Scottish independence: The Supreme Court route to another referendum

Holyrood journalist Margaret Taylor looks the at possible legal route to indyref2

The Supreme Court will sit at the beginning of October to consider a question posed by Lord Advocate Dorothy Bain QC on whether the Scottish Government can hold another independence referendum without Westminster’s say-so.

What is the case about?

First Minister Nicola Sturgeon announced in June that she plans to hold a second independence referendum in October next year.

While it is widely accepted that she can only do that if the UK Government grants a Section 30 order – a piece of legislation that effectively temporarily transfers powers from Westminster to Holyrood – Prime Minister Boris Johnson has repeatedly refused to grant one. Leadership contenders Rishi Sunak and Liz Truss have similarly said they are opposed to another referendum.

Sturgeon has said that if a Section 30 Order is not granted the Scottish Government will legislate to hold a vote without one.

In her advice to government, Bain, who is both Scotland’s chief prosecutor and the Scottish Government’s legal adviser, said it is not clear whether it would be lawful for Sturgeon to proceed with that plan. She has therefore asked the UK Supreme Court to consider the question as a matter of constitutional law.

Lord Advocate Dorothy Bain

Who are the parties involved?

Bain will be representing the Scottish Government when the matter goes before the Supreme Court justices, with her written case posing the question: “Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be 'Should Scotland be an independent country?' relate to reserved matters?”

The UK Government, which is represented by the Advocate General for Scotland Lord Stewart, had attempted to have the matter thrown out, arguing that the court should consider only whether it should accept Bain’s reference rather than looking at the substance of the question itself.

The court rejected that bid, saying that “in the interests of justice” it should “hear argument on both issues at a single hearing”.

On 10 August the UK Government published Lord Stewart's written case to the court. His argument is that the court cannot look at Bain’s question because the Draft Scottish Independence Bill published by First Minister Nicola Sturgeon in July has not yet been passed. The 1998 Scotland Act, he said, states that the Supreme Court can only be asked to intervene in the period between a law being passed by parliament and receiving royal assent.

Lord Stewart, whose legal team includes English silk Sir James Eadie QC and Scottish silk David Johnston QC, has also made the case that it is clear that any referendum on independence would be reserved.

The SNP has also applied to participate in the case as an intervener, with the party’s business convener Kirsten Oswald noting that its arguments are “intended to support and complement the arguments for the bill being within the Scottish Parliament’s competence”.

The party, which is being represented by Claire Mitchell QC, whose other high-profile cases have included acting for Catalonian politician Clara Ponsati when she successfully fought extradition to Spain, published its application this week.

What are people saying about the case?

Parties that are opposed to a second independence referendum going ahead have given a mixed response to the court case.

Both Scottish Labour and the Scottish Conservatives said it is wrong to be considering a referendum when people are facing a cost of living crisis, although the former noted that the Lord Advocate’s case would at least bring clarity to the matter of whether the vote can actually go ahead.

Tory constitution spokesman Donald Cameron said the case was about Nicola Sturgeon “typically creating constitutional grievances to deflect from her own record of failure and divide us all over again”.

His Labour counterpart Sarah Boyack said it is a “complete dereliction of duty” to hold a referendum when “bills are soaring, the NHS is in crisis, and people can’t afford to put food on the table”. However, she added that it is “for the Supreme Court to consider these issues and provide an answer once and for all about where these powers lie”.

The Lord Advocate’s position is that knowing whether Scotland can hold another independence referendum without the clearance of Westminster is of “fundamental constitutional and public importance” and, as such, is a “question of law”, not politics.

Opposition parties made hay out of Bain saying she did not have the “necessary degree of confidence” to okay the SNP plan herself. However, the Dean of the Faculty of Advocates, Roddy Dunlop QC, said her position makes sense in the context of Bain’s role as a government legal adviser who remains independent of government. Her written case is, he wrote in an opinion piece for Holyrood, a “remarkable exercise in restrained neutrality”.

What happens next?

The parties will find out which justices are going to oversee the case and whether the provisional hearing dates of 11 and 12 October will be confirmed.

Ordinarily the court, which has 12 justices in total, will sit with a panel of five or seven judges so that decisions are never tied.

It is all but guaranteed that court president Lord Reed and deputy president Lord Hodge, both of whom are Scots lawyers, will be on the panel for the indyref case but the court is yet to confirm how many judges will hear the matter.

In matters thought to be of particular constitutional significance, such as the 2019 prorogation of parliament cases, one of which was led by SNP MP Joanna Cherry and was initially heard in the Court of Session, all but one of the court’s justices sat on the bench. They ruled that Prime Minister Boris Johnson had acted unlawfully in suspending parliament in the weeks leading up to Brexit.