Scotland's independence ruling proves the UK's political tensions cannot be legalled away 🏴 A legal question has been answered – a political one remains
It may well have political effects, but these are complex, unforeseeable, and wouldn’t alter one clause or comma in what passes for Britain’s constitutional law.
Emphasising the limited legal effects of an advisory referendum was the Scottish Government’s best shot. This is, after all, what courts ordinarily do. Judges are generally more comfortable dealing with the detail of the law, rather than speculating about the contingent consequences of the decisions they reach.
However, there has been a discernible trend away from this approach in the UK Supreme Court’s cases on devolution in recent years. The Court has been increasingly prepared to take account of the political implications of devolved legislation on Westminster – usually to justify a more restrictive interpretation of what Holyrood can and cannot do. So it proved here.
Whatever the outcome of the referendum, Lord Reed held that the “clear expression” of the Scottish electorate’s wish “either to remain within the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement.” On this basis, any independence referendum would trespass into reserved territory.
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