THE Supreme Court will hand down its judgment on whether or not the Scottish Parliament has the legislative competence to hold a referendum without Westminster’s consent - but there are several ways the ruling could go.
Nicola Sturgeon asked Lord Advocate Dorothy Bain to refer the case to the UK’s highest court in an attempt to break the constitutional deadlock, because every Tory prime minister since 2014 has refused to grant a Section 30 order to allow the vote to go ahead.
The five justices will decide whether or not the Scottish Government’s draft referendum bill - which has not made its way through Holyrood yet - is within the parliament's legislative competence.
Last month, Bain, Scotland’s top law officer, and James Eadie KC, on behalf of the UK Government, argued their case during a two-day hearing.
While Bain insisted that the political implications of the legislation are “irrelevant” when it comes to the decision of “exceptional importance”, Eadie spent the majority of his time in the court arguing that the case should be thrown out.
And now, on Wednesday morning, Scotland will finally find out if indyref2 will be held in October next year.
What are the legal questions the court has been asked to rule on?
THERE are two points that justices were asked to rule on. The first hurdle is whether or not the Supreme Court judges feel that they can rule on the reference when the Referendum Bill is still in draft form.
Eadie argued during the hearing that as the legislation hasn’t been scrutinised by MSPs it is at too early a stage for the court to offer a ruling.
The UK Government’s representative spent over two and a half hours arguing this point, and claiming that the Scottish Government “didn’t like” the initial answer they had been given by the Lord Advocate around the competence of the bill.
If justices agree that they can rule on the reference, then they will decide on whether or not Holyrood has the legislative competence to pass the bill, as it relates to a reserved matter under the Scotland Act - the constitution.
What rulings could be handed down by the justices?
THIS isn’t a simple yes or no - there are several ways the ruling could go. First, the justices could agree with the UK Government’s argument and decide that it is too early to rule on the reference and refuse to engage in any of the substantive arguments around Holyrood’s powers to legislate for a referendum. This would buy the UK Government more time, but arguably leave us back at square one.
If the court decides that they can rule either way on the reference then it means there will be a clear cut answer on whether or not the bill is within Holyrood’s powers.
But there is another option - the Supreme Court may decide that it isn’t within the Lord Advocate’s powers to make such a reference but will give a decision anyway. This happened previously over abortion prohibition in Northern Ireland in 2017.
Should we read into the speed at which justices reached their conclusions?
Supreme Court President Lord Reed said in October that it may take “some months” for the justices to come to a decision and review over 8000 documents.
Just six weeks after the case was heard, we are now expecting a decision - but what does that suggest? As Andrew Tickell pointed out in this week’s Sunday National: “One reasonable inference might be that the court hasn’t struggled to reach a conclusion here.”
What happens next?
If the Supreme Court says it's too early to give a verdict then there are a number of options for the Scottish Government. They could ask a backbench MSP to lodge a bill, as it requires less scrutiny than government legislation, otherwise, the First Minister could amend the ministerial code to allow a minister to bring the bill forward without the Lord Advocate’s sign-off.
Or, Bain would have to change her position and sign off the referendum bill as within Holyrood’s competence. It’s likely that if this does occur then the UK Government would challenge the legislation in its final form, sending the question back to the Supreme Court.
If the court rules that the bill is within Holyrood’s competence then it’s the starting gun for the Scottish Government to introduce the legislation, with half of the current parliamentary term still left to go and with the SNP-Green cooperation deal securing a majority of pro-independence MSPs, it would sail through in time for the vote to be held in October 2023.
If the court rules it is outwith the legislative competence, then there is no route for the Scottish Government to appeal, and the First Minister has said she will fight the next General Election, expected to be held in 2024, as a one-issue vote and a de facto referendum.
The National will have all the latest news, insight, and insider gossip as the decision unfolds.
You can read some of our exclusive coverage as the Yes campaign gears up for the latest installment of the constitutional showdown here:
- The key arguments in the Supreme Court on day one of the indyref case
- UK Government calls for independence case to be thrown out
- Behind-the-scenes at the Supreme Court: Douglas Ross slinks out as Alex Cole-Hamilton doubts Yes chances
- How The National will be covering the Supreme Court's indyref2 ruling
- Andrew Tickell: Yes, no, maybe– how the Supreme Court ruling will play out
- Scots Tory MP refuses to say if UK will honour Supreme Court judgment
- Scotland-wide rallies to take place on day of Supreme Court verdict
