Nicola Sturgeon’s Supreme Court bid on Indyref2 could be stymied by her own government’s lawyers

Nicola Sturgeon’s plan to get the Supreme Court to urgently rule whether she can stage her own independence referendum has been undermined after it emerged her government’s lawyers recently argued it must go through Holyrood first.

The First Minister has published a draft Bill for a “consultative” vote to be held on Oct 19 next year, and announced Lord Advocate Dorothy Bain has referred it to the Supreme Court for a quick ruling on whether the legislation was within her powers.

But her government’s lawyers argued last year in a major test case that the lawfulness of any Referendum Bill “depended on its terms when introduced and when passed” by MSPs as it could be amended during the parliamentary process.

They told the court of session that any draft legislation, as Ms Sturgeon unveiled on Tuesday, “might or might not represent the text ultimately introduced in or passed by the Parliament”.

SNP government lawyers made the argument as they opposed a case brought by Martin Keatings, an independence campaigner, who asked the court to rule whether Holyrood had the power to stage a referendum without the UK Government’s consent.

They won the case in February last year after the court agreed with them that the question was “hypothetical” as it was an “act, as passed by the Scottish Parliament, that would require to be scrutinised as to its legislative competency”.

A potential catch-22

Scotland’s most senior judge, Lord President Lord Carloway, ruled: “A draft Bill has no legal status. If a Bill is introduced, it may or may not be in the form which is contained in the draft. No matter what its initial form, it may be amended.”

In a potential catch-22, Ms Sturgeon cannot even lodge her draft legislation at Holyrood unless Ms Bain, her most senior law officer, agrees it is within the Parliament’s powers.

UK government insiders believe the First Minister’s failure to table the Bill this week is an admission that Ms Bain thinks it is unlawful as constitutional affairs are reserved to Westminster.

Ms Sturgeon’s back-up plan to use the next general election as a “de facto referendum” has been discredited, with academics pointing out that voters will cast their ballots on a variety of issues rather than just separation.

It is understood that the UK Government is aware of the arguments SNP ministers made in the Keatings case on the need for a Bill to be passed and believe the Supreme Court may consider them when deciding whether to accept Ms Bain’s reference.

They emerged after Prof Alan Trench, an eminent constitutional academic, warned this week the court would refuse to consider the Bill until it had been passed by MSPs.

Aileen McHarg, professor of public law and human rights at Edinburgh University’s Centre on Constitutional Change, on Friday said the Lord Advocate’s reference to the Supreme Court was a “clever move” but also raised doubts about whether it would be accepted.

She said on the only two previous occasions the reference procedure had been used, both times by the Attorney General for Northern Ireland, the Supreme Court had refused to accept it.

Although she said there were differences with Ms Sturgeon’s draft Referendum Bill, she said lower courts in both England and Scotland had refused to rule on “hypothetical cases” on devolved powers.

She said they had instead insisted “that challenges be brought to particular pieces of legislation actually passed or enacted by the devolved legislatures using the statutory procedures specifically designed for that purpose”.

If Ms Bain ruled the Bill was within Holyrood’s powers, the Advocate General for Scotland, Boris Johnson’s most senior advisor on Scots law, would have four weeks after it was passed by MSPs to challenge its competence in the Supreme Court.

Prof McHarg said the court “may be reluctant to open up a new mechanism for testing the competence of proposed rather than actual Bills” by accepting the Lord Advocate’s reference.

A Scottish Government spokesman said: “We are considering with the court and the other parties publishing details of the arguments now the court proceedings are under way. We are not going to comment on the arguments meantime as they are before the court.”