UK court to decide UK future

Supreme Court will consider whether Scotland can hold independence referendum

The UK Supreme Court is to consider whether Scotland’s first minister Nicola Sturgeon has the power to hold a referendum on Scottish independence.

We all predicted that, if the Scottish National Party did well enough in last year’s elections to the Scottish parliament, the Supreme Court might may soon become the focus of intense public attention once again. “At stake,” I wrote, “will be nothing less than the future of the United Kingdom.” What none of us foresaw was quite how quickly this would happen.

Nicola Sturgeon addressing the Scottish parliament yesterday

Unlike its Westminster progenitor, the Scottish parliament has limited powers. Any act of the Scottish parliament that “relates to” the “union of the Kingdoms of Scotland and England” is outside its legislative competence. That’s one of a number of matters that were reserved to UK legislators by the Scotland Act 1998.

How then was it possible for Scotland to hold a referendum in 2014? You may recall the vote was 55 to 45 per cent against independence.

The answer is to be found in section 30 of the Scotland Act, which effectively allows the UK government to modify functions that were reserved to Westminster. Ministers simply made a temporary order allowing Scotland to vote in 2014.

Sturgeon told Boris Johnson yesterday that she would like another one of those orders. In her letter to the prime minister, she said:

I continue to stand ready to negotiate the terms of a section 30 order with you, as we did with the UK government in 2012, to respect the mandate given by the people of Scotland. 

It always seemed unlikely that the UK government would agree. For that reason, it was thought that the Scottish government would pass the legislation to hold a referendum anyway and dare the attorney general to challenge it in the UK Supreme Court. The attorney general, Suella Braverman QC, is the UK government’s senior law officer.

However, Sturgeon has decided to speed up the process. Yesterday, she published a draft of her Scottish Independence Referendum Bill and announced that the lord advocate had agreed to make a reference to the Supreme Court. The lord advocate, Dorothy Bain QC, is the Scottish government’s senior law officer.

What is the court being asked to do?

Schedule 6 of the Scotland Act deals with what are called “devolution issues”. The first of these, in paragraph 1, is “whether an act of the Scottish parliament… is within the legislative competence of the parliament”.

If the Scottish parliament had already passed the legislation needed to hold a second independence referendum, the attorney general could have used this provision to challenge it. Paragraph 34 of schedule 6 allows the attorney general to “refer to the Supreme Court any devolution issue which is not the subject of proceedings”.

But paragraph 1 is drafted more broadly and includes

any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this act about reserved matters.

And paragraph 34 also allows the lord advocate to refer devolution issues to the court.

It could be argued that the question of whether the Scottish parliament can lawfully approve Sturgeon’s referendum bill is currently hypothetical. But there seems little point in waiting for the bill to be passed before deciding whether it would be effective. The legislation seems broad enough to allow the question to be considered at this stage.

What the Supreme Court has said so far

Yesterday, the court confirmed that it had received a reference by the lord advocate under its devolution jurisdiction. The court said:

Under devolution legislation enacted by the UK parliament, the Supreme Court may decide devolution issues, such as whether the devolved executive and legislative authorities in Scotland, Wales and Northern Ireland have acted or propose to act within their powers. Devolution cases can reach the Supreme Court through a reference from someone who can exercise relevant statutory power, such as — in this instance — the lord advocate.

This reference does not need to be granted permission by the court for it to proceed.

The first step will be for the reference to be referred to the president of the Supreme Court, the right hon the Lord Reed of Allermuir for directions. He will decide whether there are preliminary matters to be addressed, when the case will be listed (heard), how many justices will consider the reference, and which justices will sit on the bench.

At this stage, we cannot confirm when the case will be heard.

The arguments

The lord advocate has not published her reference to the Supreme Court. At this stage, the document may be quite short. She will argue that the Scottish parliament has the power to legislate for a consultative referendum.

However, if that had been the law then there would have been no need for a section 30 order ahead of the 2014 referendum. It is widely believed that, without such an order, no referendum can be held. Indeed, Sturgeon seemed to accept this in her statement yesterday:

It is, of course, possible that the Supreme Court will decide that the Scottish parliament does not have power to legislate for even a consultative referendum.

Obviously, that would not be the clarity we hope for. But if that is what the law establishing this parliament really means, it is better to have that clarity sooner rather than later.

It’s thought likely the Supreme Court will rule the the legislation does not permit a referendum without the agreement of the UK government. There is no provision for any further appeal.

What happens next?

Sturgeon told the Scottish parliament yesterday:

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, and if the UK government continues to deny a section 30 order, my party will fight the UK general election on this single question: should Scotland be an independent country?

Sturgeon made it clear that if the justices ruled against her it would be “the fault of the Westminster legislation, not of the court”.

The one argument she would find hard to deploy is that she had been blocked by English judges. Although there are normally eight justices from England, one from Northern Ireland and one from Wales, Reed and his deputy Lord Hodge are both from Scotland.