Scottish Referendum Legislation: Supreme Court Judgement

Thursday 24th November 2022 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Wednesday 23 November.

“I am grateful to the right honourable Member for providing me with the opportunity to address the House on this important ruling of the Supreme Court on the issue of the competence of the Scottish Parliament to legislate for a referendum on independence.

The UK Supreme Court has today determined that it is outside the powers of the Scottish Parliament to hold an independence referendum, and I respect the court’s clear and definitive ruling on this matter. The Scottish Government’s Lord Advocate referred this question to the Supreme Court, which has today given its judgment, and the UK Government’s position has always been clear: that it would be outside the Scottish Parliament’s competence to legislate for a referendum on Scottish independence because it is a matter wholly reserved to the United Kingdom Parliament.

We welcome the court’s unanimous and unequivocal ruling, which supports the United Kingdom Government’s long-standing position on this matter. People want to see the Scottish Parliament and the Scottish Government focus on issues that matter to them, not on constitutional division. People across Scotland rightly want and expect to see both their Governments—the United Kingdom Government and the Scottish Government—working together with a relentless focus on the issues that matter to them, their families and their communities.

The Prime Minister has been very clear, and has demonstrated since day one, that it is our duty to work constructively with the Scottish Government. We fully respect the devolution settlement and we want to work together with the Scottish Government on vital areas such as tackling the cost of living, growing our economy and leading the international response to Russia’s illegal war in Ukraine.

At this time of unprecedented challenges, the benefits of being part of the United Kingdom have never been more apparent. The United Kingdom Government are providing the Scottish Government with a record block grant settlement of £41 billion per year over the next three years, and the people in Scotland are benefiting from unprecedented cost of living support announced by this Prime Minister and our Chancellor. It is important now that we move on from constitutional issues, to focus on tackling our shared challenges. I therefore welcome the Supreme Court’s judgment, and I call on the Scottish Government to set aside these divisive constitutional issues so that we can work together, focusing all of our attention and resources on the key issues that matter to the people of Scotland.

The United Kingdom Government are proud of their role as the custodian of the devolution settlement. The United Kingdom is one of the most successful political and economic unions in the world. By promoting and protecting its combined strengths, we are building on hundreds of years of partnership and shared history. I will conclude by saying that when we work together as one United Kingdom, we are safer, stronger and more prosperous.”

12:01

[Baroness Smith of Basildon (Lab)]

My Lords, I always feel I have a slight vested interest in this issue, being a living example of an English-Scottish relationship, with an English mother and a Scottish father. Like many others in your Lordships’ House, I remain committed to a stronger union.

However, today in Scotland there are wide and acute concerns about the health service, education and the economy—concerns shared across the whole of the UK—so it continues to disappoint that independence remains the SNP’s top priority, rather than an absolute focus on improving public services and changing lives now. However, does the Minister acknowledge that there has been a failure by this Government to illustrate clearly why the case for independence is built on myths and false hope? Will he accept, as we do on these Benches, that a strong commitment to the union goes hand in hand with effective and practical devolution?

[The Parliamentary Under-Secretary of State, Scotland Office (Lord Offord of Garvel) (Con)]

My Lords, the UK Government note and respect the unanimous ruling by the Supreme Court that the Scottish Government do not have legislative competence to hold a referendum. The people of Scotland want both our Governments to concentrate all our attention and resources on the issues that matter most to them. That is why we in the UK Government are focused on restoring economic stability, getting people the help they need with their bills and supporting our NHS. As the Prime Minister has made clear, we will continue to work constructively with the Scottish Government on tackling all the challenges that we share and face.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, is the Minister aware that the First Minister of Scotland has said that, although it is now clear that there is not going to be a referendum, she will continue to spend British taxpayers’ money on Civil Service and other preparations for this non-existent referendum? Is that not a disgrace, particularly today when teachers in Scotland are on strike because they are not getting enough of a pay increase?

[Lord Offord of Garvel (Con)]

The noble Lord will be aware that under the devolution settlement the UK Government do not prescribe to the Scottish Government how to spend the money sent north of the border. That allows the Scottish Government to make grown-up decisions on their own behalf and on behalf of the people of Scotland. The judgment of the Supreme Court has given us helpful clarity on the difference, which we all knew about, between reserved matters and devolved matters. The constitution is therefore clearly reserved, while the spending of £20 million in that area is a matter for the Scottish Government. The noble Lord will know that that could be the equivalent of 1,000 new nurses, 650 police officers or 600 teachers. On a day when schools are out on strike, it is for all of us to point out within the Scottish environment that the Scottish Government should be directing their attention to matters for which they have devolved responsibility.

[Lord Forsyth of Drumlean (Con)]

My Lords, when I was a councillor, if a council spent money that was ultra vires, the councillors were personally liable. Given the behaviour of the Scottish Government, should we not be extending the ability to surcharge Members of the devolved Administrations where they incur expenditure that is ultra vires?

[Lord Offord of Garvel (Con)]

My noble friend is an eminent former Secretary of State for Scotland and knows his territory well. He will also be aware of the architecture put in place at the time of the 1998 Act, which has been further improved by the 2012 and 2016 settlements. Within that, the UK Government give the Scottish Government the discretion to spend their money on behalf of the Scottish people, and it is down to the Scottish people to give their view on that at the ballot box.

[Lord Bruce of Bennachie (LD)]

My Lords, the outcome of the Supreme Court judgment was predictable end inevitable. It has been a distraction and a complete waste of time and Scottish taxpayers’ money, and I speak with personal affront about that. Will the Minister consider in any future referendum setting out the conditions and criteria by which a referendum would be triggered and conducted, so that people know the circumstances and do not have to suffer this never-ending push? Does he agree that for the SNP to complain about democracy is to forget that they have betrayed the people of Scotland, who have twice voted for devolution and never voted for independence?

[Lord Offord of Garvel (Con)]

The noble Lord, another eminent Scottish politician, is well aware of the circumstances in which they are operating. There is no need to be talking about another referendum. The Supreme Court has made it very clear that there is no avenue for that within the Scottish Government. More importantly, there is no appetite now. When the referendum was held in 2014, there was consensus across both Parliaments, all parties and civil society that the referendum should be held. Some 3.6 million Scots voted, 2 million of whom voted to stay in the UK while 1.6 million voted to leave. That is a decisive result and, given that since that time the SNP has consistently polled only in the region of 1.3 million to 1.4 million votes, it has no more than one-third of the population who want to pursue a separatist agenda, in which case there is no need for us to consider another referendum.

[The Earl of Kinnoull (CB)]

My Lords, at home, on the register in Perthshire, there are four voters. I have kept the election communications from the May 2021 election. These communications from the SNP and from the Scottish Green Party are extremely smart. They are brimming with reasons why you should vote for either the Scottish Greens or for the SNP, but nowhere do they mention the idea of a referendum or independence. How does the Minister feel that chimes with the claimed mandate of the SNP Scottish Government for a referendum?

[Lord Offord of Garvel (Con)]

The Scottish Government have been dominated by the Scottish National Party for eight elections in a row. They have done that on the basis of 1.3 million to 1.4 million votes, and under that they have a legitimate mandate to govern the UK—sorry, I mean within the Scottish Government. [Laughter] In the other place, we know that UK Governments can effectively govern on a mandate of 35% to 40% of the vote. No one is disputing that that is a mandate to govern, but it is not a mandate to break up a country. Where there continues to be no more than one-third of popular support to break up the UK, there is no need for us to pursue the case.

On my travels abroad, I was recently in Iceland and met the Icelandic Prime Minister. She had just had a meeting with Angus Robertson, who I think was passing himself off as the Foreign Secretary of Scotland. She said to me, rolling her eyes, “The poor people of Scotland are so oppressed, not being allowed to leave. There is obviously majority support for independence. Why won’t the UK Government allow the Scottish people to have their freedom?” I said, “Prime Minister, I believe you had your independence from Denmark in 1944.” She said yes. I said, “I believe you had a vote.” She said yes. I asked, “What was the vote in favour of independence?” She said it was 96%. I said, “The SNP currently has 37%.” She smiled and said, “Let’s talk about energy.”

[Lord Reid of Cardowan (Lab)]

My Lords, the decision of the Supreme Court will not have come as a surprise to anyone who understood the legislation. It was a complete diversion. As the Minister said, the task in front of the Government of Scotland is surely to address the present economic crisis and its effect on the dreadful performance in education and health. If that is true in Scotland, though, it is surely also true for the British Government. Will the Minister therefore assure me that the Government have no plans to introduce wholesale constitutional changes over the next few years that would just divert us from addressing the main problems facing this country?

[Lord Offord of Garvel (Con)]

I assure the noble Lord, Lord Reid, another distinguished former Scottish Secretary, that there the UK Government have no plans to alter the constitutional settlement any further. Scotland is a very well-funded country. It has two Parliaments and a surplus of democracy, as the Supreme Court said yesterday.

In the meantime, it receives a record grant of £41 billion from the UK Government. We continue to support 1,700 Scottish shipbuilding jobs on the Clyde with a £4 billion settlement. The levelling-up funds of £172 million are also coming through. We are establishing two Scottish freeports and £52 million is supporting our Scottish producers in fisheries. For farmers, there is £1.6 billion and £1.5 billion has been committed to 12 city deals, which is my responsibility. Scotland is very central in the United Kingdom Government’s plan for prosperity and growth. Scotland has a very, very good deal.

[Lord Wigley (PC)]

My Lords, I may be the only Member of this House who will take the view that I am about to. In view of the court case and the right to hold a referendum having been confirmed as being here, and in view of the fact that the overwhelming majority of elected Scottish MPs support having a referendum, will the Minister publish a document clarifying the way in which such a referendum can be held or is he going to maintain an everlasting veto on the aspirations of the people of Scotland?

[Lord Offord of Garvel (Con)]

The SNP does not have a majority in Holyrood and therefore cannot say that it has a majority. As the noble Earl, Lord Kinnoull, pointed out, the SNP’s own prospectus for government was not based on independence; it was based on, apparently, being able to run Scotland better. On that basis, there is no need, given yesterday’s judgment, for any further tinkering on the subject.