Supreme Court to hear full argument in referendum case

The UK Supreme Court has declined a request to dismiss the Lord Advocate’s reference on the competence of the proposed Scottish Independence Referendum Bill without hearing argument on the legal issues raised.

Dorothy Bain QC, the Lord Advocate, made the reference because she was not sufficiently confident that Holyrood has the power to legislate even for a consultative referendum without the consent of the London Government, to advise that the bill could properly be introduced. Opponents of the proposal argue that it is premature to ask the court to consider the question before the final form of the bill has been passed by the Parliament.

The UK Government, through an initial response from the Advocate General for Scotland, Lord Stewart of Dirleton QC, had moved the court to “file written cases restricted to the question whether the court can or should accept the reference”. However the court has now advised both sides that it will consider the question of prematurity at the same time as it examines the substantive issue.

The court gave as its reasons: "Since the issues of (a) whether the court should accept the reference and (b) how the court should answer the question referred will both require consideration of the circumstances giving rise to the reference and the substance of the question referred, it is in the interests of justice and the efficient disposal of the proceedings that the court should hear argument on both issues at a single hearing."

Both Governments have been given until 9 August to submit their written arguments. A full hearing is expected to take place during the autumn. 

The Scottish Government has set 19 October 2023 as the date for the referendum if the bill is ruled to come within Holyrood’s powers. If the court rules against the bill, it will attempt to make the next general election a “de facto referendum” on independence.