Lord Advocate refers independence referendum Bill to Supreme Court

·4 min read

Scotland’s chief law officer has referred Scottish Government legislation on holding another independence referendum to the Supreme Court.

Following an announcement by First Minister Nicola Sturgeon of plans to hold another vote on October 19 2023, Ms Sturgeon said Lord Advocate Dorothy Bain QC had agreed to ask the Supreme Court to opine on whether the Scottish Parliament had the necessary powers to hold such an indicative vote.

In her statement, the First Minister announced the publication of the Scottish Independence Referendum Bill.

On Tuesday, an 18-page reference was submitted to the court.

Nicola Sturgeon in Holyrood
Nicola Sturgeon outlined the movelast week in Holyrood (Lesley Martin/PA)

“The Scottish Government, the Scottish Parliament and the people of Scotland and the wider United Kingdom ought to have clarity on the scope of the relevant reservations on this issue of fundamental constitutional importance,” the Lord Advocate wrote in her filing.

“Being questions of law, only this court can provide that clarity and unless the issue is judicially resolved there will remain uncertainty and scope for argument about the powers of the Scottish Parliament. That is not in the best interests of the people of Scotland or of the United Kingdom.

“In these circumstances, the Lord Advocate has determined that it is appropriate for her to obtain a judicial determination from the Supreme Court. Accordingly, the Lord Advocate makes this reference, in exercise of her retained functions, under paragraph 34 of Schedule 6 of the Scotland Act.

“It is the first time this power has been exercised by the Lord Advocate. That is a measure of the fundamental importance of the issue and its exceptional nature.”

Ms Bain told the court that she would need to have “confidence” in the competence of the Scottish Parliament to legislate on a certain topic before a Bill could be introduced, and would need to clear a statement to that effect.

“In the present case, the Lord Advocate does not have the necessary degree of confidence,” she wrote to the court.

In the filing, the Lord Advocate posed a question to the court, “does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be ‘should Scotland be an independent country?’ relate to reserved matters?”

Ms Bain also stressed that any referendum held next year would not be legally binding, but would simply indicate the will of the Scottish people on the issue.

“The Bill does not stipulate what should happen in response to the result,” she wrote.

“The Bill provides only that the referendum should be held.

“Consequently, as a matter of law, the legal effect of a referendum held pursuant to the Bill would be nil.”

If the Supreme Court returns a verdict that even an indicative vote was not within the powers of the Scottish Parliament, the First Minister said the next general election would act as a “de facto referendum”, with the SNP running on the single issue of independence.

Last week, an update from the Supreme Court said the reference would be put before Supreme Court president, Lord Reed of Allermuir, who will decide when the case will be heard, if preliminary matters are to be discussed, how many justices will consider the reference and which justices will sit on the bench.

Scottish Tory constitution spokesman Donald Cameron said the reference showed why the Lord Advocate did not appear before MSPs ahead of the summer recess.

The decision to allow a statement by the Lord Advocate would be made by the parliamentary bureau, the cross-party group which recommends parliamentary business to be finalised by MSPs.

“Scotland’s top law officer is not confident that the First Minister’s plan to hold a divisive and unwanted referendum has any legal basis,” Mr Cameron added.

“Yet again we can see exactly what the SNP are up to – playing political games by going to court in order to stir up grievance.

“But strip away the legal wrangling and political posturing, this simply boils down to an SNP Government focused on a self-serving, obsessive push for independence, when they ought to be focused on the priorities of the Scottish people.

“Ministers should be giving all their attention to the global cost-of-living crisis, the waiting-times crisis in Scotland’s NHS, the shocking education attainment gap and the drugs-death epidemic. Sadly, their priorities are all wrong.”

While Scottish Lib Dem constitution spokesman Willie Rennie echoed Mr Cameron’s sentiment, adding: “Regardless, this will be seen as so much navel gazing by a Scottish public who are more concerned with paying their bills and putting food on the table.”

As did Scottish Labour constitution spokeswoman Sarah Boyack, who said: “It is clear from the document that the Lord Advocate does not have confidence that what the SNP is proposing is legal.

“With the country in the midst of a cost-of-living crisis, it is deeply disappointing to see Nicola Sturgeon return to the politics of the past.

“The people of Scotland need action from the Scottish government now, not more constitutional inertia.”