Nicola Sturgeon’s referendum hopes already dented by Supreme Court ruling, says Lord Sumption

Nicola Sturgeon’s chances of victory in a legal battle to stage a second Scottish independence referendum have been damaged by a Supreme Court ruling against her government last year, Lord Sumption has said.

The former Supreme Court judge said the First Minister’s “main difficulty” in the case was that constitutional affairs were reserved to Westminster and Holyrood had “no power to legislate about it”.

But he said the legal hurdle Ms Sturgeon must clear had been raised even higher by a ruling last October in which the court found her government had exceeded its powers.

He said this meant the Scottish government could not “legislate in a way that was intended to bring pressure upon the UK authorities on a reserved matter”.

Ms Sturgeon has argued that a referendum would be within Holyrood’s powers because it would only be advisory and would not have a direct impact on the constitutional settlement.

But she has made it clear she would expect the UK Government to respect the result by starting independence negotiations if more than half of Scots backed separation.

In October, five senior judges, led by the Supreme Court’s Scottish president, Lord Reed of Allermuir, ruled that two Bills passed by MSPs were incompatible with the Scotland Act that underpins devolution.

They said four parts of a Bill about children’s rights and two provisions in a Bill about local government were outside the parliament’s legislative competence because they imposed duties on UK ministers in reserved areas.

But Ms Sturgeon published a Referendum Bill on Tuesday and disclosed that Lord Advocate Dorothy Bain, her most senior law officer, had asked the Supreme Court for a decision on whether the legislation was within Holyrood’s powers.

The request has been referred again to Lord Reed and he will decide when the case will be heard, how many justices will consider it and which will sit on the bench.

Lord Sumption told BBC Radio Scotland that he expected the court would give the case a “high degree of expedition and [it] might be decided this autumn” as “it clearly can’t be allowed to drag on for that much longer”.

He said: “The difficulty is that the Supreme Court decided last October that whether a matter was reserved, that meant not simply that the Scottish parliament couldn’t directly legislate upon it, it also meant that they couldn’t legislate in a way that was intended to bring pressure upon the UK authorities on a reserved matter.

“I suspect that that will probably be the principal difficulty in the way of Ms Sturgeon’s application.”