so why will the SNP-Green Government not finally focus on what matters instead of this arrogant, tired and divisive charade?

I say gently that it is neither liberal nor democratic to stand in the way of democracy and people being able to make a yes-or-no choice. No doubt, we differ on whether we support independence. I know that Alex Cole-Hamilton does not want to hear that he represents a party with only four members and the worst election result in its history. That loss was secured on the back of opposition to an independence referendum. Maybe he should listen to the electorate, because the electorate—[Interruption.] Indeed, members may point at these benches. Parties that were elected with a manifesto commitment to deliver a referendum have the majority in the Parliament. I am sorry that the Scottish Liberal Democrats are being neither liberal nor democratic, nor standing up for democracy in Scotland.

I will start off by correcting Douglas Ross. Not only did the SNP and the Greens win more seats than the Opposition at last year’s election, but we won 16,057 more votes than all the anti-independence parties combined—[Interruption.]—and we did so on the basis of manifestos that committed to giving the people of Scotland a choice over their future. If this is a voluntary union, the onus is now on the UK Government to explain how a part of that union can decide whether to stay or go.

However, in the absence of any alternative being offered by Westminster, does the cabinet secretary agree that every vote cast for pro-independence candidates at the 2024 general election will count towards the mandate for Scotland’s independence?

Indeed, they will.

As democrats, it behoves all of us to embrace every democratic opportunity to secure democratic change. However, in a democracy it also behoves other political parties that have different views to uphold the basic tenets of democracy. Overlooking and disregarding election results where one can clearly see—because of the numbers on the Opposition benches being less than the majority of the Parliament—that it is the Opposition parties that are opposing the democratic mandate that sent us all here.

The question does not need to rest on the next UK general election, because the UK Government could meet with the Scottish Government and do what it did in the run-up to the 2014 referendum by saying, “We disagree on the principal question of independence—yes or no—but, as democrats, we agree that the people should have their say.”

It is time for the people of Scotland to have their say. They decided, they elected us to do this, and nobody—nobody—should stand in the way of the Scottish Parliament and the views of the Scottish people.

Today’s ruling from the Supreme Court confirms that this is not a voluntary union. I ask the cabinet secretary what the fact that the Scotland Act 1998 prevents Scotland from having a referendum to escape Westminster control says about the security of the devolution settlement and the state of democracy in the UK.

Perhaps surprisingly, I am going to quote Margaret Thatcher in answer to my colleague, because it was Margaret Thatcher who said:

“As a nation”

the Scots

“have an undoubted right to national self-determination.”

She also said:

“Should they determine on independence, no English party or politician”

should

“stand in their way”.

It was John Major who said of Scotland:

“No nation could be held irrevocably in a union against its will.”

As part of the cross-party Smith commission, after the 2014 independence referendum, all parties said:

“Nothing in this report”,

which we all agreed on,

“prevents Scotland becoming an independent country in the future should the people of Scotland so choose.”

They have chosen to have a choice, but the Conservative Party, the Labour Party and the Liberal Democrats are working hand in glove to deny the people their say. We need democracy in this country, and today we have seen the end of the voluntary union as we know it. We will not give up on democracy, and the people will have their say.