Supreme court urged to authorise fresh Scottish independence referendum
The UK’s highest court has been told the question of Scotland’s independence is a “live and significant one”, and has been urged to authorise a fresh referendum next year.
Dorothy Bain KC, the lord advocate and Scotland’s top law officer, told the supreme court on Tuesday morning that Scottish voters had consistently elected MPs and MSPs who backed independence.
She told the court the Scottish parliament should be allowed to stage that referendum, without Westminster’s approval. She said the late Lord Mackay of Drumadoon, a former lord advocate and Scottish appeal judge, was right to say this was a “festering issue”.
She said: “It is an issue I invite the court to finally resolve.”
Three successive Conservative prime ministers have refused to authorise a second independence referendum, arguing that only Westminster has the legal power to approve one under the Scotland Act 1998 setting up the Scottish parliament.
Bain will argue the proposed referendum is consultative and, as its result will be non-binding on the UK government, it is essentially a government-run opinion poll.
A total of five judges led by Lord Reed, one of two Scottish judges in the supreme court, who is sitting with Lord Lloyd-Jones, Lord Sales, Lord Stephens and Lady Rose, will hear arguments about that question from Bain and the UK government lawyers, led by Sir James Eadie KC, over the next two days.
Their final ruling will have immense repercussions for Nicola Sturgeon’s nationalist government in Edinburgh, and for the future of the UK.
If the court decides it is lawful for Holyrood to hold a referendum on independence – which the first minister plans to stage on 19 October 2023, Liz Truss, the prime minister, will face the real prospect of presiding over the break-up of the UK.
If the court rules against Sturgeon, she is expected to put Scottish independence at the centre of the next UK general election, by arguing Scotland has an inalienable right to decide on its future. Opinion polls show most Scottish voters support that argument, more than independence itself.
As he opened the hearing, Reed said it could be “some months” before the court issued its ruling and disclosed it had more than 8,000 pages of legal arguments and supporting documents to read. “This hearing is the tip of the iceberg,” he said.
The court will hear two challenges from the UK government’s lawyers. Eadie will first argue that the Scottish application should be rejected because it is a draft bill and, since it has not been passed by Holyrood, it has no legal standing.
If the court rejects that argument, Eadie will then argue it is unlawful for Holyrood to pass legislation that affects the union of the UK, because all constitutional law is reserved to Westminster.
The UK government points out that earlier this year Bain refused to certify the draft bill as legally competent because she “did not have the necessary degree of confidence” it was lawful.
The UK submission to the court said the Scotland Act 1998, the legislation that devolved power to the Scottish parliament, is absolutely clear on that point.
Even though Scotland has its own legal system and an independent judiciary, the UK argues that Westminster is “the ultimate source of legal authority in Scotland. The secession of Scotland from the union would necessarily bring that sovereignty in relation to Scotland to an end.”
Speaking as he opened the hearing, Reed said the Scottish application could be thrown out on the first point alone. That would leave undecided the question of whether it was lawful for Holyrood to hold a consultative referendum; Sturgeon could then try to push the bill through the Scottish parliament and risk it being knocked down by the court at a later date.
But the court could also decide that even if the bill does not have legal standing, the topic is so important that it will rule on whether or not it breaches the Scotland Act. If it does, the court’s final ruling on the legality of Sturgeon’s gambit will prevent her from ever presenting the bill at Holyrood.