UK Supreme Court to hear full arguments in IndyRef2 case

The UK Supreme Court has confirmed it will hear full arguments on 11 October 2022 about whether or not it is lawful for the Scottish Parliament to enact legislation providing for another independence referendum.

The key legal question

As we set out in our article of 12 July, a draft Scottish Independence Referendum Bill was published on 28 June 2022.  That Bill set out the SNP’s route map to holding a lawful second referendum on the question of Scottish independence.

The question that has already been the topic of close analysis, from a constitutional law perspective, is: what is the legal basis for holding a second referendum on Scottish Independence?

As we have previously explained, the Scottish Parliament has primary legislative powers, i.e. the power to pass Acts, on any devolved matter.  Schedule 5 to the Scotland Act 1998 sets out the matters that are reserved to the UK Parliament.  One of those matters includes the constitution. This means that the Scottish Parliament cannot pass primary legislation that would alter the constitution of the UK or Scotland.  The Scotland Act 1998 requires that a person in charge of a Bill (in this case the First Minister, who is introducing it to the Parliament) must state that in their view the provisions of the Bill would be within the legislative competence of the Parliament.  The Presiding Officer must then also, on or before the introduction of a Bill in the Parliament, decide whether or not in their view the provisions of the Bill would be within the legislative competence of the Parliament and state that decision.  In practice, the Minister introducing a Bill receives legal advice on whether that Bill is within legislative competence from Scottish Government lawyers.

The Lord Advocate, the Scottish Government’s most senior Law Officer, has indicated (in court documents setting out her position) that she “does not have the necessary degree of confidence” that the matter is within the devolved competence of the Scottish Parliament.

The current Prime Minister has indicated that no consent will be given by the UK Parliament to the holding of a second independence referendum at this time, so a Section 30 Order (the mechanism provided for in the Scotland Act 1998 that would clearly resolve any constitutional law constraints) will not be forthcoming.

In light of this, the Lord Advocate has referred the question of whether the draft Scottish Independence Referendum Bill “relates to” “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom” (Sch 5, Part I, para 1(b) and (c) of the Scotland Act 1998), having regard to its effect in all the circumstances” to the Supreme Court for a decision.

The Advocate General for Scotland, the senior Law Officer in Scotland for the UK Government, submitted papers to the court on 12 July 2022 setting out his intention to formally become a party to the case and indicating that he would present a preliminary legal argument that the Reference has been made to the UK Supreme Court prematurely.  This legal argument is expected to centre around the fact that the Bill has neither yet been introduced to the Scottish Parliament nor, consequently, been passed in its final form.

The Court process

The Court of Session has already grappled with such issues in a previous case.  In Keatings v Advocate General, the Inner House found that independence campaigner Martin Keatings’ action seeking a judicial determination of competence for the Scottish Parliament to legislate for a second referendum was hypothetical and premature. In particular, the court found that “A draft Bill has no legal status…” and “Only a provision of an Act can be outwith legislative competence (Scotland Act 1998 s 29(1)). The contents of a Bill cannot be, since a Bill has no legislative force.”

The UK Supreme Court is not bound by decisions of the Court of Session and a constitutional law issue has been raised that has significant implications, so the UK Supreme Court has indicated that it intends to hear both legal arguments on the preliminary point of whether the reference itself is premature and legal arguments on the substantive question at the same time.  Navigating the court procedures in this will minimise delay should the court decide that it is within its jurisdiction to determine the substantive issues.  The order from the court noted that “it is in the interests of justice and the efficient disposal of the proceedings that the court should hear argument on both issues at a single hearing”.

In the Keatings case, the judges in the Court of Session ultimately decided that case was “premature”, and declined to make a ruling – although Lord Carloway commented that “it may not be too difficult to arrive at a conclusion”.  It remains to be seen how the UK Supreme Court will approach matters.

Next steps

Harper Macleod LLP’s public law team will continue to keep a close watch on all developments with this case and wider constitutional and public law issues relevant to Scotland.

Meantime, please contact a member of our team for advice on constitutional and public law, judicial review or insights into how the question of Scottish independence or other constitutional and public law issues may impact you and/or your organisation.