Supreme Court independence referendum case: Next steps explained

Dr Nick McKerrell, senior lecturer at Glasgow Caledonian University, said the timescale for indyref2 to take place on October 19 2023 would be achievable if the legislation was given the go-ahead.

But the judges may reject the idea that Holyrood can hold a vote on the issue without the support of Westminster – or decide it is too soon for the court to make a decision on the bill.

Here we look at some of the keys questions over the Scottish Independence Referendum Bill being referred to the Supreme Court.

An unprecedented step

It had been widely expected that the issue of whether Holyrood could hold a referendum without the support of Westminster would end up in court.

But the surprise in the route map unveiled by Nicola Sturgeon is that the Scottish Government had taken action on this – rather than waiting for a challenge from the UK Government or private individuals.

At the request of the First Minister, the Lord Advocate Dorothy Bain QC has referred the question of whether the bill is within Holyrood’s powers to the Supreme Court.

McKerrell described it as an “unprecedented” step in Scotland.

“The Lord Advocate has never referred a law to the Supreme Court to see if it is within the powers [of Holyrood],” he said.

“It is more relatively common in Wales and Northern Ireland, where there is a similar provision to do so.

“They don’t have as much power, so it has happened more often there as there is more debate about where the powers lie in those devolved parliaments.”

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McKerrell said one reason why no-one anticipated the move is the expectation would have been for the Lord Advocate herself to announce the action.

“If the law officers in Wales and Northern Ireland choose to refer a law to the Supreme Court, they announce it,” he added.

Autumn hearing?

The Supreme Court has issued a statement which said the first step will be for the court’s president Lord Reed of Allermuir to decide whether there are “preliminary” matters to be addressed, when the case will be heard. He will also decide which justices will hear the case and who the judges will be.

However McKerrell explained the case is unlikely to be heard until the autumn.

“The Supreme Court sits in sessions, a bit like for parliament,” he said. “It doesn’t meet over the summer, for example.

“The date I would guess for the hearing would be the autumn, and the decision you would imagine would be four or five weeks after that.

“So it would be the turn of the year or early next year [for the decision], I would expect.”

He added: “If they say it is okay, then you have a month or two months to pass the law, and you have six months to have the referendum campaign – that is probably what [the Scottish Government] is thinking.”

Lord Reed of Allermuir, President of The Supreme Court

Lack of arguments

One of the features of this “unusual” type of legal action is it will not feature “partisan arguing”, McKerrell said.

Rather than having two sides arguing for and against the matter, the Lord Advocate – or another legal representative of the Scottish Government – is likely to present both sides of the case.

He said: “The Lord Advocate is not saying I believe this is in the power of the Scottish Parliament.

“What she is saying [to the court] is there is a debate here – some people say it is within the power, some people say it is not – you decide.”

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However McKerrell said the UK Government is likely to make its own arguments in the case.

“It is not a case against them – in Scots law we are used to having two sides that is one against another in a courtroom,” he said.

“That is not really what this is, as it is a referral to discuss a piece of law.

“The UK Government will probably intervene in it – which means they will present an argument.

“They will present the argument of why a Section 30 order is necessary, I would expect.”

Too soon for a decision?

The Supreme Court could decide for or against the case that the bill is within Holyrood’s powers.

But there is also another possibility – that it decides it is too soon for a ruling to be made.

This happened in the case brought last year by Martin Keatings on behalf of the Forward As One group, in which the Court of Session in Edinburgh considered whether Holyrood had the powers to hold an independence referendum.

Judge Lady Carmichael dismissed the case, calling it “hypothetical, academic and premature” – and added she would have reached the same conclusion “even if a draft bill were available for consideration”.

McKerrell said one argument might be that because the bill hasn’t gone through the parliamentary process, it could still in theory be subject to amendments.

“The argument could be presented to court which says the way in which proposed legislation is determined is at the end of the parliamentary process – and it is that law which should be assessed,” he said.

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He also said the language used in the section of the Scotland Act which allows the Lord Advocate to refer legislation to the Supreme Court mentions ‘acts’ – but not bills.

“It is a legal detail – but the shorthand is the court could rule it is too early for us to make this judgement and say we need the bill to go through parliament first,” he added.

Win or lose?

The outcome of the debate over whether Holyrood would have the powers to hold the referendum is unknown until the court makes a decision.

However McKerrell said he believes on the “balance of probability” it is likely the Supreme Court will rule against it.

He pointed to the example of the defeat in the Supreme Court of plans by the Scottish Government to incorporate the United Nation’s Convention on the Rights of the Child (UNCRC) into Scots law, following a challenge from the UK Government.

If a referendum cannot take place, Nicola Sturgeon has declared the next Westminster election will be a “de facto referendum” on Scotland’s place in the UK.

However McKerrell said referring the indyref legislation to the Supreme Court put Scottish ministers “in control” of the situation and would mean a manageable timeframe – if they win.

“The other thing which is more pragmatic is they don’t have to get the Lord Advocate’s permission to introduce the bill [to the Scottish Parliament],” he said.

“It seems to me the Lord Advocate has been reluctant to do that, so that is why they have made this referral to the Supreme Court.

“The problems come further down the line if they don’t get the authority of the Supreme Court.

“Or if the court says it is too premature, you could have to go through the parliamentary process and then have the court strike it down.

“The timeframe is out of control a bit in all that.”