Britain’s highest court has been told the issue of Scottish independence is “alive and significant” and has been urged to authorize a new referendum next year.
Dorothy Bain KC, Lord Advocate and Solicitor General of Scotland, told the High Court on Tuesday morning that Scottish voters had consistently elected MPs and MSPs who supported independence.
She told the court that the Scottish Parliament should be allowed to hold the referendum without Westminster’s approval. She said the late Lord Mackay of Drumadoon, a former Lord Advocate and Scottish Court of Appeal judge, was right to say this was a “difficult question”.
She said: “It is a question I urge the court to finally resolve.”
Three successive Conservative prime ministers have refused to authorize a second independence referendum, arguing that only Westminster has the legal power to authorize one under the Scotland Act 1998 establishing the Scottish Parliament.
Bain will argue that the proposed referendum is advisory and, as the result will be non-binding on the UK government, it is essentially a government-run poll.
A total of five judges led by Lord Reed, one of two Scottish Supreme Court judges, who sits alongside Lord Lloyd-Jones, Lord Sales, Lord Stephens and Lady Rose, will hear arguments on the issue from Bain and UK government lawyers , chaired by Sir James Eadie KC, over the next two days.
Their final decision will have huge implications for Nicola Sturgeon’s nationalist government in Edinburgh and for Britain’s future.
If the court rules that it is legal for Holyrood to hold a referendum on independence – which the First Minister plans to hold on 19 October 2023 – Liz Truss, the Prime Minister, will face the real prospect of presiding over the dissolution of United Kingdom .
If the court rules against Sturgeon, she is expected to put Scottish independence at the center of the next UK general election by arguing that Scotland has an inalienable right to decide its future. Opinion polls show that most Scottish voters support this argument, more so than independence itself.
Opening the hearing, Reed said it could be “several months” before the court makes its ruling, revealing it had more than 8,000 pages of legal arguments and supporting documents to read. “This hearing is the tip of the iceberg,” he said.
The court will hear two challenges from lawyers for the British government. Eadie will first argue that the Scottish application should be rejected because it is a bill and, as it has not been passed by Holyrood, it has no legal standing.
If the court rejects this argument, Eadie will then argue that it is illegal for Holyrood to pass legislation affecting the union of Great Britain because all constitutional law is reserved to Westminster.
The British government points out that Bain earlier this year refused to confirm the bill as legally competent because she “did not have the necessary degree of trust” it was legal.
The UK submission to the court said the Scotland Act 1998, the legislation which devolved power to the Scottish Parliament, is quite clear on that point.
Although Scotland has its own legal system and an independent judiciary, the UK claims that Westminster is “the ultimate source of legal authority in Scotland. The secession of Scotland from the union would necessarily end this sovereignty in relation to Scotland.”
Opening the hearing, Reed said the Scottish application could be thrown out on the first point alone. It would leave open the question of whether it was lawful for Holyrood to hold an advisory referendum; Sturgeon could then try to push the bill through the Scottish Parliament and risk it being overturned by the courts at a later stage.
But the court could also decide that, although the bill has no legal status, the issue is so important that it will decide whether it contravenes the Scotland Act. If it does, the court’s final ruling on the legality of Sturgeon’s gambit will prevent her from ever presenting the bill at Holyrood.