After Nicola Sturgeon announced plans to hold a referendum on Scottish independence, the Supreme Court will rule. What are the most important arguments that will be heard in court? Will they decide the fate for indyref2 once an all?
In other words, it is necessary to end the impasse between the UK and Scottish governments regarding independence.
First minister, who wants to hold a new vote, has a pro independence majority at Holyrood. He has even named a date. However, successive prime ministers insist that “now is not a good time”.
This means that a transfer power similar to the one underpinning the 2014 vote is unlikely. Holyrood’s minds are now turning to Holyrood about whether MSPs could pass a referendum bill with Westminster’s blessing.
Any bill that MSPs pass could be challenged by the UK government as being outside Holyrood’s power. Ms Sturgeon therefore chose to cut short this argument.
The Lord Advocate, her government’s chief legal advisor, has used her power to refer the matter to the Supreme Court to ensure that the judges are able to settle the matter once and for all.
This London court is where constitutional questions regarding the power of the UK’s Parliaments are discussed.
It is helpful to note that the issue of MSPs legislating in favor of a referendum has been around for many years, without ever being settled. The core arguments are well-known.
According to the Scotland Act, it is beyond Holyrood’s jurisdiction to make provisions that “relate to reserved subjects”. The reserved matter here being the Union of the Kingdoms of Scotland or England.
Although it may seem absurd to ask whether a bill for independence relates to the Union, It could not be! There are many technical details to be aware of.
One school of thought holds that simply holding a referendum to hear people’s opinions about independence wouldn’t in itself cause the disintegration of the union.
Nicola Sturgeon argued Tuesday that the referendum would “consultative, and not self-executing”. She explained that this meant that a majority of yes votes in this referendum would not make Scotland independent.
To make independence a reality, legislation would have to be passed at Westminster or Holyrood. However, technically speaking, the act to ask the electorate about it, is an independent issue.
Ms. Sturgeon cites the Brexit referendum as an example. The UK did not leave the EU in one go, but it sparked years of negotiations and legislative wrangling that led to a gradual disintegration.
Others have also pointed out the 2017 Brexit court case brought forward by Gina Miller, where judges stated that the 2016 referendum had not changed the law in such a way as to allow ministers to withdraw the UK without any legislation.
They claimed that the referendum’s effect was “of great political importance” and “in no manner devoid of effects”, but that it was political and not legal unless and until parliament acts on it.
This argument is acknowledged in the first paragraph, which was published with Ms Sturgeon’s statement. It clearly states that the bill’s purpose is to “assess the views of Scotland citizens on the question of independence”.
This is exactly what Ms. Sturgeon meant when she said it would be a “consultative vote” – however, she claims the same was true for those in 2014 and 2016.
Although the Scottish government might make arguments about Scots’ right to self-determination under different statutes, the main point about competence is lost.
The UK government maintains that the constitution is explicitly reserved.
Legally, this is a loose language because the UK doesn’t have a written constitution. The Scotland Act reserves the Union.
It is however the main point UK law officers will pursue: that Westminster is the sovereign Parliament, and that it has reserved certain powers in this area. The Scotland Act limits Holyrood’s powers.
These arguments were actually made in response to a citizen challenge to the Court of Session 2021. Although the case was thrown out because it was “premature”, it provided some insight into some possible arguments.
The UK government side argued, by law, that in order to “relate” to a reserved matter, a Holyrood Bill must have “more that a loose or consequential relationship” with it. A referendum bill would certainly meet this requirement.
They stated that legislation authorizing a referendum would have legal effects but also “seek to create momentum towards independence” and the dissolution of the UK.
They also claimed that Scotland’s departure from the UK would have an impact on the power of the UK parliament, something MSPs are not supposed to do.
They also cited statements made during the passage in 1998 of the Scotland Act – including Donald Dewar, the future Scottish Secretary, who claimed that “a referendum purportedly to be ultra vires [beyond Holyrood’s powers]” is itself ultra vires.
It would be foolish for us to speculate on how judges will evaluate these arguments. After all, there has been academic chin-stroking about their views of the Scotland Act and devolved competency in other cases.
Lord Reed, the current president of court, and Lord Hodge his deputy are both former Court of Session judges. They are well-versed in devolution and will emphasize the importance of impartiality and independence of the judiciary.
The outcome of the case cannot be guaranteed to resolve the matter, regardless of whether there was a vote in Oct 2023.
They are unlikely to leave the country if they lose the Scottish election. They have even threatened to double down and treat the next general elections as a “de facto” referendum.
Equally, if the pro-union side loses, they could still argue that this isn’t the right time to hold a referendum. They could say that even though it would be a tremendous burden, just because you have the right to vote does not mean you should.
This is the crux of the matter. Ms Sturgeon wants to reach an agreement with the UK government.
A gold-standard process in which both sides participate in good faith is the best way to achieve her goal of an internationally recognized and legitimate referendum that can deliver independence.
The search for a political solution will continue regardless of the outcome in court.
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