Supreme Court ruling has ‘no direct impact’ on indyref2 call

But Aileen McHarg, professor of public law and human rights at Durham Law School, said it does indicate the courts are less likely to take a “generous” view of the powers of the Scottish Parliament.

Last week the Supreme Court ruled Holyrood had legislated beyond its powers over two bills on new children’s rights and local government laws, after the UK Government took the case to court.

It is being seen as a tester of the decision which could be made if a bid by the Scottish Government to legislate for another referendum ends up in court.

McHarg (below) said the Supreme Court ruling last week has no implications “directly”.

“The objections to the competence of a referendum bill are different in kind to the objections that were made to these two bills,” she said.

“But indirectly I would say this suggests the court is taking a narrow view of devolved competence.

“So insofar as either in relation to a referendum bill you would be asking the court to take a generous view of devolved competence, then I think you would probably be less confident they would be willing to do so.”

She said the decision to go ahead with a referendum bill would be “as much a political calculation as a legal one”.

She added: “There’s nothing technically in the decision that changes the arguments on either side about whether a referendum bill is within competence or outwith competence.

“It is just a question of which side is a court likely to come down on.

“So it really will depend on what call the Lord Advocate is willing to make on that – obviously we have a new Lord Advocate so we don’t have any evidence yet as to whether or not she takes a restrictive view or a more generous view of these questions.”

READ MORE: Supreme Court ruling is ‘reality check’ for indyref2 hopes, warns SNP MP

One of the bills, the United Nations Convention on the Rights of the Child (UNCRC) (Incorporation) (Scotland) Bill was passed unanimously by MSPs earlier this year.

The second was the European Charter of Local Self-Government, which was put forward by former ­independent MSP Andy Wightman and also passed unanimously.

Nicola Sturgeon said the ­judgment of the Supreme Court on the bills made the case for Scottish independence.

She said: “The current powers of the Scottish Parliament leave us ­unable to fully protect children’s rights, even in devolved areas. If our Parliament was independent, no such restriction would apply.

Scottish LibDem leader Alex Cole-Hamilton claimed the Scottish ­Government had been “advised it was passing bad legislation” but had decided to press ahead with it “just for grievance with Westminster”. The Tories also accused ministers of stirring up “constitutional grievance”.

But McHarg said she believed the Supreme Court ruling had taken the Scottish Government by surprise.

“The allegations that this was ­nationalist game playing, they were just trying to create a grievance – that doesn’t really make sense in relation to either of the bills,” she said.

“The UNCRC Bill arose out of a long process with plenty of ­independent involvement, the other bill was a members bill which was drafted by somebody completely ­outside the Scottish Government with very good credentials.

“So nobody had ever considered that there was any problem about treating UK legislation in devolved ­areas as if it were the same as devolved legislation – these were regarded as having the same kind of status.”

Dr Nick McKerrell (above), senior ­lecturer in law at Glasgow Caledonian ­University, said issues over ­devolution powers were deriving from a conflict between the parliaments.

“It is not just Scotland, Wales has brought a couple of high-profile ­cases,” he said.

“There is obviously a more ­aggressive UK government now with a majority that I think is pushing the limits of devolution, it is trying to see what the limitations are.”

HE added: “Devolution is obviously relatively young in Britain with the Welsh Assembly and the Scottish Parliament being established just over 20 years ago.

“So the periods when it has been smoother could be when you have the same political parliament which ­happened in the first few years of ­devolution, when you had Labour in the Scottish Government and a UK Labour government.

“Even when you add an SNP ­minority government in the last years of Blair and Brown, it was relatively straightforward as there wasn’t the conflicts.

READ MORE: Nicola Sturgeon warns of consequences of court ruling on children's rights bill

“The conflicts have occurred, I think, when parliament are in tension with each other.”

McKerrell said the Supreme Court ruling was telling in that the court had taken a “legalistic” view.

“By that I mean they just read it very narrowly and quite ­explicitly don’t want to take the broader ­political context on board,” he said.

“It is not great if you thought the courts were going to say an indyref2 is valid without a Section 30 order – I think it points in a different direction from that from the judge’s point of view.”

He added: “I think what it reflects is quite a narrow view of devolved ­legislation.

“And if an indyref2 without a Section 30 order was going to get validity from the Supreme Court, you would need to have a court that was quite flexible in how it viewed devolution.”