Does the Scottish Parliament have the legislative competence to pass a Referendum Bill? And should judges answer this question now? The Supreme Court returned to its scrutiny of these two questions on Wednesday morning with Sir James Eadie’s submissions on behalf of the UK Government.
You may recognise Eadie. He rejoices under the professional title of “Treasury Devil,” and is a senior adviser to the UK Government on the knottiest legal problems it encounters. He has represented the British government in some of the most high-profile cases which have reached the Supreme Court in recent years, including the 2019 challenge to Boris Johnson’s unlawful attempt to prorogue the Westminster Parliament to get his Brexit proposals over the line. You win some, you lose some I guess.
If you judged Eadie’s arguments purely on length, then you might conclude his clients in Whitehall are particularly keen for the Supreme Court to refuse to decide whether or not Holyrood can call an independence referendum.
This might strike you as an extraordinary waste of time, billable hours and human industry – but it seems to be the UK Government’s preferred outcome. But why?
Why do the Tories think this is their best-case scenario?
There’s a real legal controversy here. Uncertainty about this issue has “festered” away for years, as the Lord Advocate observed in her closing argument. I’ve lost count of the number of articles I’ve written about it over the last decade. Why defer a confrontation with the inevitable? Why refuse to answer a question we know the courts will have to answer eventually?
Eadie has some technical points, suggesting that Dorothy Bain is effectively trying to side-step the protocols set out in the Scotland Act for the scrutiny of legislation. He also raised the slippery slope argument. If Lord Reed and his colleagues decide to answer Dorothy Bain’s question, he submitted, then Scottish law officers might end up firing hypothetical questions at the Supreme Court “willy nilly,” “farming out” its legal work to the court rather than taking responsibility for their own decisions.
Bain clearly didn’t much care for Eadie’s insinuation – to put it mildly. As the Lord Advocate pointed out in rebuttal, this is the first time this power has been used in over 20 years of devolution. It wasn’t “raised on a whim.” There’s no cause for “belittling and minimising the enormity of this issue,” she said.
But with a little cynicism and a dose of low animal cunning, you can follow the political calculations which informed Eadie’s courtroom strategy. First, if the court declines to make a substantive ruling, the political spin writes itself: “Supreme Court snub Sturgeon in Scotland Act shocker.”
The story then won’t be the anti-democratic arguments advanced for the British government – and their attempts to stymie a poll people have voted for. Instead, the opposition will be presented with a golden opportunity to attack the competence of the devolved administration and imply this process was a vast waste of public money for which the Scottish Government can be blamed.
More than that, the UK Government may be gambling on the idea that returning the issue to Holyrood with all of the fundamental legal uncertainty unresolved means the SNP will be effectively snookered by the contradictions this referendum process was designed to resolve.
If the Lord Advocate won’t sign off the bill as within Holyrood’s powers, and the Referendum Bill can’t be introduced unless she signs it off – the threat of a referendum will be once again deferred, until pro-independence politicians work out some way of bringing the proposal onto the floor of Parliament. There are obvious options, as far as it goes. They can either put the bill it into the hands of a backbencher who doesn’t benefit from the legal advice of law officers – or Nicola Sturgeon could amend the Ministerial Code to clarify the distinct roles of the Lord Advocate and the minister in charge of the bill. But things will get messy.
If the latter course is taken, expect that too to prompt opposition blowback, notwithstanding the fact that the Lord Advocate has herself pointed out that it isn’t “constitutionally appropriate” for her to act as a final court or “arbiter” of whether a proposal is within Holyrood’s legislative competence. The law requires the minister in charge of the bill to say they believe a proposal would fall within competence – not the law officers.
People sometimes assume the law is always clear and straightforward – but it isn’t. Particularly constitutional law. And even the best lawyers can get the law wrong, or fail to anticipate an important objection or challenge which life in its infinite diversity throws up. The framework we have at the moment fails to recognise this.
So that, I think, is the readthrough, and why Eadie’s case was so focused on getting the case kicked at the threshold. This outcome would cause the SNP-led administration in Edinburgh the biggest headaches. But the court gave few clues during oral argument today about where it is leaning.
Uncertainty as hearings come to an end
As the five judges head home to contemplate the legal arguments they’ve heard over the last two days – and the briefs hit the bar and wonder what arguments have landed and what missed – I’m struck by the different layers of uncertainty we face about what the outcome might be, and how different political actors can and will react to the potential outcomes.
The first possibility is that the judges have been persuaded that “now is not the time” to answer the question the Lord Advocate has tried to put before the court. If so, the ball will be knocked back into Holyrood. Then we’re left twiddling our thumbs till the bill passes, the UK Government intervenes, and the issue returns to the Supreme Court for a second time, retreading all the arguments and reheating the submissions the court has already heard over the last couple of days.
Alternatively, Lord Reed and his colleagues may take a different view – and offer an answer to the more fundamental question in play here: Does an advisory referendum “relate to a reserved matter” or not? If they find the proposed referendum does trespass into reserved matters, how will the Scottish Government react? If they find the proposed referendum doesn’t trespass into reserved matters, how will the UK Government react?
Will they let the bill progress unmolested through Holyrood? Will they exploit ideas of parliamentary sovereignty to spike the referendum, whatever conclusion the Supreme court reaches? Or will they settle on the boycott policy Scottish Tories have been threatening for a while? Or will they decide instead to engage in a constructive and meaningful way with a democratic process which not only delivers a manifesto commitment supported by a majority of MSPs, but upheld as lawful by the UK Supreme Court? Packing away the legal files, this is the end of the beginning. For the rest? Who knows. Let’s see.