Nicola Sturgeon’s request for a high court ruling on the legality of holding a second Scottish independence referendum without Westminster’s permission should be rejected as “premature”, the UK government has suggested.
The Lord Advocate for Scotland, Dorothy Bain QC, wrote to the High Court at the request of the First Minister two weeks ago, seeking clarity on whether the Holyrood parliament could legislate for a second referendum without permission from Westminster under a Section 30 order that Boris Johnson has repeatedly refused to provide.
Last week, the text of that letter was published, confirming that Bain feared such a bill would not be legislatively competent under Holyrood’s devolved powers.
Filing an initial response at the High Court on Tuesday, lawyers for the UK government said their “clear view” remained that a bill legislating for an independence referendum would be outside the legislative competence of the Scottish Parliament.
They further point out that the Scotland Act 1998 sets out a statutory process for checking whether legislation is within Holyrood’s remit, but that this process only begins after the Bill has been debated and passed by MSPs, and so the present application to the court yes, consideration of the bill is premature.
It echoes a decision by the Court of Session, Scotland’s highest court, made last year in response to a case brought by pro-independence campaigner Martin Keatings. He wanted the judges to rule on whether Holyrood had the legal powers to hold another referendum, but the case was dismissed as “hypothetical and premature”.
A UK Government spokesman said: “We have been clear that now is not the time to discuss another independence referendum when the people of Scotland want both their governments to work together on the issues that matter to them and their families. However, after the Lord Advocate referred the Scottish Government’s draft of the independence referendum, the UK Government today lodged its initial response in the High Court.
“The documents confirm that the Solicitor General for Scotland will become a formal party to the case and will ask the court to consider whether it should accept the Lord Advocate’s referral.”
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The development comes as the first Tory leadership candidates make their pitches to Scottish members. Writing in the Scottish Daily Mail on Tuesday, Penny Mordaunt vowed to overturn the SNP’s electoral dominance by knocking down its “yellow wall” and said she would refuse to “play Nicola Sturgeon’s games” come second ballot time.
On Sunday, Sajid Javid and Jeremy Hunt told BBC News that it would be at least a decade before another independence referendum is held.
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