Ruling could leave Sturgeon’s plans dead in the water

THE UK Government has asked the Supreme Court to reject Nicola Sturgeon’s request for a ruling on whether she can hold a legal referendum on independence. Scottish Political Editor MICHAEL BLACKLEY assesses why the court’s decision could kill off the SNP’s push for another vote. Q: Why is the Supreme Court considering whether to make a ruling?

A: When she announced last month that she wants an independence referendum to take place on October 19, 2023, Nicola Sturgeon said she would refer the issue to the Supreme Court to decide on whether a legal vote can be held without the consent of the UK Government. She claimed that, if the court rules it would not be legal, ‘it would be the fault of Westminster legislation, not the court’.

Q: What has the UK Government said on the issue?

A: In a submission to the Supreme Court yesterday, the UK Government argued that, firstly, its view remains unchanged and that legislating for an independence referendum would be outside Holyrood’s competence. But it also told the court that it believed it would be ‘premature’ to even examine the issue before legislation is proposed. It highlighted that a statutory process is set out in the Scotland Act 1998 to test whether legislation is within the legislative competence of the Scottish parliament, but that this only begins after a Bill completes its passage through parliament. It argues that the Supreme Court should only make a ruling if the Scottish Government Bill is published and then approved by a majority of MSPs.

Q: What do the Scottish Government’s lawyers think?

A: The UK Government’s submission highlighted that the Scottish Government’s top law officer, Lord Advocate Dorothy Bain, does not even have the necessary degree of confidence that the Bill would be within devolved competence. Papers submitted to the court by the Scottish Government last week showed that the Lord Advocate was not willing to give a statement confirming that the legislation was within Holyrood’s powers.

Q: What happens next?

A: The Supreme Court’s president, Lord Reed, will now decide whether it should rule on the issue and, if so, when the case will be heard.

Q: Why will the Supreme Court decision be significant?

A: It could have major implications on the First Minister’s push for an independence referendum. If the Supreme Court does not make a ruling, Miss Sturgeon will need to decide whether to press ahead with introducing independence referendum legislation at Holyrood without clarity on whether this is within Holyrood’s powers. She would first need the agreement from the Lord Advocate that this would be within Holyrood’s competence – but Miss Bain has already made clear she cannot provide this statement without a Supreme Court’s verdict. So if the Supreme Court decides not to make a ruling, it could make it impossible for Miss Sturgeon to progress her plans.

Q: What would Nicola Sturgeon do if she can’t go ahead with a referendum?

A: The First Minister has indicated that, if the UK Government refuses to grant a Section 30 order to hold a legal referendum, and if she fails to secure the legal clarity she can hold a referendum without UK Government consent, then she would look to make the next general election a de facto referendum. If the SNP won a majority of votes, she would claim this as a mandate for independence. However, legal experts have cast grave doubts on whether this could ever work.