'UK Supreme Court approval might not break Scottish independence referendum deadlock'

The Supreme Court will hear arguments for and against the Scottish Parliament being able to pass a draft independence referendum bill over two days on October 11 and 12.

It will be a key moment in the Scottish Government’s plans to hold a vote on whether Scotland should leave the UK next year.

The case will be live-streamed on the Supreme Court website, but those tuning in should not expect a dramatic courtroom showdown between legal representatives for the Scottish and UK Governments – and the “verdict” of the judges won’t be delivered for weeks.

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Scotland’s Lord Advocate Dorothy Bain KC will spend much of the time outlining both sides of the argument on the question of whether or not the draft independence bill relates to reserved matters at Westminster, while the UK Government will argue it does and is therefore outwith the powers of Holyrood.

If the Supreme Court decides that draft referendum legislation would be within the Scottish Parliament’s powers, First Minister Nicola Sturgeon has said her government would “immediately introduce” the bill and ask Holyrood to pass it “on a timescale that allows the referendum to proceed on October 19 next year”.

Dr Nick McKerrell, senior lecturer in law at Glasgow Caledonian University, said in this scenario it was it was unlikely the UK Government would stop the bill – but there would still be the possibility of anyone in Scotland challenging it.

“Anyone in Scotland could challenge it in the Scottish courts after it has become enacted, like [what] happened with the law on minimum alcohol pricing – the Whisky Association unsuccessfully challenged that through the courts,” he said.

“That could happen, but I think it would be very minor delaying tactics – as if there was a Supreme Court ruling on it it would be difficult for the Scottish courts to say actually it is not within the power of the Scottish Parliament.

“There is nothing to stop someone raising a challenge, but it would be dismissed I think very quickly. So if the Supreme Court rules in its favour, I think there is very little legal obstacles you could put in its way.”

However, McKerrell said that the Supreme Court making a clear ruling in this way was probably one of the “more unlikely” outcomes.

One of the major challenges which the UK Government will also make is over the timing of the case going to the Supreme Court – which is happening before the bill has been through parliament, where it could be amended.

“In other cases where a bill had been reviewed by the Supreme Court, this has been done at the end of the road as regards parliament, not at the beginning of the road,” he said.

Anthony Salamone said that the UK Supreme Court cannot force Westminster to cooperate with Holyrood

“The argument is – and I think it is a fairly convincing one the Lord Advocate said – is that if you don’t have it, there will be just be a stalemate.

“You won’t be able to discuss it unless you have a ruling on this idea as obviously [the Lord Advocate] is not prepared to give permission to the bill on the basis as it stands.

“She says the rule of law would suggest you need to have this, as a sizeable section of Scottish society think there should be a referendum – so unless we get a resolution on it then there won’t be a legal answer given.

“The UK Government says that is not the case – there is a process of referring bills to the Supreme Court but it is not at this stage, it is later on.”

McKerrell said this could lead to the Supreme Court giving the go-ahead to the bill – but then if it does get changed as it passes through Holyrood, another legal challenge could be launched.

The judges could also give the go-ahead for MSPs to debate the bill, but say the legal issue of the validity of it should be decided at the end of that process.

Of course, the Supreme Court could rule the bill is not within Holyrood’s powers – which means it could not be introduced to the parliament and passed.

In the route map to independence outlined earlier this year, Sturgeon has pledged the next step will be to use the next general election as a “de facto” referendum.

When it comes to the political fall-out from the case, political analyst Anthony Salamone said it would be “significant” as it would make a departure from the “holding pattern” of the Scottish Government requesting a referendum and the UK Government refusing.

But he argued it would not change the reality that the UK Government and the Scottish Government will have to cooperate in order to make independence happen and the fact the issue ended up in court was a “failure of politics”.

“The issue of whether or not the Scottish Parliament can legislate for a referendum without the UK’s Government’s endorsement is at the heart of the Supreme Court case,” he said.

“There is a big difference between that and whether or not an independence referendum takes place that actually has the support of both governments, that actually has cross-party buy in that has a genuine prospect of delivering independence if that was the choice that voters made.”

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HE added: “Those are two completely separate issues, so even if the SNP wins this Supreme Court case, that does not mean that an independence referendum is necessarily going to happen that could actually lead to independence.”

Salamone suggested that even if the Scottish Government won, the UK Government would have the scope to change laws to prevent a referendum and would not necessarily feel more pressure to cooperate on independence.

He added: “If at the heart of this recourse to the courts is to try to break the deadlock between the Scottish Government and the UK Government, the court cannot necessarily do that.

“The court can clarify the law, but the court cannot make the UK Government want to cooperate with the Scottish Government and that’s the necessary criterion for making a real independence referendum happen.”