Scottish independence: Court date next week for referendum case ruling

First Minister Nicola Sturgeon plans to hold an independence referendum on October 19 next year and believes she has a mandate to do so after the SNP won last year's Holyrood elections after standing on a manifesto promise to hold a new vote.

Her first preference is for a referendum to take place with the agreement of the UK Government following the same process which paved the way for the vote in September 2014.

But Prime Minister Rishi Sunak and his predecessors Liz Truss, Boris Johnson and Theresa May refused to give their agreement.

Earlier this year, the First Minister announced that the Lord Advocate would refer a proposed Holyrood bill to hold an independence referendum to the Supreme Court to assess whether the vote using devolved powers would be legally competent.

A two day hearing on the case took place last month in the Supreme Court in London.

The Lord Advocate Dorothy Bain KC told the court the question of whether Holyrood can hold an independence referendum without Westminster’s consent is a “festering issue” that must be answered in the public interest.

She said the issue was “one of exceptional importance to the people of Scotland and the UK” and told five justices it was a “live and significant” issue, as the SNP-Green Government wished to introduce a bill for a referendum at Holyrood.

She said she was unable to “clear” such a bill as she was unsure if it would stray into areas reserved to Westminster and asked for a definitive ruling from the Court.

She asked the justices to look only at the legality of a limited, purely advisory referendum, not speculate about its political impact.

She rejected arguments by the Advocate General for Scotland, for the UK Government, that the Court should refuse to determine the case as it is “abstract, hypothetical” and “premature”.

The UK Government’s lawyer Sir James Eadie KC argued the proposed bill was outside the powers of Holyrood and was very clearly intended to bring about “the termination of the Union”, not merely ask people a hypothetical question.

He said it was “perfectly obvious” that the Indyref2 Bill was about delivering independence, and it was “untenable” to claim otherwise.

“Evidently the purpose of the draft bill is not just to have an opinion poll,” he said, citing Ms Sturgeon’s own words at Holyrood as evidence, as well as the SNP’s 2021 manifesto.

He said the argument by the Lord Advocate that such a vote would not “relate to” the Union, an issue reserved to Westminster, was “contrary to common sense”.

Lord Reed, Lord Lloyd-Jones, Lord Sales, Lord Stephens, Lady Rose heard the case on October 11 and 12.

The precise question the court is to rule on is:       

"Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be “Should Scotland be an independent country?” relate to reserved matters? In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England; and/or (ii) the Parliament of the United Kingdom?"

The Supreme Court is the UK’s highest court and has previously ruled on disputes between the UK and Scottish Governments.

Ms Sturgeon announced to Holyrood on June 28 that the Lord Advocate was referring the proposed bill to the Supreme Court.

She told MSPs that if the court ruled that the Scottish Parliament did not have powers to hold the new vote without the UK Government's consent, the vote would not take place and instead she would use the next general election as a 'de facto' independence referendum.

She also stressed that if the ruling did not go in the Scottish Government's favour it would not be the court's fault but the legislation (the Scotland Act) the justices were ruling on.

"Obviously, it is this government’s hope that the question in the bill—proposing a referendum that is consultative, not self-executing, and that seeks to ascertain the views of the Scottish people for or against independence—will be deemed to be within the legislative competence of this Parliament," she said.

"If that outcome is secured, there will be no doubt whatsoever that the referendum is lawful, and I confirm that the government will then immediately introduce the bill and ask the Parliament to pass it on a timescale that allows the referendum to proceed on 19 October next year."

She added: "It is possible that the Supreme Court will decide that the Scottish Parliament does not have the power to legislate even for a consultative referendum. To be clear: if that happens, it will be the fault of the Westminster legislation, not of the court."