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Scottish independence: What is the Supreme Court deciding?

President of the Supreme Court Lord Reed will decide whether to hear the Scottish Government's argument | PA Images

Scottish independence: What is the Supreme Court deciding?

Lord Advocate Dorothy Bain is, at the First Minister’s request, taking the Scottish Government’s proposed Scottish Independence Referendum Bill to the Supreme Court.

Nicola Sturgeon is hoping this will provide “legal clarity and legal fact” about whether the Scottish Parliament can legislate for a fresh vote next year.

But what is her government’s argument, will the court hear it and where could a potential ruling leave us?

So, what happens first?

The first step is for Bain to file the paperwork with the Supreme Court. It confirmed yesterday it has received her referral and that has now gone to the president of the Supreme Court, Lord Reed.

Lord Reed (incidentally a Scot) will take a decision on whether there are "preliminary matters" to be addressed, when the case will be heard and how many justices will hear it.

The Scotland Act allows Bain to submit a reference to consider whether devolved governments “have acted or propose to act within their powers”.

Previous cases have been refused by the Supreme Court because they were on hypothetical situations rather than actions of the devolved governments. Specifically, in 2020 it refused a reference from Northern Ireland’s attorney general regarding a social security issue because “in order for a devolution issue to arise… it must be shown that an act has been carried out or a function has been discharged by a Northern Ireland Minister or a Northern Ireland department.”

Likewise, the Court of Session ruled a case brought by independence campaigner Martin Keatings on the subject of Scottish Parliament competence was "hypothetical and premature" following the first hearing.

Therefore the Supreme Court will need to decide whether the Scottish Government publishing the bill is sufficient action. Importantly, the government has not formally lodged the bill with the Scottish Parliament so it hasn’t officially proposed it either.

This all might seem like dancing on the head of a pin, but legal definitions must be strictly interpreted.

But if the court does decide the publishing the bill on its website meets the criteria of proposing to act, the case will be heard. And then the legal arguments begin…

What is the Scottish Government’s stance?

Essentially, the Scottish Government will argue that because a vote held on 19 October 2023 would be consultative – and therefore have no legal effect – the Scottish Independence Referendum Bill would not trespass into reserved areas.

They will argue the referendum will merely be to measure the opinion of people of Scotland, but actual independence itself will require Westminster to legislate.

Makes sense – so what’s the disagreement?

While it is technically true that a Yes vote in a future independence referendum would not automatically lead to Scottish independence, the UK Government will argue that a referendum is being used as a tool to further ambitions in a reserved area.

The question for justices to resolve will be whether the end game for the Scottish Government (i.e. independence) should be considered as part of the bill regardless of its official legal effect, or whether the fact it is advisory would be enough to claim the Scottish Government has not acted on a reserved matter.

David Torrance – former journalist and now House of Commons researcher – has highlighted the Scotland Act says legislation can relate to a reserved matter if its “effect in all the circumstances” would touch on a reserved area.

“Looked at from this perspective, the purpose of an ‘advisory’ or ‘consultative’ referendum would remain that of achieving independence, and it would therefore ‘relate to’ a reserved matter,” Torrance says.

Basically, it depends on how the Supreme Court would define ‘effect’ – it could refer to a strictly legal effect, in which case a consultative referendum would have none, or it could refer to wider political effects, and a Yes vote would certainly have many of those.

It's of course worth noting the 2014 referendum was also only advisory, but the provision of a Section 30 order meant the question of whether it trespassed into reserved areas or not was never properly addressed.

What happens if the Supreme Court says the bill is outwith the competence of the Scottish Parliament?

There’s nothing MSPs can do.

Which is why Nicola Sturgeon has said in that instance, the SNP would fight the next general election on the sole issue of Scottish independence and hope to secure more than 50 per cent of the vote (though it seems that threshold is not universally agreed within the SNP…)

It is not clear how exactly the SNP securing more than half of Scotland’s votes would lead to independence. It appears the gamble is that would put enough pressure on the next UK government to provide a Section 30 order and thus allow for a legal referendum.

And what happens if the Supreme Court greenlights the government’s bill?

Then Holyrood will pass the legislation and a referendum will be held. But that’s not the end of the argument – the Scottish Conservatives, for example, have already dubbed a consultative referendum a ‘pretendy ref’.

This could have the effect of putting some voters, particularly on the pro-Unionist side, off casting a ballot. And a low turnout could, in theory, put question marks over the legitimacy of any result.

But we are a long way off of that point and no doubt much will have changed by then – if we get there.

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