Supreme Court shatters Sturgeon’s plan for Indyref2 next year

They ruled that a proposed Holyrood Referendum Bill would "relate to" the Union and sovereignty of the UK Parliament, and was therefore beyond Holyrood's legislative competence.

They said that the practical effect of the Bill would to be bring about the end of the Union, even if its immediate legal effect would be limited. 

Effectively passing the matter back to the political realm, the judges said that it would require a re-run of the process used in 2014 for Holyrood to hold a referendum, with temporary powers granted under Section 30 of the 1998 Scotland Act.

Delivering the decision, Lord Reed said the Court had decided to consider the issue because it was of clear public interest, rejecting the UK Government's argument that it was hypothetical and premature.

But he concluded: "The Scottish parliament does not have the power to legislate for a referendum on Scottish independence.”

As the court is the highest legal authority in the UK, there is no route of appeal. 

It means the First Minister will not be able to hold a referendum on 19 October 2023 under Holyrood’s existing devolved powers, as she had hoped.

She said in June that if the Court ruled against her she would fight the next general election as a ‘de facto’ referendum on the single question of independence instead.

However there is widespread unease among senior SNP figures about whether that would work in practice, given voters are focused on the cost of living, inflation and energy bills. 

Read more: Sturgeon reacts to Supreme Court failure on Indyref2

The ruling is also likely to fuel speculation that, after eight years and little progress on delivering a Yes vote, Ms Sturgeon will stand down before the 2026 Holyrood election.

Ms Sturgeon said in June that if the Court did not rule Holyrood had the power to hold Indyref2 that would “be the fault of the Westminster legislation, not of the court”.

She repeated that assertion in her speech to the SNP conference in October, saying: “First, and obviously, we will respect that judgment. We believe in the rule of law.

“And as a party - and a movement - we will, of course, reflect.”

However that is unlikely to satisfy some of her own supporters.

Yes campaigners are expecting to hold rallies across the country to mark the ruling, including at the Scottish Parliament.

Before the 2014 referendum, the UK and Scottish governments agreed to work together, with Westminster granting Holyrood temporary power for a legally watertight vote.

However, since Ms Sturgeon began asking for a second vote in light of Brexit, the UK Government has refused to grant another such transfer of power.

Theresa May said now was not the time, while Boris Johnson said the No result of 2014 should stand for a generation.

Unable to make progress, and facing growing impatience in her own party, Ms Sturgeon took an uncharacteristic gamble in June, backing an option she had previously dismissed.

The First Minister announced that she had asked her most senior law officer, the Lord Advocate Dorothy Bain KC, to ask the Court for a definitive ruling on whether Holyrood needed Westminster’s consent to stage an independence referendum.

It followed Ms Bain refusing to sign off a Referendum Bill the First Minister wanted to introduce at Holyrood in case it strayed beyond the parliament’s powers by encroaching on the reserved matter of the Union.

Ms Sturgeon asked her instead to refer the matter to the Court under a never before used provision in Schedule 6 of the Scotland Act 1998.

Ms Bain agreed, and last month presented her arguments to the Court in person.

She asked the justices to rule on whether Holyrood could pass a Bill asking Scots whether they thought Scotland should be an independent country under its own powers alone.

In particular, she asked the Court to say whether this would “relate to” the Union, which is off-limits to Holyrood.

She and the SNP argued such a referendum would not relate to the Union, as it would only be consultative, not self-executing, and its legal effect would technically be “nil”. 

Read more: Supreme Court rules against Indyref2, but will Sturgeon give up fight?

Ms Bain admitted such a vote would have “some political significance”, but said the justices should not speculate about what the “political fallout” would be.

“The wider motivations and aspirations of the Scottish Government and other political parties are not legally relevant,” she said, toward the end of a four-hour submission last month.

“Any practical effects beyond ascertaining the views of the people of Scotland are speculative, consequential and indirect and should not be properly taken into account.” 

However the UK Government said the issue had to be considered in its wider context, and the political intent of such a referendum would clearly be to break up the Union.

The UK Government also argued the Lord Advocate had erred in referring the issue to the Court in the first place.

Sir James Eadie, for the Advocate General for Scotland, said the Scotland Act had a clear mechanism for referring Holyrood laws to the Court for a ruling on their legislative competence - but only after they had been passed by MSPs, not before.

Ms Bain’s decision to refer a draft Bill, which had not entered the Scottish Parliament and could yet be amended, was therefore hypothetical and “premature”, he said. 

He said the Court should reject her application to have the matter considered under Schedule 6 of the Act - or use its discretion not to consider it even if it was a valid request.

In any case, it was “perfectly obvious” that the draft Holyrood Bill did “relate to” the Union, as its goal was “the termination of the Union”, and claiming otherwise was “untenable”.

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