Why is the supreme court discussing the legality of holding a second independence referendum today? Scotland’s chief law officer, the lord advocate, Dorothy Bain, has referred to the court the question of whether the Scottish parliament requires Westminster’s consent to hold another referendum, at the request of the first minister, Nicola Sturgeon. Bain explained to the court on Tuesday morning that she would not be able to clear the referendum bill because she did not have “the necessary degree of confidence” that it would be within the competence of the Scottish parliament. Devolved parliaments cannot legislate on reserved matters, and the union of Scotland and England is reserved to Westminster. This is where the legal argument will kick in: while it may seem obvious that a referendum bill relates to the union, the Scottish government is arguing that the vote would merely be consultative, and not have any immediate consequences. Independence would be achieved through lengthy negotiations, as happened with Brexit. What is a section 30 order and why does it matter? The Scottish and UK governments have been in deadlock over the granting of a order under section 30 – the section of the Scotland Act that allows Holyrood to pass laws in areas that are normally reserved. Three Tory prime ministers have refused Sturgeon’s request to grant her one. Such an order was granted for the 2014 referendum, under the Edinburgh agreement, which Sturgeon herself has described as “the gold standard”. Without it, opponents argue that a referendum would be illegal and unenforceable. But in June, Sturgeon wrongfooted critics by announcing that she had directed her lord advocate to take the question to the supreme court rather than waiting for a challenge further down the line from the UK government. What arguments will the court hear? Bain argued on Tuesday that there was no consistent practice over the use and legal effect of referendums in the UK, and that it was for the supreme court to bring “certainty and clarity” on an issue of “exceptional public importance”. Since her appointment as lord advocate in 2021, she has taken a radical approach to drug policy, encouraging police to issue warnings rather than charge those caught in possession of class A drugs, and ordered an immediate review of the prosecution of sexual violence in Scotland. She will argue that a referendum in this case will be consultative and thus within the powers of Holyrood to legislate for. The UK government will argue the direct opposite – that all constitutional law-making is reserved to Westminster – and that the application should be rejected because it is a draft bill with no legal standing. Its lead lawyer, Sir James Eadie KC, represented the British government in the supreme court case to determine the legality of Boris Johnson’s prorogation of parliament, arguing that the decision to suspend the Commons was not one for the court to decide on. What happens if the court rules in favour of the Scottish government? Sturgeon has said she wants to hold the next referendum on 19 October 2023. The UK government could block this by altering the legislation, but this would be an immensely provocative act likely to meet hefty opposition and boost support for independence. There have been threats of a boycott by unionist parties and voters. According to recent polling, support for independence continues to hover around 50%, although supporters argue that a fresh campaign is needed before numbers shift significantly.
What happens if the court rules against the Scottish government? Sturgeon told her party conference, on Monday, that if this were the outcome “we will respect that judgment”. She added that the Scottish National party, and the wider independence movement, would reflect, but that it would leave her with no choice but to “put our case for independence to the people in an election”. There remain many unknowns around how this would operate in practice, whether success would be measured as more than 50% of the vote for the SNP, or for all independence-supporting parties. When is the supreme court likely to decide? In his opening remarks, the supreme court president, Lord Reed, noted that the hearing was the “tip of the iceberg”, explaining that the five judges had 8,000 pages of written submissions to assess, and warned that it was “likely to be some months before we give our judgment”.