Scotland’s Lord Advocate has confirmed he fears Nicola Sturgeon’s plans for another independence referendum may be illegal.
Dorothy Bain QC has now released the letter she wrote to the UK High Court last week seeking its ruling on whether Sturgeon had the legal power to hold a referendum without the UK government’s permission.
Bain told the court she was required to approve a statement by Scottish ministers when they tabled a new bill that it was legislatively competent under Holyrood’s devolved powers.
“The Lord Advocate must have the necessary degree of confidence that a bill will be within his devolved jurisdiction to ‘clear’ such a statement,” she told the High Court. “In the present case the Lord Advocate lacks the necessary degree of confidence.”
Her admission confirms widespread suspicions in Holyrood that Bain told Sturgeon that holding an independence referendum without permission from Westminster under a so-called Section 30 order would likely be illegal.
Boris Johnson has repeatedly said he will not issue this order. Sturgeon revealed last week that she wanted the powers to hold a referendum without her, despite a landmark legal ruling that only Westminster can approve legislation that affects the UK constitution.
The Lord Advocate’s letter reveals that the Scottish Government believes a Holyrood-led referendum bill can be legal as it will be advisory only and has no legal force, and will ask a neutral question: “Should Scotland be an independent nation?” “
She told the court: “The Scottish Government accepts that an act of dissolution of the union is not within the legislative competence of the Scottish Parliament. However, it does not necessarily follow that the proposed bill providing for an advisory referendum on independence relates to reserved matters.
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“[Given] The consultative nature of the proposed referendum calls into question whether the proposed question (or the answer to it) is intended to change the fundamental principle of parliamentary sovereignty, nor would it have that effect.
Prof Michael Keating, a constitutional expert, said Bain had made it clear she had doubts about the bill’s legality, but was maintaining her political neutrality by seeking the Supreme Court’s ruling.
“It’s unusual to get an advisory ruling from the supreme court because that’s all it really is,” Keating said. “Normally, you would wait for the bill to pass before you take it away [to the court]. It seems to be very reasonable.
Last week, Sturgeon said that if the court ruled against the bill, she would use the next general election as a “de facto referendum” where the Scottish National Party would be empowered to start independence talks if it won a majority of votes in Scotland. The Scottish Greens have since argued that votes for their party will count towards that tally.
Opposition parties were furious that Bain’s letter was published during the Holyrood recess: they had asked her to appear before MSPs to answer questions about the high court application.
Donald Cameron, the Scottish Conservatives’ constitution spokesman, said: “Once again we can see exactly what the SNP is doing – playing political games by going to court to stir up discontent.”
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