The Lord Advocate did not “have the necessary degree of confidence” that Holyrood could legislate for a second independence referendum to clear a bill for introduction to the Scottish Parliament.
Last week, Nicola Sturgeon announced that her referendum bill, which aims to legalize the vote to be held on 19 October 2023, had been taken straight to the High Court.
Legal commentators are divided over whether Holyrood can hold a second independence vote without Westminster’s consent because while referendums are devolved, the Union is reserved.
The government said Lord Advocate Dorothy Bain (below) decided to refer the High Court “after considering a number of factors, including the constitutional importance of the matter and the fact that legal questions remain unresolved”.
Bain’s submission includes a full copy of the referendum bill, which the SNP-Green government is seeking to push through the Scottish Parliament.
It goes on to say: “The Lord Advocate held:
“(1) There is a genuine legal issue that has not been resolved;
“(2) This question of law is of great public importance to the people of Scotland and the United Kingdom; and
“(3) It is directly related to a central manifesto promise that the Scottish electorate has endorsed.”
The application added: “In the circumstances, the Lord Advocate decided it was appropriate for her to exercise her powers … to obtain a decision from the High Court as to whether the holding of an advisory referendum on independence would relate to reserved matters.”
“The answer to the referred question will determine whether the Scottish Parliament can debate and vote on the manifesto commitment bill.”
Bain asked the High Court to answer the question: “The provision in the proposed Scottish Independence Referendum Bill which provides that the question to be put in a referendum will be ‘Should Scotland be an independent country?’ to reserved questions?
“In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England (paragraph I (b) of Schedule S); and/or (ii) the Parliament of the United Kingdom (paragraph I (c) of Schedule 5)?”
The submission said “the Lord Advocate does not have the necessary degree of confidence” to answer the question herself.
Tory MSP Murdo Fraser said the line was “devastating”, writing on Twitter: “Now we know why @scotgov couldn’t bring their referendum bill – the Lord Advocate couldn’t certify it as part of a devolved remit.”
Donald Cameron, the Tory constitution spokesman, said the Scottish Government’s priorities were “wrong”.
He added: “Scottish law’s most senior officer is not confident that the First Minister’s plan to hold a divisive and unwanted referendum has any legal basis.
“Once again we can see exactly what the SNP are doing – playing political games by going to court to stir up discontent.”
READ MORE: How ‘de facto indyref2’ will secure Scottish independence?
SNP minister Neil Gray said: “There is a significant majority in the Scottish Parliament in favor of an independence referendum and therefore a clear democratic mandate. However, as the First Minister pointed out last week, debate remains over whether the Scottish Parliament has the power to legislate for a referendum.
“The decision of the Supreme Court on the matter aims to speed us up to such an extent that we have legal clarity. We hope that it will be considered to be within the legislative competence of the Scottish Parliament. If that result is secured, then we will introduce the bill.
“While this decision is now in the hands of the Supreme Court, we will not comment on the arguments in the case. Our focus remains clear – we will continue to make a strong and compelling case for Scotland to become an independent country.
The government added that “the Lord Advocate’s full written case will be filed in due course.”
If the High Court rules that Scotland cannot legally hold an indyref2 without Westminster’s consent, the First Minister said the SNP would fight the next general election as a “de facto” referendum.
The SNP will aim to win more than 50% of the votes cast in Scotland to secure a mandate.
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