The Supreme Court is to rule on the power of the Scottish Parliament to hold an independence referendum.
The Lord Advocate has sent a possible bill back to hold a vote next year in the UK Supreme Court to see if such a decision falls within Holyrood’s legislative jurisdiction.
There are several possible outcomes to the case.
– The Court declares that the referendum falls within the legislative competence of Holyrood
The Scottish government has said that if a referendum is within reach of the Scottish Parliament, a bill will be tabled and likely passed given the agreement between the SNP and the Scottish Greens.
Unless there is a problem, a vote would take place on October 19 of next year.
But, according to legal expert Dr Andrew Tickell, the British government and other opponents of the separation would not be powerless to prevent a new vote.
“Even if the Scottish government wins and has the option of pushing a bill through Holyrood, that’s not the end of the story,” he told the PA news agency.
“Is (the UK government) going to block it using its majority in the House of Commons? They could do it under the law.
Dr Tickell added that the possibility of a boycott by opposition parties to any referendum “would create a whole range of interesting implications”.
Scottish Conservative leader Douglas Ross has been the main proponent of such a strategy, but its use would cause problems for Scottish Labor.
– The Court rules against the Scottish Government
If the court decides that Holyrood cannot hold a referendum, hopes of a vote without Westminster’s consent are dashed.
The Scottish Government will be forced to continue pushing for a Section 30 order that would give Holyrood the powers to call another vote.
– The court refuses to rule on the dismissal
One of the more interesting possibilities would be for the court to decide not to rule on the dismissal because the bill was not passed by Holyrood – a key part of the UK government’s argument against the dismissal.
In such a situation, a number of different options are open to the Scottish Government.
Constitutional law professor Adam Tomkins, who served as a Tory MP in the last Parliament, said he saw that option as the most likely.
“Scottish law provides for a system of referral of legislative jurisdiction of bills passed by the Scottish Parliament to the Supreme Court after they have been enacted,” he told the PA news agency.
“In this case, not only has the bill not been passed into law, but it has not even been formally presented to the Scottish Parliament – it has not been debated by the Scottish Parliament, it has not been amended by the Scottish Parliament, we didn’t have stage one or stage two or stage three.
Prof Tomkins said Lord Advocate Dorothy Bain KC was asking the court to rule on “a hypothesis”.
In the submission to the Court, Ms Bain said she was making the referral under paragraph 34 of Schedule Six to the Scottish Act, which states: ‘The Lord Advocate, Attorney General, Solicitor General or The Solicitor General for Northern Ireland may refer to the Supreme Court any matter of vesting which is not the subject of a proceeding.
First, they could push the legislation forward and fight a challenge to the Supreme Court after it passes – but that would likely result in Ms Bain resigning, Prof Tomkins says, making the approach the least likely.
In her submission to the court, the Lord Advocate said she “did not have the necessary degree of confidence” that the legislation fell within the powers of Holyrood.
Alternatively, Ms Bain could change her position on the jurisdiction of the legislation.
Second, the Scottish Government could amend the Ministerial Code to say that in most cases the Lord Advocate should treat the Bill as within the jurisdiction of the Scottish Parliament, thus allowing the legislation to be introduced.
“It’s the ministerial code that says when ministers make that statement they must act on the advice of the Lord Advocate,” said the former Tory MSP.
Professor Tomkins added that such a change could cause ‘a lot of noise’, but it would be ‘perfectly reasonable for Scottish ministers to change their own ministerial code to normally say that a (declaration of competence) must be made on the basis of Lord Defending advice, but these are not normal circumstances”.
Or finally, the Scottish Government could send the Bill to a senior member of the SNP to introduce, given the less stringent legal requirements of MPs’ Bills.
– The court rules that the referral is not within the powers of the Lord Advocate but responds anyway
As was done with a legal challenge over abortion in Northern Ireland in 2017, the court could decide to answer the substantive question, while also accepting that the Lord Advocate has no power to dismiss the project. of law to the Court.
Any decision made in such a situation, Dr. Tickell said, would not be legally binding, but would likely be treated as such.
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