The UK Supreme Court will give judgment this morning on a reference by the lord advocate relating to the proposed second independence referendum for Scotland — indyref2, as it’s called.
Dorothy Bain KC asked the court to decide whether a question about independence in a draft Scottish referendum bill relates to “reserved matters” and is therefore outside the competence of the Scottish parliament.
But the first issue for the Supreme Court to decide is whether it can accept the lord advocate’s reference — whether it has jurisdiction to consider it. If the court has no jurisdiction, it cannot answer the questions she has asked.
That issue was contested at the hearing last month. Lord Stewart of Dirleton KC, who represents the UK government as advocate general for Scotland, argued that the power to make a reference to the Supreme Court applied only to legislation that had already been passed by the Scottish parliament, not to a bill that had merely been published in draft.
The hearing
When the hearing opened on 11 October, Lord Reed, the court’s president, said the five justices had more than 8,000 pages of written material to consider. It was therefore “likely to be some months” before they would be able to deliver their judgment. The fact that it has taken them just six weeks to do so may be a clue to its outcome.
In a preview of the case I published here on 18 August, I said:
Because the lord advocate has backed both sides in her written arguments, it might be thought she cannot lose. But that’s not so. If the Supreme Court agrees with the advocate general and decides it has no jurisdiction to hear the lord advocate’s reference — or simply declines to do as an exercise of discretion — the court will not even answer her question.
But that should not come as a surprise. As the advocate general says, courts don’t normally give legal advice. That’s the job of lawyers — like the lord advocate.
Two days ago, Kenneth A Armstrong, professor of European Law at the University of Cambridge, wrote this:
In an earlier blog coinciding with the making of the lord advocate’s reference, I speculated that the UK Supreme Court might have cause to ponder whether it had jurisdiction to entertain a reference.
In advance of the [court’s] judgment, in this post I suggest that the lord advocate may not get the legal clarity she seeks because the [court] decides either to exercise a discretion to refuse the reference, or — and consistent with the scheme of the Scotland Act — it simply finds as a matter of statutory interpretation that it does not have the jurisdiction to offer advice at a pre-legislative stage.
Indeed, Armstrong thought it should do just that:
It may be a cause of political frustration for Scotland’s first minister — it may even provoke the resignation of the lord advocate — but my conclusion is that the Supreme Court ought to refuse the reference and ought to do so, not as a matter of judicial discretion, but as an interpretation of the legislative scheme of the Scotland Act and the underlying relationship between courts and politicians in the making of devolved legislation.
If it turns out today that the justices have reached the same conclusion, they will not have to consider the detailed arguments put by both sides. That may explain why the court has been able to produce its judgment relatively quickly.
But where would that leave the lord advocate? Still unsure of whether the proposed bill relates to reserved matters and is therefore beyond the powers of the Scottish parliament? Or has the hearing helped her decide what advice to give Nicola Sturgeon, the first minister?
What happens next?
Sturgeon herself is well aware that this process may prove inconclusive. She knows that she may not get the clearance she needs to legislate.
Sturgeon told the Scottish parliament in June:
If it transpires that there is no lawful way for this parliament to give the people of Scotland the choice of independence in a referendum… my party will fight the UK general election on this single question: should Scotland be an independent country?
That must surely be the most likely outcome. Scottish independence is, above all, a matter of politics — not law.
Update 10am: I was wrong in predicting that the court would duck the question. But I was right in thinking that the court would find that the Scottish parliament had no power to pass legislation allowing for an independence referendum.
The full judgment is here and there is also a summary.