What judges ruled... and why it matters

Why was there a court case?

NICOLA Sturgeon has been agitating for a re-run of the 014 independence referendum but no UK prime minister has agreed. The 014 vote went ahead lawfully because then-PM David Cameron granted the power to do so using Section 30 of the Scotland Act. This time, the First Minister produced instead a draft Bill to legislate for a referendum on October 19, 0 3, without the consent of Westminster. The Scottish Government’s top law officer, Lord Advocate Dorothy Bain, was told to ask the Supreme Court to decide if Holyrood had the power to hold an advisory referendum.

Why was it taken straight to the court, rather than parliament?

THE Lord Advocate admitted she did ‘not have the necessary degree of confidence’ that the Scottish Government had the power to hold a vote on Scottish independence. For all government Bills taken through parliament, the Lord Advocate has to declare that she believes they do not relate to a reserved matter – an area the UK Government is responsible for. SNP ministers realised that if they passed a referendum Bill, this would inevitably face a legal challenge. By going directly to the Supreme Court, Miss Sturgeon aimed to avoid the time it takes to pass legislation as well as likely scrutiny from both the inner and outer houses of Scotland’s Court of Session.

What happened during the court case?

THE two-day hearing at the Supreme Court in London last month saw Miss Bain setting out the Scottish Government’s case. Judges also allowed a written submission from the SNP. The UK Government argued reference of the issue to the court was premature because the Bill had not been passed and therefore it should not even be considered. It also argued the proposed Bill was ‘self-evidently, directly and squarely’ about the Union – a matter wholly reserved to Westminster. Miss Bain’s argued a referendum on independence would be ‘advisory’.

What did the court decide?

IN a summary of the judgment, Lord Robert Reed said justices had to consider the Bill’s ‘practical effects’ rather than just the legal implications. He declared it was clear the proposal ‘has more than a loose or consequential connection with the reserved matters of the Union’. In a unanimous verdict, the five judges ruled Holyrood does not have the power to legislate for a referendum on independence.

What does it mean for the SNP and Indy campaign?

THE ruling kills any hope the SNP and Greens had of holding a referendum on Scottish independence without Westminster’s consent. Nicola Sturgeon said the SNP would fight the next general election as a ‘de facto referendum’. She has indicated that if her party wins more than 50 per cent of votes in Scotland, she would take that as a mandate for independence.

Would treating a general election as a de facto referendum be binding?

NO, the UK Government would be under no legal obligation to begin independence negotiations.