Nicola Sturgeon’s attempt to hold a second independence referendum should be thrown out of court because a new vote would not be an “abstract opinion poll” but a clear attempt to terminate the Union, UK Government lawyers have claimed.
In a legal submission to the Supreme Court, Lord Stewart of Dirleton, the Advocate General for Scotland, said a plebiscite on Scottish independence would “plainly” relate to the union between England and Scotland, a reserved matter for which Holyrood does not have the power to legislate.
Dorothy Bain, the Lord Advocate – Ms Sturgeon’s top law officer – has asked the court to rule on whether the Scottish Parliament could hold a referendum without Westminster’s permission.
She has submitted that it could be argued an “advisory” poll is within devolved powers because it would not, in itself, break up the UK.
However, lawyers for the UK Government said it could not “credibly be suggested” that any such referendum would be merely advisory, as a vote in favour of independence would “no doubt” be seized upon by the SNP to seek “the termination of the Union and the secession of Scotland”.
Ms Sturgeon has said she wants to hold a second referendum in Oct 2023, but the UK Government is refusing to grant permission as it did ahead of the 2014 vote, when 55 per cent of Scots backed staying in the Union.
Westminster’s submission pointed to case law, which it said showed that courts must consider the practical effects and intention of legislation, not merely its legal impact.
It also highlighted decades-old statements from the founders of devolution, who clearly stated that an independence referendum would not be within Holyrood’s powers.
“Nor can it credibly be suggested that the outcome of the referendum will be ‘advisory’ in the sense of being treated as a matter of academic interest only,” the submission said. “A referendum is not, and is not designed to be, an exercise in mere abstract opinion polling at considerable public expense.
“Were the outcome to favour independence, it would be used – and no doubt used by the SNP as the central plank – to seek to build momentum towards achieving that end: the termination of the Union and the secession of Scotland. It is in precisely that hope that the Draft Bill is being proposed.”
No credible legal scholars have yet emerged who believe Ms Sturgeon is likely to win in the Supreme Court, although she has insisted the question is an unresolved constitutional issue.
Ms Bain asked the court to rule on the issue under an obscure provision of the Scotland Act that set up devolution, despite admitting she did not have the “necessary degree of confidence” that a new referendum would be within Holyrood’s powers.
The Lord Advocate must sign off on legislation as being within devolved powers before it can be formally introduced at Holyrood.
The UK Government lawyers called on the Supreme Court to throw out the case before it delivers a ruling on the substantive issue, saying the established process was for Holyrood to pass legislation first, and it can then be challenged by British ministers.
“Parliament is unlikely to have intended the time of the Scottish Parliament, or the resources of the Supreme Court… to taken up with matters which the Scottish government’s own Law Officer considers to be outside competence,” it said.
A UK Government spokesman said people in Scotland wanted their governments to work together on “the issues that matter to them and their families” rather than an independence referendum.
He added: “On the question of legislative competence, the UK Government’s clear view remains that a Bill legislating for a referendum on independence would be outside the legislative competence of the Scottish Parliament.”
The SNP has also intervened in the case separately, claiming it would be “constitutionally improper” to prevent it from implementing its manifesto commitment to hold a new vote.
The party claimed it has a mandate for a new referendum because it won last year’s Holyrood election and a majority of MSPs in Holyrood support independence.
Joanna Cherry, the SNP MP for Edinburgh South West, said: “The British Government wants the Supreme Court to throw the case out without even hearing the substantive arguments.
“Their written argument exposes the fact they no longer believe the UK is a voluntary union of nations. Instead, they want to impose Westminster control by denying democracy and dismissing the democratic right of the people of Scotland to determine our own future.”
A hearing at the Supreme Court is due to take place in October.