After the Supreme Court oral hearings, Richard Parry assesses the submissions of both sides on an independence referendum and the way the case might be decided

Rishi Sunak – but not Liz Truss - was asked an explicit question at the Conservative leaders’ hustings in Perth on 16 August about whether he would seek to enact a UK law to prevent the Scottish Government from calling an independence referendum on pain of individual financial penalty. Sunak wisely sidestepped with a ‘I’d be happy to look at that’, while Truss was allowed to get away with the dubious assertion that the SNP had somehow promised in 2014 not to the return to the issue for a generation if they lost and so were morally as well a politically in the wrong. Truss had previously asserted (Sunday Telegraph 31 July 2022) that ‘the Scottish Independence Referendum Bill isn’t legal and it will be invalidated if passed by the Scottish Parliament….any Scotland independence referendum would need to be authorised by the Westminster Parliament. If I become Prime Minister, I would not grant that authority’, As with so much else, promises made in haste during the leadership contest may have to be repented at leisure as Truss’s assertions about the law are tested judicially.  

Truss inherited the legal case of the UK government, set out by the Advocate General Keith Stewart on 10 August   (www.gov.uk/government/publications/supreme-court-case-no-20220098-written-submission/) . This followed the full legal case of Lord Advocate Dorothy Bain on 22 July ( www.gov.scot/publications/reference-to-the-supreme-court-publication-of-the-lord-advocates-written-case/ ). Bain’s case attracted much comment for setting out the case against the SG no less fully than that for it, and prompted the SNP as a party to put in a case of its own on 26 September www.snp.org/the-snps-supreme-court-submission-on-the-independence-referendum/ . Perhaps Bain felt bound to ‘assist’ the Court to assess the abstract legal opinion she is seeking. She made her case ‘if necessary differing from her predecessors’ (para 29) but seemed to be trying to maintain some consistency with the long-standing position inside the Scottish law officers’ team that existing powers were not sufficient to allow her to certify that a go-it-alone indyref bill would be legally competent.

The Lord Advocate abandoned even-handedness when asserting that Holyrood’s acceptance of the 2013 section 30 order was no longer relevant (paras 139-146). That acceptance reflected a general understanding that a referendum whose legitimacy was contested was politically not worth having compared to the ‘gold standard’ that the Edinburgh Agreement had set. On the other side, the UK case suffered from the rebuff of its initial attempt to prevent the Court considering at all the Lord Advocate’s referral in the absence of an enacted bill. Saying ’there is no case to answer but even if there were we would win it’ puts any legal argument on the back foot.

There was an interesting convergence of the written cases when both sides refer to the debate in the House of Lords on the 1998 Scotland Bill when Lord Mackay of Drumadoon for the Conservatives proposed but then withdrew two contradictory amendments to make it clear one way or the other whether an independence referendum was or was not within devolved competence (21 July 1998, Hansard vol 592 col 852-5). He was assured by Lord Sewel for the government the matter was solidly reserved, but the question remains: if it was so important, why not put it beyond legal doubt? The answer surely is that devolution was meant to kill off independence and the SNP, and so to address directly in the Bill the scenario that they would achieve a Holyrood majority and pursue such a proposition was taboo.

Faced with an absence of specific reservation, the UK has to rely on the wording that a Holyrood law is not valid if it’ relates’ to a reserved matter, having account to ‘its effect on all the circumstances’. Case law has established that ‘relates’ means more than being connected with or having repercussions on, more than ‘loose and consequential’.  It might seem easy for the Court to frame the expected pro-UK verdict, but it is might be hard to supply the foundation of legal text for it when the UK Parliament assumed it had the power but declined to say so explicitly in devolution law.

At the oral hearings on 11 and 12 October, Bain presented her own case and Sir James Eadie the UK’s. A normal-sized panel of five justices – and, if this means anything, one with a non-English majority - is hearing the case (Lord Reed, and Lords Lloyd-Jones (from Wales), Sales, Stephens (from Northern Ireland) and Lady Rose). The other Scottish justice, Deputy President Lord Hodge, is not sitting. As more consequential cases may attract larger panels, this may be a small signal of the Court’s likely scope in its approach to this referral.

Predicting the Court’s verdict is difficult, especially for politicians and commentators who do not think in a lawyerly way about legal texts and precedents. It is also hazardous to attempt to interpret the interventions of the justices during the hearings, but two themes seemed to emerge, especially from questions by Lord Reed, Lord Sales and Lady Rose. The first was that the Schedule 6 procedure invoked by the Lord Advocate is there to be used – as Sales said, ‘it might seem strange that you can’t get an authoritative view of a court’. The second was the significance, if any, of the fact that section 31 of the Scotland Act requires the minister in charge of a bill, not the Lord Advocate, to state that it is within competence. In practice ministers cannot make such statements without law officer clearance and the justices seemed worried that they might legitimately differ in their views and that an over-cautious legal approach might prevent an arguable case for competence being tested.  

The starting-point of the present action that the Lord Advocate has asked the Court to give her enough legal comfort to allow her to certify the indyref bill as competent. The route to such comfort would probably rest on the non-reservation of referendums in devolution legislation. The Court could say that this does not matter: reservation of a function includes reservation of the associated political action that a referendum would represent. The Court might say that it is for Parliament, not the justices, to clarify this point. But would the Court go so far as to say that, under the present law, a legal, political route to independence can be withheld at the discretion of the UK government, a discretion that the new Prime Minister has pledged to exercise?