THE outcome of the Supreme Court’s indyref2 case is not “obvious” and politicians and journalists claiming it is a done deal in the UK Government’s favour should remember previous mistakes, an expert on devolution has said.
Richard Parry, a political scientist and honorary fellow at the University of Edinburgh, said the law around whether Holyrood could hold a referendum on independence without Westminster consent was “uncertain”, and that assertions about how the UK’s highest court would rule were “not based on anything other than speculation”.
It comes as the Supreme Court deliberates on arguments heard earlier in October from the top law officers representing the UK and Scottish governments. Lord Robert Reed, the president of the court, said a ruling would likely take “some months”, with thousands of documents for judges to pore over.
Asked what he would gamble on the court deciding, Parry, who has written extensively about devolution and UK governance, declined to say.
However, he went on: “What I’m pretty certain about is that those who say on the UK side ‘it is obvious that an indyref2 bill passed by Holyrood wouldn’t be legal’, that isn’t true. It isn’t obvious.
“I would say be prepared for either outcome. I would refer people back to what they thought the outcome of the case on giving notice to leave the EU would be, and what people thought the outcome would be on the prorogation issue.
“On those two big [Supreme Court] cases … everyone thought the UK Government was going to win. They thought they were going to win, the journalistic assumption was that they were going to win, and they didn’t win. I just have a hunch that what you think is an obvious outcome isn’t obvious, it isn’t obvious at all.”
The devolution expert said the crux of the case is “not independence, it’s the ability to call referendums on reserved matters”.
Parry said it was “clear and accepted” that the Scottish Government has the power to hold referendums on devolved issues. He pointed to the Referendums (Scotland) Act 2020, which outlines how such votes are to be managed and who can participate.
In the SNP’s submission to the Supreme Court – made separately to those from the Scottish Government’s Lord Advocate and UK Government’s Advocate General for Scotland – it is argued that Holyrood can hold such votes on reserved matters as well.
After highlighting how “internet services” are reserved, the SNP’s argument goes on: “It cannot reasonably be suggested … that the Scottish Parliament is not permitted to legislate on anything related to websites … or to ask a question of the electorate about upgrading broadband infrastructure. Such an outcome would be patently absurd.
“That being the case, it is unfathomable for one heading under schedule 5 [of the Scotland Act, which outlines reserved matters] to be held to a different standard than is applied to others.”
The SNP case draws its “focus on the requirement to construe the Scotland Act 1998 in accordance with – rather than contrary to – the right of all peoples to self-determination”.
The party’s legal submission argues that if “there is no way in which to exercise a right, it is no right at all”.
Parry suggested that an unwillingness to tell the Scottish people what they could and could not do was behind the UK Government’s failure to legislate to make the question of indyref2 competence clear, either during devolution in the late 90s or later.
There has also been the suggestion from Cambridge academics Shona Wilson Stark and Raffael Fasel that the Supreme Court should take the constitutional impact of democratic mandates from Scottish elections into account in its ruling.
The pair said the court should declare “the UK Government’s actions unconstitutional in a political sense because [they are] denying … democratic will-formation in contravention of an election manifesto pledge”.
However, Parry – who previously questioned whether the Supreme Court would “go so far as to say that, under the present law, a legal, political route to independence can be withheld at the discretion of the UK government” – was dismissive of both of these arguments around democracy and self-determination.
He said: “At the end of the day, the court will say ‘all we do is interpret the law’. The point about it is if you’re a judge in the Supreme Court you do law day in and day out. Everything is about looking at the law.
“If you have that way of thinking about the issue, that’s a completely different way of thinking about it to the politicians and the journalists and the academics – outside the legal academics.”
“We’re not in the heads of the people of the Supreme Court and what may seem obvious is not obvious at all.”
