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A thought about the Referendums Bill. Section 33 of the Scotland Act allows UK law officers to fast track a legislative competence challenge to primary legislation straight to the Supreme Court. There is no parallel provision for executive decisions... legislation.gov.uk/ukpga/1998/46/…
Net effect, if this is right and I haven't missed anything essential (which is a possibility)? Then UK ministers could not immediately refer the legality of any independence referendum under the Referendums Bill to the Supreme Court...
Which would mean that any action to challenge the legality of executive action would have to be taken by a standard judicial review process, which would begin in the Outer House of the Court of Session rather than London.
Actually quite a remarkable bit of legerdemain by the Scottish ministers. I wonder if it is (a) intentional and (b) the UK government have noticed.
A few folk have been asking for an even simpler version of what this means. It is really difficult to be entirely untechnical about inherently technical legal processes. But here's one final shot.
Holyrood passes Acts. Scottish ministers can be given delegated law-making powers by Acts. Under the Scotland Act, UK law officers can send Acts of the Scottish Parliament to face immediate challenge in front of the Supreme Court if they think they relate to reserved matters.
But they don't have the same power to refer decisions of Scottish Ministers to the Supreme Court. Any indyref called under the new Bill can't be immediately referred to the UK Supreme Court under the Scotland Act, even if the UK government believe it relates to reserved matters.
