CONSTITUTIONAL experts have weighed in on legal advice which argued that the UK Supreme Court overreached into judicial activism by blocking Holyrood from holding indyref2.
Last week, Alba published an extract from constitutional law specialist Aidan O’Neill KC which said that the decision of the UK's highest court to block the Scottish Parliament “from directly consulting the Scottish people which elected it ... is, to say the least, paradoxical".
O’Neill’s advice argued that the Supreme Court’s ruling, from November 2022, appeared to be "gouvernement des juges [judicial activism] par excellence".
It further stated: “The UK Supreme Court can only be required to face up to this judicial overreach by the Scottish Parliament exercising its democratically founded legitimacy by passing new referendum legislation with a newly worded question.”
Alba MSP Ash Regan (above), who defected from the SNP in October, has made the advice a key pillar of her strategy. She is calling for support for a referendum – to be held on the 10th anniversary of the first – asking if the Scottish Parliament should “have the power to negotiate for and legislate for Scottish independence".
But speaking to the Sunday National, experts cast doubt on the chances of the plan succeeding.
Durham University public law professor Aileen McHarg said: “I agree with the argument that it would be paradoxical if Holyrood could not legislate for a referendum on whether it should have power to hold an independence referendum, given that the Scotland Act contains a mechanism for adjusting the competence boundaries, which has been used for this very purpose in the past.
“However, given that this would almost certainly be seen as a proxy for a referendum on independence itself, I imagine that the Supreme Court would regard this as relating to the reserved matter of the Union, in the same way as the draft independence referendum bill.”
Richard Parry, a fellow of the Centre on Constitutional Change at the University of Edinburgh, said that previous referendums had set a “powerful precedent” and their results would have to be enacted in law.
Parry pointed to paragraph 78 of the Supreme Court’s ruling, saying: “If you read the judgment, they very much say it's not for the Government to run a glorified opinion poll.
“If they do [run a] referendum, it has to be taken as a serious democratic exercise. Frankly, that's it.
“The Supreme Court didn't have to get into this really, but they chose to and I think this has changed the way we look at referendums.
“It was, of course, key to the argument of the Scottish Government, ‘this is only an advisory referendum, it doesn't have any direct legal effect, it's just ascertaining what the position and what the views of the people of Scotland are’.
“The Supreme Court said 'no, this is really it'. That would make me not clear that Aidan O'Neill's (below) arguments are going to really get any traction and I can't see that leading anywhere.”
Parry said that the Supreme Court’s ruling used “quite strong words which they didn't need to use”. Asked if that may constitute judicial overreach, as O’Neill’s advice argues, he said it was a matter of perspective.
McHarg said she had “some sympathy with Aidan’s point that the Supreme Court engaged in judicial overreach by protecting the UK Parliament against the political pressure that would be engendered by a purely advisory referendum”.
The professor went on: “However, this is in line with an expansive view of parliamentary sovereignty developed in recent devolution and other cases. There is also some textual support in the Scotland Act for the view that practical as well as legal effects are to be taken into account in determining whether a bill relates to reserved matters …
“Of course, the Supreme Court is not bound by its previous rulings, so it might be possible to persuade it to change its mind, but it very rarely does so, and it’s hard to see that it would do so on this occasion.
“That would then be a barrier to the introduction of another referendum bill into Holyrood, as the minister or member in charge would have to make a statement that the bill is within competence.
“I cannot imagine that the Lord Advocate would be prepared to agree to that for a Government bill. A member might be prepared to do so, but would in all likelihood then be faced with a negative presiding officer’s statement.”
Alba have been asked for comment.
