Category: Constitutional Law

Will the United Kingdom’s constitutional excitements ever stop?

25th November 2022

The nights draw in, as another year comes to an end.

2022 will soon be over.

Yet, it does not look like the constitutional excitements in the United Kingdom will lessen.

The main opposition Labour party has opted to raise the issue of House of Lords reform or replacement; the third-largest party in the House of Commons – the Scottish National Party – are committed to somehow gaining independence for Scotland, despite (or because of) the Supreme Court judgment this week ruling out a unilateral referendum; and in Northern Ireland the shared power arrangements have long broken down, and there is a real prospect of a border poll.

And that is before we even come to the government of United Kingdom, with its various avowed intentions: to break international law by statute with a Northern Irish Protocol Act; to restrict the right to protest; to repeal the Human Rights Act and replace it with laws to make it more difficult to rely on human rights law; and to suddenly get rid of remaining European Union law without regard to what it does and what impact repeal would have.

This is not a happy polity.

Some of these issues – Northern Ireland and Scotland – are about serious fault-lines in our constitution, and these will need to be addressed, if not resolved.

Others are the sort of self-inflicted, unforced errors that are a feature of our current somewhat frenzied political culture.

But none of these are directly about the social and economic predicament of many of the people in the United Kingdom, or directly about health or education.

Or directly about the war in Europe or the energy crisis.

(Please note the “directly” before you type out comments saying “Actually there is a relationship…”.)

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As this blog has averred many times, constitutional law should be dull.

This is not because constitutional law is unimportant – it is fundamentally important.

It is because constitutional law sets the parameters of everyday political (and legal) action.

If those parameters themselves become the constant issue then there will be inefficiencies in that everyday political (and legal) action.

Few if any people want to watch a sporting contest where there are continual arguments with the referees and umpires, and eternal confrontations with the governing bodies.

Similarly, constitutional matters – that is, how public bodies get along and resolve tensions, or the boundaries between officials and those who are governed – are not themselves interesting to most normal people.

The opportunity cost of this post-Brexit preoccupation with constitutional matters, and this government’s infantile obsession with stoking culture war issues, is that insufficient thought and effort is going into many other areas of public policy.

These are the sorts of policy topics – the economy, welfare, defence – that should be the priority for public debate and political scrutiny.

Yes, from time to time, serious constitutional matters need to be attended to – and the futures of Scotland and Northern Ireland, and the relationship with the European Union – require careful consideration and realistic arrangements.

But otherwise our body politic seems rather worn out, and it needs a rest.

Our body politic cannot always be in a brace, brace position.

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Do referendums now have a special constitutional status? And has the Supreme Court made it far harder for the UK government to ignore the results of any further “advisory” referendum? Some fascinating passages in today’s Supreme Court judgment

23rd November 2022

This morning the United Kingdom Supreme Court gave judgment in the reference made by the Scottish government about whether the Scottish Parliament could legislate for a non-binding referendum on Scottish independence.

This post is not about the specific issue of the Scottish independence referendum, which I have commented on at the Financial Times.

This post is instead about some fascinating passages in the judgment about referendums.

By way of background, the usual position is that there is a binary: on one hand there is parliament, and on the other hand there are extra-parliamentary exercises, such as referendums and consultation exercises.

These extra-parliamentary things are usually seen as advisory.

Sometimes there is an exception – the electoral reform referendum would have had a direct legal effect had a majority supported change.

But generally, referendums and such like are glorified opinion polls.

Any mandate is political, not legal.

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In today’s judgment, a unanimous Supreme Court seems to have put forward a different view (which I have broken up into sentences for flow and added bold for emphasis):

“78. The effect of the Bill, however, will not be confined to the holding of a referendum. Even if it is not self-executing, and can in that sense be described as advisory, a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion.

“It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion. Its importance is reflected, in the first place, in its official and formal character.

“Statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.

“79. That legislative framework is put in place because the result of a lawfully held referendum is a matter of importance in the political realm, even if it has no immediate legal consequences.

“That has been demonstrated in practice by the history of referendums in this country, and has also been recognised by this court.

“For example, in relation to the 2014 referendum on Scottish independence, Lord Hodge stated in Moohan v Lord Advocate […] with the agreement of the majority of the court, that “the referendum is a very important political decision for both Scotland and the rest of the United Kingdom”.

“In relation to the 2016 referendum on leaving the European Union, the majority of the court stated in R (Miller) v Secretary of State for Exiting the European Union […] : “[T]he referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.”

[…]

“81. A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom Government had not given any political commitment to act upon it.

“A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.

“The clear expression of its wish either to remain within the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement.

“It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.”

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With regard to these “important political consequences”, the Supreme Court held that such a non-binding referendum would “in all the circumstances […] relate to” the reserved matters of the Union and the sovereignty of parliament, even if the referendum was not legally binding.

In particular, the Supreme Court emphasised that “statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.”

A dedicated referendum, under a dedicated statute, is not to be taken lightly.

The key point in these passages is that “a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion”.

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The import of this judgment would seem to be that dedicated referendums set up by statute now occupy an intermediate position in the constitution of the United Kingdom.

They do not bind parliament (or presumably the courts), but they are not mere opinion polls either.

Such referendums and their results are, as a judge may say, “seen”.

The results of these referendums have a force which, even if not legally binding, is legally recognised and which may, in certain legal cases, make a legal difference.

Perhaps this may have implications in certain legal cases where there are “legitimate expectations” that a public body will act or not act in a certain way.

Perhaps it may have implications for what will follow a border poll in Northern Ireland, or in a further Scottish independence referendum.

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To an extent this is a judicial statement of the obvious political reality of referendums – but it is significant for it not only to be expressly acknowledged in a judgment but also (via “all the circumstances”) to have made a difference in this case.

Special referendums now appear to have a special constitutional status.

They matter and their results will be judicially recognised – even, as the Supreme Court expressly said here, if the United Kingdom government has not given any political commitment to act upon them.

If so, let us see what happens with the next one – that is, if there is a next one.

The consequential litigation may be fun.

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For and against changing the electoral system

27th October 2022

Here is a brief post on a constitutional topic that I have avoided on this blog: the electoral system.

This is a topic on which many of you will have Very Strong Opinions – and, as with a codified constitution and membership of the European Union, it may be difficult for you to comprehend why someone could possibly not be in favour.

But.

The value, at least for me, in the current system is twofold.

First, I think there is merit in one person being the representative for a distinct, meaningful area – for example, Birmingham Edgbaston, or the Isle of Wight, or the Western Isles, and so on.

This is especially so given the convention that Members of Parliament refer to each other by their constituencies.

It means that parliamentary debate is itself a congress of places and local identities.

One member constituencies also mean we have by-elections, which provide a form of accountability between general elections that can be surprisingly effective – for example, Johnson’s fall from office followed two huge by-election defeats.

Second, many systems of proportional representation seem to give disproportionate power to party lists and party managers, breaking the direct link between the voter and the candidates.

But, but.

Those two factors are not overwhelming, and perhaps can be offset by other factors.

It cannot be right for certain parties, such as the Green Party, to have so low a parliamentary presence given their national share of the vote.

The current party system is also somewhat artificial, and the parties are themselves faction-ridden coalitions kept together by the needs of the electoral system, and this just causes different political problems – as we have seen with both the Conservative and Labour parties in recent years.

The current system has not even avoided hung parliaments – for example, in the late 1970s, the mid 1990s, and between 2010-15 and between 2017-19.

And the powers of party managers and party lists is just exercised in different ways, with certain candidates benefiting from safe seats.

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So my mind is not made up, and recent experiences have tested my assumptions in favour of the current system.

(I do not have Very Strong Opinions on every constitutional issue!)

Can a case be made for electoral reform which (a) does not involve name-calling of those opposed, (b) keeps the geographic links without giving party lists and managers too much power, and (c) keeps the possibility of by-elections as a potent political device between elections?

I open to persuasion – and so may be many others who have hitherto been wary of electoral reform.

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Re-visiting the “codified constitution” debate after the Johnson and Truss premierships

26th October 2022

From time to time it is worth revisiting the question of whether we should have a codified constitution.

For many the answer is self-evident.

Indeed, one sometimes cannot imagine a political situation in the United Kingdom where somebody, somewhere would not add “and this shows why we need a written constitution”, as if it were some universal panacea.

The view of this blog, as you may know, is more sceptical.

There is nothing inherently good or bad about a codified constitution: the test is is whether the constitution is liberal or illiberal.

In other words: whether or not the constitution tends to permit unchecked and unbalanced executive, judicial or legislative power.

Those constitutions which do not check and balance such powers tend to be illiberal, and those which do tend to check and balance such powers tend to be liberal.

The test, for me, of a constitution is not whether it is codified or not, but whether it is liberal.

And if we were to somehow have a codified constitution it should be at least as liberal as the current uncodified constitutional arrangements.

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So: are our current constitutional arrangements liberal?

Some of you reading this will have Very Strong Opinions – and are undoubtedly and impatiently scrolling through this irksome post.

But.

Take a moment.

Here are three counter points to consider.

First, during Brexit, the Supreme Court twice stopped the executive from acting against the rights of parliament, in the two Miller cases.  And parliament itself was able to legislate for the Benn Act in the face of opposition from the executive.

Second, since 2016 the body politic has been able to regurgitate and spit out a sequence of Prime Ministers and other ministers who have been repugnant for one reason or another – Cameron, May, Johnson, Truss, and so on.

And third, and notwithstanding the nominal overall majority, we have ended up with, in effect, a hung parliament anyway.

If we were to have a more rigid, codified constitution that entrenches executive power, none of these things may have been the case.

We could, like in the United States, be stuck with a Trump-like politician for a term with only the clumsy and practically useless weapon of impeachment.

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That said, there are problems.

For example – yes, we have been able to spit out a succession of repugnant politicians, but it is hardly to the credit of our constitutional arrangements that we have had such figures becoming Prime Minister in the first place.

And we are still only one competent tyrant (and a parliamentary majority) away from the “supremacy of parliament” being used to create Enabling Acts conferring wide discretionary powers on minsters that courts will have to accepts as being unchallengeable.

Our constitutional arrangements may be liberal in some respects, but there is still the scope for abuse, as well as it providing a framework for inadequate politicians to take (as well as lose) powerful jobs.

And recent years have shown the limits of the “good chap” approach of ministerial self-restraint, with Johnsonian anything-goes.

The counter-case is strong.

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So there are reasons to be in favour of our current constitutional arrangements, but also reasons to be worried.

The next two years are, from a liberal and progressive perspective, likely to be grim – especially if the new Prime Minister and his cabinet are alert to avoiding the unforced errors of the last two Prime Ministers, and are able to “deliver” (ahem) their policy agenda.

We cannot always trust illiberal ministers to make easy mistakes.

And the next two years will be the real test of whether our constitutional arrangements are robust as well as liberal.

Brace, brace.

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Here we go again: Raab returns to the Ministry of Justice

25th October 2022

When Dominic Raab left the Ministry of Justice when Elizabeth Truss became Prime Minister, the blog teased that the Human Rights Act was still there and Raab was not.

Well.

Raab has today returned to the Ministry of Justice as Secretary of State and Lord Chancellor (and Deputy Prime Minister).

And this means things do not look good for the Human Rights Act.

As this blog has previously averred, the Human Rights Act is Moby Dick to Raab’s Captain Ahab:

And so when Raab went, it seemed the Act was safe.

The new Truss administration dropped the “Bill of Rights”, a dreadful mess of a Bill.

That reversal was, it seems, the price exacted by Robert Buckland, the former Lord Chancellor, for serving as Welsh Secretary in Truss’s cabinet.

But earlier today, Buckland announced he was leaving the cabinet under the new Prime Minister Rushi Sunak:

Buckland’s letter refers to a meeting, and one wonders if he again asked for an assurance about the Human Rights Act – and, if so, what the answer was.

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While Raab was away, his replacement Brandon Lewis had the confidence and sense to negotiate a resolution to the strike by criminal barristers.

It is unlikely that resolution would have happened had Raab stayed on, and it should not be taken for granted that action by criminal lawyers has come to an end.

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As this blog has previous stated, those who sneer at Raab for not understanding human rights law are wrong.

It is that he does understand it – he just does not care for it.

And this makes him a more formidable opponent to liberals and progressives than someone who is merely ignorant of the applicable law.

We do not know yet whether Raab will now seek to revive the “Bill of Rights” many of us had assumed would pass into oblivion.

There are at least two years left of this parliament and so there is perhaps enough time for him to have a go at forcing the Bill through if he can, regardless of any backbench worries.

He may have difficulty in the House of Lords, however, as the 2019 Conservative Manifesto stopped short of promising to repeal the Human Rights Act.

But for Raab this is unfinished business, and so such an attempt is more than likely.

And for those who have a liberal or progressive interest in the law, we are again that fabled bowl of petunias:

“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was Oh no, not again.”

Oh no, not again.

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So this is what happens when we do not have a functioning Prime Ministership

20th October 2022

I have been a constitutional geek since about 1987 – from the time of the conflicts about the “community charge” legislation and then Maastricht up to the Brexit showdowns in parliament and the Supreme Court.

But I have never seen political chaos like yesterday – which is carrying on into today.

On the face of it, it could seem nothing much happened: there was a parliamentary vote which the government won.

There was yet another cabinet resignation in a year packed with ministerial resignations, and a Downing Street aide was suspended.

All pretty normal in these not-normal political times.

But.

The details from yesterday were extraordinary: a confidence vote which was not a confidence vote; the opposition party almost taking control of the parliamentary timetable; a three-line whip for the governing party to vote against a manifesto commitment; a large backbench rebellion; a former minister not asking a question in parliament in return for a suspension of that aide; a reported standing row between the departing Home Secretary and the Prime Minister; reports of physical violence in the voting lobbies; a Prime Minister wandering almost-lost through the same lobby unable to properly register her vote; the Chief Whip and Deputy Chief Whip resigning and un-resigning, and then reportedly threatening to un-un-resign unless a statement was put out by Downing Street in the middle of the night (at 1.33am); and so on.

Even Wikipedia could not keep up:

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Well.

All the drama from yesterday points to one thing.

There has been an absolute collapse of Prime Ministerial power.

The details from yesterday (and today) are effects, not causes.

They are the effects of there being an implosion in Downing Street, of there being a gap where a functioning Prime Ministership should be.

One way of reckoning the significance of a thing is to imagine what would happen if that thing did not exist.

But now we no longer have to imagine what would happen if we ceased to have a functioning Prime Ministership.

We can now see.

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This is not – yet – a constitutional crisis.

It is certainly a political crisis – indeed, it is an exemplar of a political crisis.

And it certainly is a constitutional drama.

But not all political crisis tip into constitutional crises.

This is not a constitutional crisis – but unless Parliament and the Cabinet sort it it out, it well could do

The essence of politics is conflict – and it is the failure to resolve those conflicts that can trigger a crisis.

Parliament and the Cabinet now need to act – swiftly – to restore a functioning Prime Ministership.

Until and unless a functioning Prime Ministership is restored there will be an accumulation of more unfortunate and dramatic political details.

And there will be worse: because once a Prime Ministership fails, the government itself will tend to fail; and unless Parliament can check and balance that failure, then Parliament itself could be seen to fail.

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Brace, brace – as this blog often says.

But alas that warning is too late for the Prime Ministership of Elizabeth Truss.

That has already crashed.

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How the constitution of the United Kingdom has been tested continuously for over seven years

19th October 2022

Imagine that a group of political experimentalists had come together about seven or so years ago to devise a scheme to test just how far the constitution of the United Kingdom could be pushed.

Imagine that demonic scheme was as follows:-

First: the test of a supposedly non-binding referendum in what was normally a parliamentary system

Second: the test to see if a Prime Minister could force through an extra-parliamentary invocation of Article 50, free from any statute.

Third: the test of whether – after over forty-five years – the United Kingdom could be extracted at speed from the European Union.

Fourth: the test of whether parliament could put in place a mechanism to ensure that such a departure required a withdrawal agreement to be in place.

Fifth: the test of whether a Prime Minister could close down parliament so as to force through a no-deal departure.

Sixth: the test of how the constitution can deal with with a dishonest knave of a Prime Minister.

And now we have a seventh: the test of how the constitution can deal with a vacant fool of a Prime Minister.

I may have missed out some of the tests along the way.

We may also soon have other tests – about how to deal with a border poll on the island of Ireland, or a move towards an independent Scotland.

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The constitution has been through a lot in the last ten years – perhaps too much.

Some would say that the tests set out above “show the need for a codified constitution” – but one suspects for some anything and everything “shows the need for a codified constitution”.

In each of the tests to date, there is support for the view that our uncodified constitutional arrangements have fared relatively well.

The supreme court checked and balanced the attempted misuses of Prime Ministerial power and asserted the rights of parliament; parliament with the Benn Act forced a government to enter into a withdrawal agreement; and the body politic ejected Boris Johnson as Prime Minister, even though he had recently won a substantial majority.

But the constitution needs a rest, on any view.

Constitutional law has now been continuously exciting for seven years; and it should never be exciting for more than a few weeks at most, if at all.

And as I type this, a Home Secretary is resigning and government backbenchers are threatening to vote against in a “confidence” motion.

The constitution is not going to get a rest anytime soon.

Brace, brace.

Again.

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A Prime Minister in Name Only

17th October 2022

For a good part of the history of Prime Ministers, the title of “Prime Minister” was informal.

Until the late nineteenth century it was not used in official documents and it was only in the twentieth century that, here and there, it began to leave a trace on the statute book.

It was a title that was used just to describe the most dominant minister of the day, the one who controlled the cabinet and had the confidence of parliament – usually the First Lord of the Treasury but sometimes not.

And if today one asked an alien looking down from space who was the Prime Minister of the United Kingdom, that alien would assume it was Jeremy Hunt.

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Billy the Fish and the Green Baize Vampire

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One of the features of our uncodified constitutional arrangements is that the power of the Prime Minister varies depending on individuals, events and politics.

The last three Prime Ministers before Truss all lost office between general elections and, as this blog has often pointed out, every Prime Minister since 1974 has either gained or left office between general elections (or, most recently, both).

But loss of office is not exactly the same as loss of power – our constitution is so flexible that not even loss of office is a requirement for losing power.

And what we have at the moment is power moving away from the nominal Prime Minister towards another figure in the Cabinet.

An allusion, in a playful way, to the distinction made by the greatest of  our constitutional commentators, Walter Bagehot, between the efficient and the dignified (or, here, undignified) elements of the constitution.

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Many assume there will have to be a general election in the current circumstances – and there certainly should be.

But if the cabinet and the government majority in parliament can accept the current arrangements then there is no way forward to an early general election.

And in the meantime, and like the personal tax rate reduction, any influence whatsoever of Truss over policy is “delayed indefinitely”.

For it is Hunt who has control over policy and has the confidence of parliament – and of the markets.

We now have a Prime Minister in name only.

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(Apologies to Billy the Fish and Billy the Kid and the Green Baize Vampire.)

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Law and policy on a day of political chaos

14th October 2022

Well.

The word “chaos” – like “crisis” – can be overused in politics.

But on some days the word is apt.

A Chancellor of the Exchequer flew back after cutting short his meetings with the IMF in Washington only to be summarily sacked, and the government performed yet another U-turn on its “growth” mini-budget with what was a mini-press conference.

So much for policy instability – but it is the politics that has gone beyond mere instability into chaos.

The authority of the current Prime Minister within the governing party has simply collapsed.

They are simply not turning up any more:

The lack of authority is related to humiliation in the markets:

Perhaps this is the reason “Brexit” was named after “Grexit”.

These are not normal times, of course, but it is hard to see how the current Prime Minister can survive much longer in office – and even if she does, her authority is extinguished.

And when the Prime Minister’s power is low – let alone non-existent – then intense political instability will result until and unless another Prime Minister with authority can be put in place.

The centre cannot hold.

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Stepping back, we must remember that the office of Prime Minister has little formal power.

The name of the office barely features in the statute book – and for a good part of its history, the office had no statutory recognition at all.

The power of the office rests on two bases.

The first is the power that derives from the Royal Prerogative and other means of non-legislative power.

The Prime Minister can, in practice, hire and fire ministers, (again) call general elections, confer honours, set the policy agenda and chair the cabinet and cabinet committees.

But this executive power rests on the confidence of the Prime Minister’s politcal allies.

And once that respect is gone, it is gone.

The second power is that which comes from effective control of the legislature, especially in respect of matters on which there is a general election mandate.

Command of the House of Commons means control of the Finance Bills, and thereby mastery of revenue and taxation; and a general election mandate for a policy means that the House of Lords cannot needlessly delay or block the relevant legislation.

A Prime Minister with a substantial majority won at a general election has the greatest prize that the constitution of the United Kingdom can bestow.

And on paper, the current prime Minister has a parliamentary majority of about seventy.

But, as this blog recently averred, we now have, in political reality, a hung parliament.

The Prime Minister cannot even be confident that she could get a Finance Bill through the House of Commons unscathed, let alone any other contentious legislation.

And so, this Prime Minister has no authority in government and no control of Parliament.

It is only because the last few years have seen many other politically odd things that one can think that the current Prime Minister can survive another week.

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The striking thing about this political predicament is that it is entirely self-inflicted.

There was no objective reason – no requirement – for that mini-budget before the conference season.

And there was no good reason for the government to “press on” when it became obvious it had lost the confidence of the markets.

The reason they did so is not ideology – for as this blog contended not long ago, many successful politicians have been guided by ideology.

The problem with current Prime Minister is not that she has an ideology but that she seems to have nothing else.

One suspects that even now she has no sense of what actually she has got wrong: about why reality is not according to her political vision.

And so we have politicians who idolise “free markets” being destroyed one-by-one by the market.

It is quite a spectacle.

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We now get to see how our constitutional arrangements deal with yet another Prime Minister being forced from office between general elections.

It is not, of course, unusual for a Prime Minister to either take office or leave office between general elections.

As this blog has said many times, every Prime Minister since 1974 has either taken office or left office between general elections.

The unusual thing is now it is happening frequently, and we are now on our fourth Prime Minister since 2016.

The cause of this political instability is not that the governing party cannot obtain a majority – it has had a working majority between 2015-2017 and from 2019 onwards.

There is a deeper problem in the politics of the United Kingdom which means that even a governing party with nominal majorities is being relentlessly wrecked.

Brace, brace.

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The Scottish independence referendum case before the Supreme Court

12th October 2022

Yesterday and today there has been a fascinating case argued before the Supreme Court.

The case is about whether the Scottish parliament can legislate not for independence but for a non-binding referendum on the question of independence.

There is no dispute that actual independence is a matter legally reserved for the parliament in Westminster.

Nonetheless the Scottish government has come up with this clever wheeze of saying that even though the union is a reserved matter, there should be nothing to stop it holding an advisory referendum on the issue.

But the really clever wheeze is how they have framed this case so that it is being heard at the Supreme Court even without a bill being presented to the Scottish parliament let alone passed by the Scottish government.

The Scottish government has done this by means of a “reference” – which allows the devolved governments to refer questions directly to the Supreme Court.

This is unusual both legally and constitutionally, as the Supreme Court is normally an appellate court and not a court of first instance.

And so this is a rare occasion where the Supreme Court is acting, in effect, as a pure constitutional court, rather than just happening to hear an appeal of a constitutionally interesting case.

The Supreme Court website sets out the following:

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The reference is framed as being about whether it is open to the Lord Advocate to advise that a bill with such a provision can be brought forward – as set out in the Scottish government’s published case:

This is an ingenious approach.

And nobody knows if it will succeed – not least because there is no precedent to guide us.

The Scottish government needs to jump two hurdles.

The first is the jurisdictional hurdle of whether this is a question that can even be answered by the Supreme Court at this stage.

The second is the substantial hurdle of whether such an advisory referendum is within the competence of the Scottish parliament.

On the balance of probability, any party to litigation needing to jump two such high hurdles is unlikely to succeed.

But nonetheless this is certainly a case to watch with interest – and you should, if possible, watch the footage of the hearings linked to at the Supreme Court page.

My own personal view from having watched some of the hearing is that the Lord Advocate – on behalf of the Scottish government – put the case as well as it could be.

In particular, she explained the legal route that the Supreme Court could take should it want to do so.

In response, the United Kingdom government was less impressive, though this may just be my personal bias.

But little is likely to depend on the oral advocacy – the Supreme Court now has to digest the extensive written documents which have been placed before it by the parties, and that may take months.

So we may have some time to wait.

Whatever the decision, it will be interesting to read the court’s reasoning in this exceptional and potentially consequential case.

For we all know about “advisory” referendums, don’t we..?

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