Several verdicts at Supreme Court's disposal in indyref2 case

The UK Supreme Court could give one of several rulings when it hands down its judgment in the Lord Advocate’s indyref2 case tomorrow.

Five justices heard the matter during a two-day sitting last month, after being asked by Lord Advocate Dorothy Bain KC to consider whether the Scottish Government can lawfully hold a second independence referendum without Westminster’s say-so.

The Scottish Parliament would have to pass legislation to allow a vote to take place, but Bain argued that the law is unclear on whether it has the right to do so or whether that would be a purely reserved matter. That was the point she wanted the Supreme Court to clarify.

The UK Government argued that the terms of the Scotland Act mean the Supreme Court can only consider bills that have already been passed and so Bain’s question should be thrown out without consideration.

The options

According to Roddy Dunlop KC, dean of the Faculty of Advocates, the five Supreme Court justices who oversaw the matter have four separate rulings at their disposal:

• that the UK Government is right and they cannot even consider the case;
• that Holyrood does have the competence to bring a bill forward;
• that it is a reserved matter and so they do not;
• or that the case is premature but they still have a view on whether it is up to Holyrood or Westminster to legislate for a referendum.

“It would be open to the court to say that the application is premature but then go on to express a view – obiter – as to whether the bill relates to a reserved matter,” he wrote on Twitter.

“An obiter view is one that does not strictly form part of the judgment and thus would not be binding, though it would be highly persuasive.”

Writing in The National, legal academic Andrew Tickell said that if the Supreme Court does agree with the UK Government’s position that it cannot consider Bain’s case because it does not relate to an existing bill then it will be “back to square one” for the Scottish Government, which wants the referendum to go ahead in October next year.

“If this comes to pass, there are basically three options open to the Scottish Government to get a referendum bill back before Holyrood,” he said.

“Either the First Minister would need to amend the ministerial code for a bill to be brought forward, the Lord Advocate would need to change her position on certifying the bill as within competence, or a backbench MSP could lodge a bill along the lines the Scottish Government has already drafted. Then it all starts all over again.”

He agreed with Dunlop that the court might take the apparently “illogical” step of offering an opinion on Bain’s question without accepting she had the legal right to ask it.

“The Supreme Court might decide the Lord Advocate technically doesn’t have the power to refer the bill to them for decision, but nevertheless decide to give a decision on the merits anyway,” he said.

The arguments

During last month’s hearing, Bain argued that, while her reference relates to a bill that has not yet been introduced, the justices did have the jurisdiction to hear the matter because “the circumstances of the present case are highly exceptional”.

She said a “concrete legal issue has crystalised” in terms of whether the Scottish Government has the right to introduce a referendum bill and so it is “not premature” to ask the court to decide whether such matters are considered devolved or reserved from a legal standpoint.

“The answer will have a concrete effect,” she said. “It will determine whether the draft bill is introduced to parliament or not.”

Sir James Eadie KC, who represented the UK Government on the instruction of Advocate General for Scotland Lord Stewart, said Bain’s position was “uncontrolled and surprising” and argued that the fact Bain could not advise definitively that introducing a bill would be within the legislative competence of the Scottish Parliament showed that the case should be dismissed.

The case has implications for each devolved nation of the UK and the panel overseeing the case was made up of representatives from all four jurisdictions: Supreme Court president Lord Reed, who is qualified in Scots law; Lord Sales and Lady Rose, who are experts in English law; Lord Lloyd-Jones, who has a background in the Welsh court system; and Lord Stephens, who was previously a judge in Northern Ireland.

They will deliver their judgment at 9.45am on Wednesday.