Judges sitting in the UK’s highest court have been told Westminster is the ultimate authority on Scotland’s future because the issue of Scottish independence is of “critical importance” to the future of the UK.
Sir James Eadie KC, a senior lawyer acting for the UK government, said the union between Scotland and England was “the constitutional foundation of the modern British state”, and mattered to everyone in the UK.
“The impacts and effects of Scottish independence would be felt throughout the UK; all parts of the UK have an interest in that issue, not just Scotland. It is obvious why this is reserved to the UK parliament,” Eadie told the court.
He added: “It is of critical importance to the UK as a whole; the union is the constitutional foundation of the modern British state and it would be fundamentally at odds with the purpose of devolution to grant powers to the Scottish parliament within the union.”
Eadie’s submission came on the second day of an unprecedented hearing at the supreme court into whether Holyrood had the legal authority to run a referendum next October on Scottish independence without Westminster’s approval.
His remarks are likely to infuriate Scottish ministers and independence campaigners who say Scotland’s future is solely a matter for Scottish voters. It may also fuel demands from radical independence campaigners for a wildcat referendum.
Nicola Sturgeon, Scotland’s first minister and the Scottish National party leader, has made the democratic right to self-determination central to her case for staging a second referendum, nine years after losing the 2014 independence referendum.
She told MSPs in June that without that autonomy, Scotland would remain “a prisoner” to Westminster and to Conservative prime ministers.
The 2014 referendum was staged after the then Tory prime minister, David Cameron, gave Holyrood the temporary powers to hold it. Since then, his three successors have repeatedly refused to do so again.
Dorothy Bain KC, Scotland’s top law officer and the lord advocate, told the court on Tuesday the SNP had won consecutive Scottish and UK elections on manifesto pledges to pursue independence. The current Scottish parliament has a majority of pro-independence MSPs.
Bain told the court the independence question was of “exceptional public importance to the people of Scotland and to the people of the UK. It is central to a manifesto commitment endorsed by the people of Scotland.”
The judges are looking at two questions: can a draft bill that has not yet been scrutinised, amended and passed by MSPs be ruled on by the supreme court? And is this bill a breach of Holyrood’s limited powers?
Bain argued that a proposed referendum bill should be allowed to proceed at Holyrood because it is neutral on the question of independence, and is only concerned with the organisation of a referendum; it is also non-binding, so has no legal effect.
She also argued the Scotland Act 1998 allows the lord advocate to get the UK supreme court’s opinions on “devolution matters”, on what the limits of the Scottish parliament’s powers are.
Eadie said Bain’s case “fails at almost every analytical stage”. It was wrong on the provisions of the 1998 act, on case law and on using common sense; the case law was absolutely clear that the court could only offer its view on the legality of legislation once it had been passed by a parliament.
As she finished her submission, Bain attacked Eadie’s “unfair” tone and language, accusing the barrister of “belittling and minimising the enormity of this issue”. It was not a small, academic topic but one of great constitutional significance. “It’s just not right,” she told the court.
Eadie said earlier that Bain’s refusal to grant the draft bill a certificate of legal competence earlier this year, because she was unsure it was constitutionally safe under that act, made it clear her case was dubious legally.
He dismissed Bain’s claim the bill was constitutionally neutral; he said Sturgeon had repeatedly made clear she wanted the court to “pave the way” for a referendum intended to deliver independence.
The proposed legislation was “solely and squarely about the union”; that was clearly in breach of the act.
Lord Reed, the president of the court, said on Tuesday it would take the five judges hearing the case “some months” to produce their decision. He said they had more than 8,000 pages of material to consider.
