The UK Supreme Court has been asked to decide whether Scotland’s parliament has the legal authority to hold a referendum on independence in the face of opposition from the UK government in London.
Eight years after Scots decided by 55 per cent to 45 per cent to stay in the union with England, first minister Nicola Sturgeon wants to hold another vote next year.
However, the government in London has said not enough time has passed since the last vote and prime minister Liz Truss has said she would not “allow” a rerun.
On Tuesday, the two-day hearing got under way with Dorothy Bain, Scotland’s Lord Advocate, asking the five judges hearing the case to “finally settle” the question of whether the devolved government in Holyrood can legislate for a referendum without agreement from London.
“I consider that the question of law raised by the proposed bill is one which is genuine and unresolved,” she said, referring to draft legislation on a vote published by the Scottish government in June.
“I do not consider that it is in the public interest that on an issue of law of this exceptional public importance to the people of Scotland and the UK, that I should in effect be the arbiter,” she added.
The British government believes the Supreme Court should only rule once a referendum bill has been passed by the Scottish government. Sir James Eadie, the UK’s lawyer, said the judges should not rule “in the context of a draft bill that hasn’t been taken to the Scottish parliament”.
“Courts don’t give advisory declarations in the abstract,” he added.
Lord Reed, president of the court, warned it may take “some months” before it gives a ruling, adding that it had more than 8,000 pages of written material to consider.
Even if she wins, a lengthy wait for the court’s decision may have implications for Sturgeon’s ability to meet her October 2023 target, as she would have a tight timetable to pass legislation and organise a campaign.
Analysts also said any vote held by Sturgeon would not be seen as legitimate unless it had the endorsement of both the UK government and unionist parties in the Scottish parliament.
“This recourse to the courts represents a failure of politics, as it demonstrates the inability or unwillingness of the Scottish and UK governments to find a way forward,” said Anthony Salamone, managing director of European Merchants, an Edinburgh-based think-tank.
He added that even if Sturgeon passed a new referendum bill, the UK government could refer simply refer it back to the Supreme Court.
Ciaran Martin, professor of practice in the management of public organisations at Oxford university’s Blavatnik School of Government who led the UK government’s negotiating team ahead of the 2014 referendum, said: “The case before the court is not about whether and how Scotland can become independent but a much narrower issue about whether or not Holyrood has the power to pass a law to organise a vote.”
The court “cannot compel anyone to take part in that vote, nor to act on its results. So whatever happens, even if the Supreme Court springs a surprise, this is ultimately a political issue, not a legal one and there’s plenty more politics to come, ” Martin added.
The hearing continues on Wednesday.
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