Scottish independence referendum bill heads for Supreme Court showdown

Out-Law News | 30 Jun 2022 | 3:46 pm | 1 min. read

Nicola Sturgeon’s announcement that she has written to Boris Johnson to negotiate the terms of a ‘section 30 order’ to hold a legal referendum on Scottish independence sets the stage for a showdown in the UK Supreme Court, according to one expert.

Scott Wright of Pinsent Masons said the first minister’s statement to MSPs “brings the prospect of a referendum into clear focus”. But, he added, “should the prime minister refuse her request, questions remain over the Scottish parliament’s competence to legislate on the matter alone.”

In her statement, Sturgeon said that the Scottish government has a democratic mandate to hold a referendum and reiterated that it should be respected by the UK government, adding that any referendum must be “legal”, “above reproach” and “command confidence”. The first minister said she had written to the prime minister requesting a ‘section 30 order’ under the 1998 Scotland Act – which would give the Scottish parliament the power to legislate for an independence vote.

Sturgeon also announced the introduction of the Scottish Independence Referendum Bill should the UK government resist her request, which sets out proposals for a “consultative referendum” to ascertain views on whether Scotland should be independent. The Bill sets a date of 19 October 2023 for a referendum to be held. Pre-empting a potential legal challenge to the legislation, the first minister said that she had asked Scotland’s Lord Advocate to refer to the UK Supreme Court whether the provisions within the Referendum Bill are within the legislative competence of the Scottish parliament.

Sturgeon said the Scottish government would then expedite the legislation through Holyrood, subject to the outcome of the Supreme Court’s findings. Should the Supreme Court find that the Scottish parliament does not have the power to legislate for an independence vote, Sturgeon said she would use the next general election as a “de-facto referendum” on whether Scotland should split from the rest of the United Kingdom.

Wright said: “This is obviously a significant announcement which brings independence and the prospect of a referendum into clear focus. However, there continues to be questions over the Scottish parliament’s competence to legislate on the matter – and whether opposition parties would participate in a consultative referendum.”