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by Margaret Taylor
21 July 2022
Supreme Court sets October date to consider Lord Advocate's referendum query

Supreme Court sets October date to consider Lord Advocate's referendum query

The UK Supreme Court has set a date in early October to consider whether the Scottish Government can lawfully legislate for a second independence referendum without the say-so of Westminster.

When First Minister Nicola Sturgeon announced last month that she plans to hold a referendum next year, she said government legal adviser Dorothy Bain QC – the Lord Advocate – had asked the Supreme Court to rule on whether it would be lawful to press ahead without a Section 30 Order from the UK Government.

A Section 30 Order, which was granted ahead of the 2014 vote, temporarily transfers powers to Holyrood that it does not normally have. As constitutional matters are reserved to Westminster, it is widely considered that such an order would be required for another referendum to be lawful.  

In her application to the Supreme Court Bain wrote that she did not have the “necessary degree of confidence” that Holyrood legislation alone would “be within devolved competence”. The court will sit on 11 and 12 October to consider that question. 

The UK Government, which has refused to grant a Section 30 Order and is opposed to a referendum going ahead under any circumstances, had attempted to have the matter thrown out without a full hearing.

Last week the Advocate General for Scotland Lord Stewart, whose role is to advise the UK Government on matters of Scots law, asked the Supreme Court to consider only whether it would be appropriate for it to accept Bain’s reference rather than looking at the substance of the question itself.

However, the court said on Monday that it must consider the Advocate General’s position as well as how it should answer Bain’s query if it decided it was appropriate to accept it.

“To answer these questions, the court will need to consider the circumstances giving rise to the reference and the substance of the Lord Advocate’s question,” it said.

“The court therefore decided that it should hear argument on both issues at a single hearing in the interests of justice and the efficient disposal of the proceedings.”

At this stage it is not known which justices will preside over the case, although it is almost certain that court president Lord Reed and deputy president Lord Hodge, both of whom are qualified in Scots law, will be on the panel.

Usually the Supreme Court bench is made up of five or seven judges, although in the 2019 case regarding whether Prime Minister Boris Johnson could lawfully prorogue parliament the case was seen of such significance that 11 of its 12 judges sat. The panel is always made up of an odd number of justices to ensure the court’s decision is never tied.

Full details of the panel that will oversee the Lord Advocate’s referral will be announced at the end of September.

The Scottish Government's constitution secretary Angus Robertson declined to comment on the hearing, noting that it would be "inappropriate" for anyone in government to talk about the case while it is live. 

“The Supreme Court’s confirmation that a hearing on the Lord Advocate’s reference has been listed for 11 and 12 October 2022 is welcome news," he said.

"The Lord Advocate’s written case has been filed with the Supreme Court and will be published in due course.

“During this period, it would be inappropriate for the Scottish Government to comment any further as the matter is before the court.”

A UK Government spokesperson said: "We are grateful to the Supreme Court for setting a date for a hearing. We are preparing our written case on the preliminary points we have noted, as well as the substantive issue, and will submit in accordance with the timetable set by the court.

“On the question of legislative competence, the UK Government’s clear view remains that a bill legislating for a referendum on independence would be outside the legislative competence of the Scottish Parliament.”

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