Scottish independence: Supreme Court to rule on referendum

Rather than introduce a Holyrood referendum Bill only to have it bogged down in legal challenges, she said the Court would be asked in advance for a ruling on the plan.

If the Court agreed a devolved vote could go ahead, she said the question put to the people would be the same as in 2014: “Should Scotland be an independent country?”.

But if the Court ruled against her proceeding without Westminster’s consent, Ms Sturgeon said that would prove the UK was inherently unequal and she would fight the next general election, expected in 2024, as a “de facto referendum” on the “single issue” of independence.

If a majority of votes cast were for the SNP, the Scottish Government would regard it as a mandate to open negotiations with London about moving straight to independence. 

This is the so-called “Plan B” advocated by some of her own SNP MPs, but which Ms Sturgeon and her party conference previously rejected, not least because the UK Government could simply refuse to recognise the election as a referendum, invalidating it in the eyes of the international community. 

Read more: John Swinney: SNP winning majority of seats in general election would be mandate for independence

Ms Sturgeon said she wanted a referendum that was “indisputably lawful” and constitutional, and dismissed the idea of a wildcat vote as pointless and ineffective.

She said her preference remained for the Prime Minister to recognise democracy and the mandate she won at last year’s Holyrood election and cooperate on a referendum.

But she could not “allow Scottish democracy to become a prisoner” of Mr Johnson or any Prime Minister.

She wrote to Mr Johnson asking him to repeat the process used for the 2014 referendum, and temporarily transfer extra powers to Holyrood using a so-called Section 30 order.

She said she felt “deep regret” that she had been forced into launching legal action, when democracy should have led to an agreement between Edinburgh and London. 

Opposition parties accused of her wasting time and money on a constitutional obsession, noting her statement came just hours after official statistics showed worsening A&E waiting times, a record low in a key cancer treatment benchmark, and sex crimes at a 50-year high.

Legal experts also warned Ms Sturgeon was likely to lose in Court, as the Union is expressly reserved to Westminster in the Scotland Act which underpins devolution.

The UK Government also restated its position that “now is not the time” for another referendum and it was clear that the constitution was not within Holyrood’s powers.

Mr Johnson said he would study Ms Sturgeon’s plan “very carefully and respond properly”, but added: “The focus of the country should be building a stronger economy”. 

Read more: Iain Macwhirter: See you in court, but we know where it will end

Ms Sturgeon, who had been under growing pressure from the Yes movement to deliver progress on Indyref2, set out her “route map” in a statement to MSPs yesterday.

She said her Government’s most senior law officer, the Lord Advocate Dorothy Bain QC, had already started the process of seeking a view from the Supreme Court and that messengers-at-arms were currently serving papers on the UK Government’s law officers. 

She also published a five-page draft Scottish Independence Referendum Bill – her second such draft Bill in 15 months – on the Scottish Government’s website, but crucially did not introduce it to parliament.

She said that if the Supreme Court agreed the Bill was within Holyrood’s powers, she would then introduce it and quickly pass it through Holyrood with the support of the Greens.

The Supreme Court last night said it would proceed with the case after a referral by the Lord Advocate under paragraph 34 of Schedule 6 to the Scotland Act 1998, which relates to the Court’s devolution jurisdiction.

The President of the Supreme Court, the Scottish justice Lord Reed, will now decide if there are any “preliminary matters” to be addressed, when the case will be heard, how many justices will consider the reference, and which justices would sit on the bench.

The court normally has 12 justices to draw on, but there are currently two vacancies.
In theory, the court could query the admissibility of the case as part of the preliminary matters, but is thought more likely to hold a full public hearing on such a major issue.

The UK Government is expected to participate, with a hearing expected in the autumn. 

Ms Sturgeon said she hoped the court would “deliver clarity and legal certainty in a timely manner”.

Read more: Nicola Sturgeon tells Boris Johnson says she feels 'deep regret' over Indyref2 legal action

She said: “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.

“Because what it will clarify is this: any notion of the UK as a voluntary union of nations is a fiction. Any suggestion that the UK is a partnership of equals is false.

“There would be few stronger or more powerful arguments for independence than that. And it would not be the end of the matter. Far from it. 

“Democracy demands that people must have their say. I want the process set in train today to lead to a lawful, constitutional referendum and for that to take place on 19 October 2023.

“But if the law says that is not possible, the general election will be a ‘de facto’ referendum. Either way, the people of Scotland will have their say.

“My determination is to secure a process that allows the people of Scotland - whether yes, no, or yet to be decided - to express their views in a legal, constitutional referendum, so that the majority view can be established fairly and democratically.”

Read more: Nicola Sturgeon defends back-up 'de facto referendum' plans

Former Supreme Court justice Lord Sumption said: “It’s actually a very difficult course that Nicola Sturgeon has charted for herself. To have a referendum you need legislation. She accepts that and she wants to put a Bill through the Scottish Parliament.

“The problem is that constitutional relationship between England and Scotland is a reserved matter under the Scotland Act, which means that the Scottish Parliament has no power to legislate for anything that affects the constitutional relationship between two parts of the United Kingdom.”

A recent Scottish case also suggests the Court may be reluctant to rule on a draft Bill, as Bills can be amended as they go through parliament.

Independence campaigner Martin Keatings asked the Court of Session last year to rule on whether Holyrood had the power to hold Indyref2 without the consent of the UK Government.

He lost after being told his case was “hypothetical and premature”.

Scotland’s most senior judge, the Lord President Lord Carloway, ruled: “A draft Bill has no legal status. If introduced, a Bill may or may not be passed by the Parliament, depending upon that institution’s composition. 

“If a Bill is introduced, it may or may not be in the form which is contained in the draft. No matter what its initial form, it may be amended.” 

Scottish Tory leader Douglas Ross said the FM was turning Holyrood into a “Do-Nothing Parliament” that neglected the people’s real priorities by obsessing over another referendum.

He said: “We won’t play Nicola Sturgeon’s games. We won’t take part in a pretend poll when there’s real work to be done. Real work on the global cost-of-living crisis. Real work to invest in public services. Real work to rebuild our economy.” 

Scottish Labour Leader Anas Sarwar accused Ms Sturgeon of trying to make herself relevant at the general election.

He said: “The pandemic Nicola that said she wanted pull us through is gone, and the partisan Nicola Sturgeon, that wants to divide our country, is back – pursuing a referendum that two thirds of Scots don’t want now.”

Scottish Liberal Democrat leader Alex Cole-Hamilton said: “Here we are again and what an appalling waste of energy and focus this is. The First Minister is putting disquiet in her party ahead the needs of this country.”

Read more: Scottish Independence polls: How has support for Yes and No changed in 2022?

Alba party leader Alex Salmond said: “We need a united movement and grassroots campaign to deliver success.

“In particular, voices outwith Government will be needed so that the cause of independence is not weighed down by the day-to-day troubles of the SNP/Green coalition. 

“We should not give up on bending Boris Johnson to the people’s will on a section 30 Order. There has never been a weaker UK Prime Minister.

“But that will require a concerted campaign of popular, parliamentary and diplomatic initiatives. And it is urgency which is required to stop Westminster taking Scotland to the cleaners on a daily basis. 

“The question of Scottish sovereignty cannot simply be left to the UK Supreme Court. We need to be prepared with a popular campaign.”

Scottish Greens co-leader Lorna Slater said: “I am confident that when given the choice the people will choose to take our future in our own hands.”

Recent polls show support for the Union at 52 per cent among decided voters, with 48% for independence.