Indyref2: yes or no?

The Supreme Court must rule on Nicola Sturgeon’s bid for a second referendum

Joshua Rozenberg

This article is taken from the October 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

What is Liz Truss going to do about Scotland? “If I am elected,” the prime minister said while campaigning in August, “I will not allow another independence referendum.”

She has every reason to hope that a challenge to be heard by the UK Supreme Court on 11 and 12 October will go her way. But what if it doesn’t?

Truss, who was brought up in Paisley, describes herself as a child of the union. “To me we’re not just neighbours: we’re family. I will never, ever let our family be split up,” she promised. So, the prime minister will not approve an order under the Scotland Act 1998, as David Cameron’s government did when it allowed Scotland’s first referendum in 2014. 

Voters in Scotland rejected independence by 55 to 45 per cent, but Nicola Sturgeon, Scotland’s first minister, wants the Scottish parliament to pass another referendum bill. A draft has already been published. If that became law, voters would again be asked whether Scotland should be an independent country. 

Can Holyrood pass that bill? The Scottish government wants to know. Its senior law officer is Dorothy Bain KC. As lord advocate, Bain can refer what are called devolution issues to the court. They include questions about powers that have been devolved to the Scottish parliament. 

But devolved powers are limited. The Scottish parliament cannot make law on reserved matters — areas of policy that were retained at Westminster when the parliament was established. The “union of the kingdoms of Scotland and England” is a reserved matter, as is “the parliament of the United Kingdom”.

So, the question Bain has referred to the Supreme Court is simple enough. Does Sturgeon’s draft bill relate to reserved matters? In particular, does it relate to the union or the UK parliament?

You would think the answer was obvious. Surely a referendum on Scottish independence could terminate the union and emasculate the UK parliament?

No, says Bain. Certainly, Holyrood cannot dissolve the union. “It does not necessarily follow, however, that the proposed bill, providing for an advisory referendum on independence, relates to reserved matters.”

If Sturgeon wanted to proceed with her draft bill, one of her law officers would need to confirm that it was within the Scottish parliament’s legislative competence. And in a remarkably frank concession, Bain says she “does not have the necessary degree of confidence” to do so.

Voters would be asked whether they want the union to continue, she explains in written arguments to the court. Although the referendum would not change the law, its practical effect would be politically significant. A “yes” vote would put pressure on the UK government to grant independence.

On the other hand, she accepts, you could argue that the draft bill does not relate to the union and so would be within the Scottish parliament’s powers. An advisory referendum would just test public opinion. It would not take decisions on the union away from the UK parliament. Its effects are speculative.

Bain seems to be sitting firmly on the fence, saying this all depends on whether a referendum is defined by its legal effects or its political consequences. The lord advocate’s job requires her to act independently of the Scottish government. But this even-handed approach cannot have been what Sturgeon was hoping for. 

The first minister should be pleased that the court has agreed to consider submissions from the party she leads — though these will be in writing only. The Scottish National Party’s arguments are based on the right to self-determination in international law.

Written submissions have also been lodged by lawyers for the UK government. Its Scottish law officer is Lord Stewart of Dirleton KC, the advocate general, whose starting point is that the court has no jurisdiction to hear the lord advocate’s reference.

Stewart accuses Bain of trying to bypass established arrangements that allow questions of legislative competence to be decided by the Supreme Court after a bill has been passed but before it comes into effect. 

He also argues that judges don’t usually give advisory opinions on abstract legal questions. And he says that Bain’s question does not raise a true devolution issue. Finally, Sturgeon’s bill relates to reserved matters — so the Scottish parliament cannot pass it into law.

Scotland’s first minister cannot be confident of winning in court

Scotland’s first minister cannot be confident of winning in court. In that event, her party would fight the next general election on the question of Scottish independence. Might a future UK government be forced, after all, to allow an “indyref2”?

And if that seems likely, should the UK government quickly legislate for a two-thirds referendum majority — or raise the threshold for a “yes” vote from 50 per cent of those voting to, say, 50 per cent of the entire electorate? Might that be counter-productive, generating more support for independence?

Yet more questions for the still-new prime minister — but ones that can probably wait until we hear what the Supreme Court has to say.

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