As the court rejects the UK Government attempt to avoid a judgment on the substantive issue, Richard Parry assesses the political prospects for both sides going into the full hearing of devolved competence of an independence referendum.

Whatever the issue, it cannot be pleasant for a government law officer to find an application to the Supreme Court to be returned marked ‘refused’ in capital letters. This was the fate on 15 July of the UK government’s case, made on 10 July by the Advocate General for Scotland, who said that he would become a formal party to the referral but asked that the Court should not give an opinion on the SNP’s independence referendum bill before it had passed the Scottish Parliament.

The Court’s reasoning was that ‘since the issues of a) whether the Court should accept the reference and b) how the Court should answer the question referred will both require consideration of the circumstances giving rise to the reference and the substance of the question referred, it is in the interests of justice and the efficient disposal of the proceedings that the Court should hear argument on both issues at a single hearing’.

The Court may eventually accept the UK position that competence can only be assessed against an actual enactment, not an unintroduced bill or a hypothetical issue, and the UK government would retain the right to refer a referendum act after it had been passed. But it does make the hearing, announced on 21 July to take place on 11-12 October (with the parties for the parties asked to put their written cases by 9 August) the likely main event in the resolution of the issue. The size and composition of the panel of justices, to be announced at the end of September, may give a clue to how consequential a case the Court judges this to be.

If the Scottish Government case wins, or is perceived as winning by the words the judgment uses, the UK side and its new Prime Minister would surely have to consider doing a political bailout by reconciling itself to fighting the referendum, whether or not giving it full legal cover or saying in advance how it would treat a pro-independence vote.   

Far too loose assumptions have been made that an independence referendum ‘must be’ reserved since the Act of Union is reserved. The analogy would be with, say, referendums on removing nuclear weapons from Scottish soil or not awarding exploration licences for oilfields within waters subject to Scottish legal jurisdiction. The Scottish Parliament could not make these things happen, but are they prevented from consulting the people about their opinion and presenting the outcome to the UK government?

Here the unionist side hits the awkward fact that the calling of referendums is not reserved to the UK parliament; devolution legislation is silent on the matter. Indeed, the section 30 order that was the legal basis of the 2014 referendum prevented ‘any other referendum held under provision made by the Parliament’ from being held on the same day.  Equally, it might be argued that the order (which was approved by the Scottish Parliament) stated that the law ‘does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom’ if held before the end of 2014 with a single question, implying that ordinarily it is reserved. The legal arguments will be finely balanced, but the Lord Advocate’s ploy of seeking an early opinion from the Court has worked so far and she has a plausible textual interpretation of devolution law to deploy in the October hearing.

From the political angle, in every issue there is one side that wants to ‘bring it on’ and another that – whatever they say – would rather not. It has been assumed that the UK side would resist another referendum to the last, but doing so uses up political energy and requires constant rebuttal of the contention that the UK is cutting off any route to Scottish self-determination on the matter. For her part, Nicola Sturgeon continues to roll out her ‘Building a New Scotland’ series of papers; on 14 July Renewing Democracy through Independence opened up useful angles on the incompleteness of powers short of independence. But once she had set out her plan B to focus on the next UK general election, the suspicion arose that this was the outcome she expected and perhaps desired. She may now find a paradoxical force at work making a court-sanctioned referendum in 2023 a chance for unionists to turn a legal defeat into a political victory in the poll itself.

Richard Parry is a CCC Fellow and Honorary Fellow of the University of Edinburgh.

Image by Tom Morris, CC BY-SA 3.0, via Wikimedia Commons.

Further reading

See other recent reflections from our experts on the legality of a referendum on independence:

• Securing Scotland’s independence: Moving beyond process?
  – Aileen McHarg
• Implications of varying mandate definitions for Indyref2 legitimacy at Westminster-level elections
  – Mark Shephard
• Does the Scottish Parliament have the power to legislate for a referendum on Scottish independence?
  – Alan Page
• Scottish Indyref 2: Towards another constitutional crisis
  – Nikos Skoutaris​​​​​​​