THE UK Government’s effort to have the Supreme Court case for a Scottish independence referendum thrown out without even receiving evidence on it has been rejected, The National can reveal.
It marks a victory for the Scottish Government in the first major legal battle in the Supreme Court showdown.
The development is a “significant step forward” in the process of having the full case heard and securing a referendum, the SNP have said.
Last month, Scotland’s Lord Advocate Dorothy Bain asked the court to rule on whether the Scottish Parliament has the relevant powers to hold a referendum without consent from the UK Government through a Section 30 order – something which legal commentators are split on the possibility of.
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The Westminster government reacted by asking the court not to hear the case, asking if it would be “premature” as the proposed Referendum Bill is yet to make its way through Holyrood.
The Tory government’s representatives asked judges to consider whether they would accept the referral from Bain, arguing that by seeking to establish whether a bill is within the parliament’s devolved competence before the bill has passed “raises important legal questions which cut across the statutory process”.
However, The National now understands that the court will move on to hear the written arguments of substance in favour, and opposed to, Holyrood legislating for a referendum itself. Judges will then rule on whether to hear the case orally or not.
Written papers will need to be submitted to the Supreme Court by Tuesday, August 9, this year.
Ian Blackford, the SNP’s Westminster leader, welcomed the news.
“I’m glad to hear the Supreme Court are not going to be browbeaten by a UK Government that are trying to stop democracy from taking place,” he said. “In the end we will prevail. Let’s wait and see what happens.”
The MP also called on the wider Yes movement to be “resolute” and united throughout the process in the face of UK Government efforts to frustrate developments.
Tommy Sheppard, the SNP’s constitution spokesperson at Westminster, said it’s a “very welcome” decision from the court.
“[The Scottish Government] should be allowed to let people express a view,” he told The National. “It’s been nearly 10 years since the last vote, the question hasn’t gone away and in many ways far more people now are desperate for a change to the Westminster system than they were back in 2014.
“I think the UK Government just thinks if they can ignore this for long enough it will go away.”
An SNP spokesperson added that while the party await confirmation from the Supreme Court, they “cautiously welcome” the news.
“It represents a significant step forward in having our full case to hold a referendum properly heard and ruled on by the Supreme Court,” they said.
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“The people of Scotland have the inalienable right to determine our own future by choosing the form of government best suited to our needs.
“We must now allow the court the required time and opportunity to deliberate and provide legal clarity on this contested issue.”
The Lord Advocate chose to make the Supreme Court reference “following consideration of a number of factors including the constitutional significance of the matter and the fact that issues of law remain unresolved”.
The First Minister explained that she asked her Lord Advocate to make the court referral to establish beyond doubt whether the Scottish Parliament can legally hold a ballot on Scotland’s future.
If the Scottish Government gets the green light, a vote will be held on October 19, 2023.
But she said if the court determines that doing so would be beyond Holyrood’s competency, the next General Election will be used as a de-facto independence referendum.
A spokesperson for the Scottish Government said: “Whether the reference is accepted, how long it takes to determine, which matters the court considers and when and what judgment is arrived at are all for the court to determine. The reference is now before the Supreme Court, and the Court should be allowed to fulfil its function.”
A UK Government spokesperson said: “We appreciate the Supreme Court dealing with our application quickly. We will proceed to prepare our written case on the preliminary points we have noted, and on the substantive issue, to the timetable set out by the Court.
“On the question of legislative competence, the UK Government’s clear view remains that a Bill legislating for a referendum on independence would be outside the legislative competence of the Scottish Parliament.”
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