UKCLA October 3, 2022 Scotland, Second Scottish Independence Referendum, United Kingdom

Shona Wilson Stark and Raffael Fasel: Unconstitutionally Legal: How the UK Supreme Court Should Decide the Lord Advocate’s Reference

On 28 June 2022, the Lord Advocate referred to the UK Supreme Court (“UKSC”) the question of whether the Scottish Parliament has the power to legislate for a second independence referendum (“Indyref 2”) without an Order enabling it do so under section 30 of the Scotland Act 1998 (a “section 30 Order”). Assuming the UKSC will accept the reference, we argue that it should rule that the Scottish Parliament has no legal power to pass legislation facilitating an independence referendum without a section 30 Order. However, we propose that this does not prevent the UKSC from attempting to break the deadlock by declaring that the UK Government is acting unconstitutionally in a political sense if it does not make a section 30 Order. Of course, there is no guarantee that a section 30 Order would be issued – we consider alternative pathways to an Indyref 2, including possible invocations of constituent power, in a forthcoming article – but we argue that this would be a constitutionally proper and desirable approach for the UKSC to take.

Legally, the Scottish Parliament cannot legislate for Indyref 2 without a section 30 Order

Based on the wording of the Scotland Act 1998, we do not believe that the UKSC should decide that the Scottish Parliament can legislate for a referendum without a section 30 Order. Section 29(2)(b) and paragraph 1 of Schedule 5 of the Scotland Act 1998 state that issues are outside the Scottish Parliament’s competence – and thus necessitate a section 30 Order – if they “relate to” “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom”. The Inner House of the Court of Session recently implied that a section 30 Order would be needed because a referendum on Scottish independence would “relate to” those matters in more than a “loose or consequential” way. Lord Carloway observed that it would “not be too difficult to arrive at a conclusion” on the matter in the case of Keatings v the Advocate General and the Lord Advocate. However, he ultimately held that determining whether a section 30 Order was needed was premature, hypothetical, and academic at that stage and with that petitioner (an independence campaigner seeking information prior to the Holyrood election of May 2021). The UK Government compares the present case to Keatings and argues that it, too, is premature and should be dismissed. But that argument fails given how many of the unknowns central to the Court’s decision in Keatings (para 55) are now resolved. For example, the outcome of the May 2021 Scottish election is obviously now known, as is the current Scottish Government’s clear intention to find a pathway to determine the independence question, including specifying a proposed referendum date of 19 October 2023. With the Lord Advocate stating that she is “unlikely to have the necessary degree of confidence that the [Scottish Independence Referendum] Bill does not relate to a reserved matter to ‘clear’” it, and no section 30 Order forthcoming, the UKSC would thus be ideally placed to break the impasse.

That the Bill relates to reserved matters in more than a “loose or consequential” way is evident from the definition of “relates to” found in the Scotland Act 1998 itself, with section 29(3) clarifying that the provision’s “purpose” and “its effect in all the circumstances” are to be taken into account when determining whether a provision “relates to” a reserved matter. We cannot agree that it might be “credible” to argue that the motivation behind a potential referendum could be relevant to determining the issue of competence (i.e. that a referendum could be within the Scottish Parliament’s competence if its “purpose” is seen as simply surveying the Scottish public on their “constitutional future” rather than “the destruction of Britain”). As the Advocate General for Scotland has noted, the reserved matter is “the Union”, not “the dissolution of the Union”. And the same argument could be made with regard to the reserved matter of “the Parliament of the United Kingdom”: quite apart from the motivation behind a referendum, the sheer possibility that it could lead to the UK Parliament losing its sovereignty over Scotland creates more than just a “loose” connection. In other words, the narrow “purpose” of a provision cannot be considered in isolation from its potential “effect in all the circumstances”. Based on the statutory language, it is therefore difficult to see the UKSC concluding that the Scottish Parliament has the power to legislate for a referendum without a section 30 Order.

Apparently, the case of R (on the application of Miller and another) v Secretary of State for Exiting the European Union (“Miller I”) gives Unionists cause for “concern” that the proposed Bill is within competence after all. This is because Miller I confirmed that referenda whose authorising statutes do not provide for any legal effects in the event of adoption can at most have political effects. Andrew Tickell has argued that this provides a “stateable case” for arguing that the Scottish Parliament has the competence to proceed with the Bill: aimed merely at “ascertaining the views of the people of Scotland on whether Scotland should be an independent country” (section 1 of the Bill), the referendum would be purely advisory and therefore have no legal effects. Hence, the argument goes, Indyref 2 would not necessarily “relate to” the Union as it would have no legal effect whatever on the Union. So great is this “concern” that it has led Adam Tomkins to seemingly change his mind about the Scottish Parliament’s powers, having been more certain in the run up to the 2014 referendum that a section 30 Order was required. In our view, however, Miller I could more plausibly be read in support of the UK Government’s case because the UKSC made clear in Miller I that even referenda that lack legal effect need not be “devoid of effect”. Although the EU referendum was advisory only, the UKSC found that it in fact had “great political significance” (para 124). To consider that Indyref 2 would not “relate to … the Union” purely because it is not legally binding is indeed “absurd”.

Constitutionally, the UK Government’s actions should be declared improper in a political sense

But the wording of the Scotland Act 1998 is not the end of the matter. As Joanna Cherry KC MP has argued, the UKSC needs to look to the “wider constitutional context” when determining the reference. Cherry invoked Scotland’s right to self-determination – a right that also featured prominently in Nicola Sturgeon’s statement on Indyref 2 – and noted that the UKSC should have something to say about the UK Government’s refusal to allow Indyref 2 despite what she rightly anticipated to be a “clear electoral mandate in favour of [it]”. We argue that she is correct, at least in a political sense. For although the idea of a Scottish right to self-determination is controversial from the perspective of international law, this does not prevent the UKSC from taking seriously the constitutional importance of the SNP’s manifesto and the principle of democracy more broadly. Indeed, section 63A of the Scotland Act 1998 (as added by the Scotland Act 2016 s. 1) could be interpreted as UK governmental recognition of the democratic importance of the views of the Scottish people and a Scottish right to self-determination. To be sure, this provision, which assures the “permanence” of the Scottish Parliament and Government unless the Scottish people decide otherwise in a referendum, is without legal effect. However, in line with David Feldman’s suggestion, its drafting can be taken to reflect (and, indeed, bolster) the political reality of the permanence of devolution.

Currently, the UK Government is undermining democracy by refusing to take seriously the SNP’s 2021 manifesto pledge and its endorsement by the Scottish people, as well as the January 2020 Scottish Parliament vote in favour of Indyref 2. Indeed, in the SNP’s application to intervene in the reference (which was recently granted in limited form), they have suggested that the UK Government is acting unconstitutionally for the same reason that underpins the Salisbury convention – it being “at least constitutionally improper” to prevent the implementation of a clear manifesto commitment. Obviously, the Salisbury convention itself does not apply: we are not dealing with a House of Lords voting down Government Bills that aim to deliver on election manifestos, but rather with a national Government that is resisting the free exercise of democratic will-formation in a devolved nation. Yet, the SNP have a strong case that a similar underlying principle is engaged. In both contexts, we are faced with elected groups’ manifesto pledges that are at risk of being thwarted by bodies with less democratic legitimacy.

The UKSC may therefore find it necessary to engage with the constitutional principle underlying the Salisbury convention. More specifically, it may have to grapple with the question of whether the will of a democratically elected devolved parliament is more important constitutionally than that of the UK Government. We believe the seeds for an answer to this question can be found in AXA General Insurance Limited and others v The Lord Advocate and others, R v Secretary of State for the Home Department, Ex Parte Pierson, and R (on the Application of Miller) v The Prime Minister; Cherry v Advocate General for Scotland (“Miller II”). In AXA, Lord Hope noted that intervention with the Scottish Parliament should occur, “if at all, only in the most exceptional circumstances” (para 49). To be sure, Lord Hope was referring to judicial review of Acts of the Scottish Parliament, not interventions by the UK Government in Scottish Parliament votes. But his finding that the Scottish Parliament benefits from the “advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate” (para 49) appears valid regardless of who is doing the intervening and of whether the intervention is to legislation or (as in this case) a parliamentary vote. Lord Hope’s point, which was echoed in Lord Reed’s opinion, applies to the devolved constitutional settlement the logic of Lord Steyn’s famous dictum in Ex Parte Pierson that “Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law” (at 587). In other words, the principle of democracy plays a key role in the UK constitution and cannot easily be discarded, especially by an executive body that lacks the same democratic legitimacy as the devolved legislature.

The UKSC may not be ready to embrace arguments that democracy is a legal rather than simply a political principle of our constitution. But that does not stop it from declaring the UK Government’s actions unconstitutional in a political sense because denying the section 30 Order would frustrate democratic will-formation in contravention of an election manifesto pledge. In Re: Resolution to Amend the Constitution [1981] 1 SCR 753, the Canadian federal government attempted to patriate the Canadian constitution without the majority of the provinces’ consent. By majority, the Supreme Court of Canada (“SCC”) ruled that this action was lawful, but unconstitutional in a political sense because it violated a constitutional convention that such consent would be sought. For the UKSC, too, such a judicial statement would be an appropriate means of attempting to break the deadlock by exerting some political pressure similar to the Canadian case, where the SCC’s judgment encouraged further political negotiations which eventually secured the majority of provinces’ consent.

Granted, such an approach would be a departure from the UKSC’s treatment of the Sewel convention in Miller I, where it held that judges “are neither the parents nor the guardians of political conventions” (para 146). However, we agree with Mark Elliott that that case shows “a strikingly narrow view of the proper extent of judicial engagement with conventions” which sits “uncomfortably with existing case law” such as Evans v Information Commissioner and Attorney General v Jonathan Cape Ltd. One might assume that the UKSC in Miller I felt constrained by the Sewel convention’s implications for Westminster sovereignty. A more robust approach (although still short of legal enforcement) in the present case is warranted since the considerations point the opposite way: here, the wishes of the Scottish Parliament and people are being thwarted by the Westminster government, not Westminster sovereignty. Judges may be “neither the parents nor the guardians” of conventions, but even “mere[] observers” (Miller I, para 146) can express their opinion that an important constitutional principle is under threat.

Although it is fair to say that the UKSC has typically been “quite conservative in its constitutional jurisprudence” in recent years, one notable exception is Miller II. The UKSC’s use of constitutional principle in that case sets a helpful precedent to be used in the present case. In particular, the Miller II Court’s engagement with the principle of governmental accountability per se, rather than as a principle underlying any specific constitutional convention, should serve as inspiration for the Court in the case at hand. The current stand-off over Indyref 2 constitutes as much of an “arbitrary exercise of executive power” as was risked by the unlawful prorogation (Miller II, para 46). After all, the extent of the Westminster government’s discretion in relation to the making of section 30 Orders is surely also limited, politically, by constitutional principle. Unlike when determining the limits of a prerogative power, such limitations cannot be set judicially. However, that does not give the Court reason to be as timid as in Miller I. Rather, it should state that important constitutional principles should not be disregarded.

Nicola Sturgeon has been clear that if the UKSC determines that a section 30 Order is needed, the fault will not be of the UKSC, but of the Westminster legislation (i.e. the Scotland Act 1998). In our view, the problem is neither the UKSC nor the legislation, but the behaviour of the UK Government, in its unwillingness to recognise the “material changes in circumstances” since 2014, and an apparent unwillingness to negotiate with a democratically elected leader. The UK Government’s actions may not be contrary to law – but that does not mean that the UKSC cannot play an important role in attempting to encourage civilised negotiations.

The authors are extremely grateful to Professors Michael Gordon and Alison Young for their invaluable comments on an earlier draft.

Shona Wilson Stark is an Official Fellow of Girton College and an Assistant Professor at the Faculty of Law, University of Cambridge

Raffael Fasel is an Affiliated Lecturer at the Faculty of Law, University of Cambridge, a Visiting Scholar at NYU Law School, and a SNSF Senior Researcher at the University of Zurich

(Suggested citation: S. Wilson Stark and R. Fasel, ‘Unconstitutionally Legal: How the UK Supreme Court Should Decide the Lord Advocate’s Reference’, U.K. Const. L. Blog (3rd October 2022) (available at https://ukconstitutionallaw.org/))

12Comments

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1

John Hartigan on October 3, 2022 at 4:40 pm
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This argument assumes that democracy only applies in Scotland. The current U.K. government also has a mandate – to refuse another referendum. It’s on page 45 of the 2019 Conservative manifesto. The convention is that major constitutional decisions should have a mandate. It has served us well for generations and we ignore it at our peril. It’s perfectly possible for a future U.K. government to secure a mandate to change the Scotland Act for Scotland’s right to hold an independence referendum as was the case for devolution in 1997. As argued here:
https://www.dailyglobe.co.uk/comment/indyref2-has-already-been-decided-someone-please-tell-nicola/
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  michaelpicken on October 5, 2022 at 5:44 pm
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  In June 1992 the UK government of John Major declared its recognition by the UK state of the independent state of Slovenia. Such a secession was illegal under the 1974 Constitution of the Federal Republic of Yugoslavia, as the state of Serbia declared that they had the legal power to veto secession under the Constitution articles stating that all of the states of the Federation MUST unanimously agree to any state leaving. The UK government accepted the independence as the Slovenian parliament had held a referendum in December 1991 giving overwhelming support to independence/secession, despite the blatantly unconstitutional nature of any secession under Yugoslav domestic law. The claim by the government and people of Serbia that they also had rights in this matter was immediately ignored by the UK government and most other EU governments, on the grounds that the UN Charter gives nations the rights to self determination. The only issue was whether the people of Slovenia had gone through a valid process to establish whether they wanted an independent state, not whether the people and government of Serbia had a say in that. Pot. Kettle. Black.
  
  The UK state has no constitutional provisions on how its constituent nations secure their independence, other than that the people of the six counties in the north of Ireland that is part of the UK state alongside the population of the state known as the Republic of Ireland can have a say through a Border Poll for reunification of the state, under the terms of the Good Friday Agreement international treaty, and that such a Border Poll can take place repeatedly at 7 year intervals. There is no provision in the Good Friday Agreement international treaty for the rest of the people’s of the UK to have any say or veto in the matter. In 2011 the UK government accepted that due to the outcome of the Scottish Parliament referendum they would make a Section 30 order under the Scotland Act 1998 making clear that the Scottish Parliament had the legal power to call a referendum. There was no decision for the rest of the people’s of the UK to have any say in the matter. In the Smith Commission Agreement of 2016, the major UK parties represented at Westminster signed to a binding agreement that stated “It is agreed that nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose.”. This agreement led to a Command paper and the Scotland Act 2016. It is clear from this Agreement that the existing parties at Westminster are bound to an agreement that only the people of Scotland have the right to choose whether to become an independent country. The question before the Supreme Court is a different one – does the Scottish Parliament have the legislative competence to hold a non-executing consultative referendum? (as the people of Slovenia did in 1991, recognised as valid by the UK government of the time)
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Charlie Stirling on October 5, 2022 at 7:50 am
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Could you summarise the manifesto commitments that the current UK government have successfully implemented…maybe even summarise the manifesto commitments the UK Government abandoned, since they have abandoned many of them does this nullify the election result based on the possibility that it was won based on commitments they had no intention or even hope of implementing…it should also be noted that the people of Scotland are sovereign https://commonslibrary.parliament.uk/research-briefings/cdp-2018-0171/
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  John Hartigan on October 6, 2022 at 9:07 am
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  By all means debate the respective mandates, but they shouldn’t simply be ignored, particularly on such important issues such as constitutional matters (see the Monarchy Question in this article):
  
  https://www.dailyglobe.co.uk/comment/the-tyranny-of-boris/
  
  Whatever its faults, it’s how our system works. I agree that this should be a matter for the Scottish people, but no UK-wide party has yet secured a mandate to change the Scotland Act accordingly, as proposed in the earlier link. As with devolution, it can, and in my view, should happen.
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  michaelpicken on October 6, 2022 at 9:39 am
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  It’s certainly the case that constitutional manifesto commitments have been reneged on in the past. In its October 1974 manifesto for the UK General Election, the Conservative and Unionist Party committed the party to legislating for a Scottish devolved assembly (in line with the recommendations of the Royal Commission on the Constitution (‘Kilbrandon’)). There was no reference to a referendum, the manifesto was unequivocal : “In Scotland we will set up a Scottish Assembly” (Labour had a similarly worded commitment, as did the Liberals). In the event there was no party with a majority in the House of Commons at the time and Members of Parliament voted, idiosyncratically, for a unique ‘trigger’ referendum, such that 40% of the electorate of Scotland had to vote for the Assembly before it came into force,. Although there was a clear majority for the Assembly it did not reach that threshold, and therefore the Act establishing the Assembly fell. The 40% threshold is so high that had it applied to the consultative EU Referendum of 2016, the ‘Leave’ proposition would have been declared lost. Of course MPs are not bound by the manifesto of their party they represented at the time of the election. They are individual lawmakers elected to represent their constituency. The argument that a general election manifesto is a binding promise on all MPs is legally specious. It may have some constitutional weight in the procedures of the Houses of Parliament and in terms of priorities and in the minds of civil servants carrying out the policy of government ministers, but in terms of law-making MPs in the House of Commons are free to make up their minds and cannot be legally bound by party loyalty, members of the House of Lords similarly. Nor can a consultative referendum bind MPs even when the referendum is legislated for by the same House – Teresa May and a number of other Conservative MPs voted against the establishment of the Welsh Assembly in 1999 on the grounds that the narrowness of the majority in the consultative referendum was insufficient (a somewhat strange concept of democracy); MPs of the SNP voted against holding the EU referendum of 2016 and refused to be bound by its outcome, consistently voting in the House of Commons against withdrawal from the EU. In 1973 Labour Party MPs refused to support the holding of a constitutional consultative referendum, the so-called ‘Border Poll’ in the north of Ireland that had been passed by the soon-to-be dismantled Parliament of Northern Ireland. But it was enacted by the governing party in the UK Parliament solely on the grounds that a majority of MPs in the Parliament of Northern Ireland had asked them to legislate for it before their abolition. The Conservative and Unionist manifesto in 1970 stated that they would support “the Government of Northern Ireland” – in fact they abolished the Government and Parliament of Northern Ireland and only agreed to that consultative referendum on a constitutional issue as a concession to that Government before its abolition. Twice the UK Parliament has passed legislation to bring in a signficant change in the voting system – the 1918 Representation of the People Act contained a clause stating that the Single Transferable Vote system would be used in up to 100 constituencies subject to a consultation process, this was not to be through a referendum but a series of local meetings that were reported as being hostile to the measure at a poorly attended meeting of the House of Commons (there was a War on) and that part of the Act was negated; the Parliamentary Voting System and Constituencies Act 2011 contained a ‘trigger’ referendum (in legal contradistinction to a ‘consultative’ referendum). This referendum was not in the manifestos of any party in the 2010 General Election but came about as a result of the ‘governmental agreement’ formed AFTER the election between the Conservative and Unionist and the Liberal Democratic Parties. In order to understand the legal status of a consultative referendum on a constitutional issue, you have to examine all the relevant and current precedents, not just the ones that are convenient.
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    John Hartigan on October 10, 2022 at 7:22 am
    
    It isn’t argued that manifestos are legal. This article and the SNP submission make various political rather than legal points about the Scottish Government’s democratic mandate and I have considerable sympathy with this view, but both documents fail to note the opposite democratic mandate. This is a serious omission which should be debated, as we now are. My short book has explored this principle of consent for constitutional decisions. It was summarised in the earlier link but is also here. The key point is: how else do you answer the Monarchy Question?
    
    https://www.dailyglobe.co.uk/comment/the-tyranny-of-parliament/
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    Michael Picken on October 10, 2022 at 5:35 pm
    
    Thank you John, but you are barking up the wrong tree. The legal basis of the “doctrine of Westminster omnipotence and Parliamentary infallibility” is certainly “not very British”. As the SNP submission to the Supreme Court points out it is an entirely English legal concept. The doctrine of the Scottish legal system, preserved as independent from English law by the Acts of Union 1707, is that it is the people who are sovereign and infallible. The statement by Lord President Cooper in MacCormick v Lord Advocate 1953 SC 396 (at 411) is identified in the submission as a key issue that the Court should follow. Under Scots Law, the question the Supreme Court has to unravel is how do we determine how that sovereignty is decided: by reference to an undemocratic and unreasonable Westminster government?; or by reference to the decision of the people of Scotland in electing a majority to the Scottish Parliament in May 2021 in favour of holding a consultative and non-executing referendum – exactly as English local councils in Somerset (on the same day) and in numerous other cases in recent years have clear legal powers to do.
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michaelpicken on October 5, 2022 at 4:54 pm
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Four local authorities in Somerset argued in 2021 that they had the powers under the ‘general power of competence’ in the Localism Act 2011 to organise a consultative referendum on something that was not within their competence. The consultative referendum on whether local people agreed that the four councils should be dissolved into one went ahead, despite a token protest that this was illegal. No legal challenge emerged, and the four councils duly organised their referendum in May 2021 with the electorate voting by two to one to reject the government’s proposed dissolution of the council’s and their reorganisation into a single council. The government rejected the outcome of the referendum and, by implication, public opinion and decided to go ahead with the reorganisation anyway. This illustrates the obvious constitutional consequence that governments and the UK Parliament are not obliged to accept the outcome of a local referendum.

However, the question posed by this example is whether the statutory ‘general power of competence’ to consult about something that is not in their competence for a local council in England is compatible with a legal conclusion that the Scotland Act 1998 disbars the Scottish Parliament from doing the same under a ‘reserved powers’ model. It would be a constitutional and legal travesty if a council in England was found to have more powers to consult than the Scottish Parliament.
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michaelpicken on October 5, 2022 at 5:16 pm
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with apologies for the incorrect use of an apostrophe above …

Furthermore in March 1994 the Strathclyde Regional Council organised a consultative referendum on whether public ownership of local water and sewage supplies should be ended and such services be privatised. The Regional Council had no competence to determine water supply issues, that service having been removed from the responsibilities of the council previously. They also had no general power of competence and no reserved powers models of devolution existed at that time anywhere in the UK.

No one argued that the Council did not have the power to consult local populations, no legal action to prevent the referendum was taken and the referendum went ahead. The result was a 97.2% vote against privatisation. The council area only covered about one third of the population of Scotland. Yet despite this the UK government felt obliged to take note of the referendum and decided not to privatise all water supplies across the whole of Scotland (and it is still publicly owned unlike the equivalent in England). In this instance the local authority had no relevant powers either to organise the referendum or to operate water and sewage supplies; but no-one tried to stop the referendum in law and it marked a significant milestone on processes to consult the population on significant matters of public policy. That the UK government and parliament chose to take note of the referendum illustrates that it has that option but that it is not mandatory (as the Somerset case illustrates).

Again it would be a constitutional and legal travesty if the Supreme Court decided that the Strathclyde Regional Council, created by a Westminster statute with only specific powers granted it, had more legal power to consult its population despite the uncodified nature of the process, than the current Scottish Parliament.
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Alastair Clyde on October 13, 2022 at 11:32 am
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Lord Cooper’s obiter remark in MacCormick is not sound. It never formed part of his reasoning in that judgment (and was consequently not appealed) and it has been superseded by more recent decisions of the House of Lords (BRB v Pickin [1974] AC 765) and the Supreme Court – see in particular Cherry and Others v Advocate General for Scotland [2019] UKSC 41 (at para 41) and the UNCRC Bill case [2021] UKSC 42 (at para 50).
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John Hartigan on October 13, 2022 at 4:11 pm
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Many of these issues are addressed in this response to the SNP submission. Food for thought for those advocating a right of secession or the dismissal of Parliamentary sovereignty as applying to Scotland.

https://www.gov.uk/government/publications/supreme-court-case-no-20220098-written-submission/written-response-on-behalf-of-hm-advocate-general-for-scotland-to-snp-intervention-uksc-20220098
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A Second Scottish Independence Referendum within the UK Supreme Courtroom – Verfassungsblog - Isurance Club on October 17, 2022 at 1:35 am
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[…] A current argument has been made that, even when the Scottish Parliament is discovered to lack the competence to go a referendum Invoice, there may be nonetheless a powerful case that the Supreme Courtroom may discover the UK Authorities’s conduct to be unconstitutional (if not unlawful), in stopping the implementation of earlier SNP manifesto commitments to instigate an independence referendum. This argument attracts an analogy with judgements of the Canadian Supreme Courtroom (SCC), specifically the 1981 Decision to Amend the Structure, through which the Canadian federal authorities tried to patriate the Canadian Structure and not using a majority of provinces’ consent. The SCC dominated this lawful, however unconstitutional as a result of it violated the constitutional conference that consent can be sought. The SCC’s judgment inspired additional political negotiations which ultimately secured the vast majority of provinces’ consent. On this means, it has been argued that UKSC ‘can play an vital function in trying to encourage civilised negotiations.’ […]