THE delivery of the Supreme Court independence referendum judgment this week could indicate judges have concluded it is too early to rule on whether Holyrood has powers to hold another vote, a law expert has suggested.
The UK’s highest court has announced that the outcome of the case will be revealed on Wednesday, six weeks after a two-day hearing on 11 and 12 October.
At the opening of the proceedings, the Supreme Court’s senior judge Lord Reed said it was likely to take “some months” to issue a judgment, with more than 8000 pages of written material having to be considered.
The court could decide Holyrood has the power to hold a referendum, or not, while a third option is that they do not make a ruling either way.
Dr Nick McKerrell, senior law lecturer at Glasgow Caledonian University, emphasised it was difficult to guess what the outcome will be.
But he said the shorter timescale for the judgment suggested it could mean the court has decided it is too early to rule on the Scottish Independence Referendum Bill as it has not yet been passed by the Scottish Parliament.
“If that was the case you wouldn’t need to have a full judgment on whether or not the Scottish Parliament had the power,” he said.
“On the substantive issue of whether or not the Scottish Parliament has the power to call a referendum, there is a lot of arguments in that and I don’t think that could be dealt with quickly.”
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If the court does rule it is too early to decide on the legislation, McKerrell said the next step could be for the Scottish Independence Referendum Bill to proceed through Holyrood.
Lord Advocate Dorothy Bain KC referred the case to the Supreme Court asking judges to rule if the legislation would be within the competence of the Scottish Parliament as she did not have the “necessary degree of confidence”.
McKerrell said: “The UK Government argued there was no legal requirement for [Bain] to back it to introduce it to Parliament. That is explicitly true for any backbench MSP, because they don’t need sign off from the law officers.
“For the Scottish Government, it is because it is in the ministerial code, it is their reading of the legislation and indeed that is what all governments have done.
“But it is not required – that could be the ruling. So what [the court] could say is we can’t rule on this bill until it goes through the parliamentary procedure, however you can introduce it.”
He added: “The argument which the Lord Advocate made was that there will never be an answer to this as it will never be introduced through Parliament until we know if Holyrood has the powers to hold a referendum or not.
“I think the judges won’t like that – this is guesswork obviously – but if they say it is too early I don’t think they would leave it at that. I think they might say the Scotland Act doesn’t require the Lord Advocate to sign it off.
“So they might say if the Scottish Government wants to put this bill through Parliament they can do it – but we are not going to rule on whether it is going to be a valid bill or not until the end of the process.”
While opposition parties are likely to attack it, the pro-independence majority at Holyrood means it will be expected to pass without difficulty.
McKerrell said it was then the UK Government that would be likely to challenge the Scottish Government’s powers by taking the case back to the Supreme Court.
He said a quicker judgment could also be the result of the whole court “uniting” behind one ruling – which could include a decision on whether or not Holyrood has the powers to hold a referendum.
But he added: “I don’t think that’s likely as I think there is too many different avenues you have to explore, and I don’t think there will be a united view.
“I don’t think they will necessarily disagree on any point, but they might have different reasoning behind their thinking, which they would want to express.”
First Minister Nicola Sturgeon has proposed a date of the October 19 next year for an independence referendum to be held.
McKerrell pointed out the circumstances were unprecedented as it was the first time the Lord Advocate has referred a bill – and the Supreme Court could be “very efficient” in dealing with cases.
He added: “When there is an imminent constitutional issue like prorogation, that needed to be resolved quickly. For this you could say a date has been set, but that is in October next year.
“That again means there is no particular reason [the ruling] would be quicker because of that.”
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