Nicola Sturgeon can hold Indyref2 as it would be ‘entirely advisory’, Supreme Court told
Nicola Sturgeon #NicolaSturgeon
Nicola Sturgeon has the power to hold an “entirely advisory” Scottish independence referendum as it would have no legal effect on the Union, her most senior law officer told the Supreme Court.
Dorothy Bain KC, the Lord Advocate, said the vote proposed by the First Minister would be “non self-executing”, as a ‘yes’ vote would not break up the United Kingdom by itself.
Speaking on the first morning of a two-day hearing at the Supreme Court, she said the legislation that led to the 2014 independence and 2016 Brexit referendums did not impose legal obligations for their outcomes to be implemented.
“A non self-executing referendum invariably has political consequences, but in law, it has no effect. They are entirely advisory,” she said.
But Ms Bain admitted she lacked the “necessary degree of confidence” that Ms Sturgeon’s draft Referendum Bill was within Holyrood’s powers. Constitutional affairs are reserved to Westminster.
The Lord Advocate usually has to certify that proposed legislation is within the Scottish Parliament’s powers before it can be tabled.
‘Festering issue’
However, Ms Bain said the Supreme Court should perform this function instead as it was in the “public interest” that the “festering issue” be resolved.
Ms Sturgeon has published a draft Bill for a “consultative” vote to be held on Oct 19 next year, and the Lord Advocate referred it to the Supreme Court for a ruling on whether the legislation was within her powers.
Five judges led by Lord Reed of Allermuir, the court’s Scottish president, will make a ruling on whether the legislation is lawful. They will also consider whether Ms Bain’s referral was premature as a Bill has not even been tabled.
The UK Government would usually have four weeks after the passage of legislation at Holyrood to challenge its competence in the Supreme Court.
Arguing that another separation vote would have an “advisory” rather than legal impact, Ms Bain told the court: “That was the case in the Scottish Independence Referendum Act 2013, which provided for a referendum on independence.
“It was a position adopted by the Westminster Parliament in the European Union Referendum Act 2015. And it is the position in respect of the draft Bill.”
Ms Bain told the court that a majority of Scottish MPs were elected in 2019, and MSPs in 2021, on manifesto commitments to hold a further referendum.
“The issue of Scottish independence is a live and significant one in Scottish electoral politics and the Scottish Government wish to introduce a Bill in the Scottish Parliament to provide for the holding of a referendum,” she said.
She added that she agreed with an earlier observation that this has become a “festering issue”, noting: “It’s an issue that I invite this court to finally resolve.”
‘Not constitutionally appropriate’
The Lord Advocate argued that it was “not constitutionally appropriate” that a law officer be an “arbiter” over such an important issue and only the Supreme Court can provide “certainty”.
Ms Bain was scheduled to make her submissions on Tuesday, with the UK Government’s lawyers putting forward their case on Wednesday. The Lord Advocate will have a short opportunity at the end to reply to their points.
In his opening remarks, Lord Reed warned that it was likely to be “some months” before the judges gave their ruling and noted they had “more than 8,000 pages of written material to consider”.
“Despite the political context” of the case, he said the issues the court had to consider were “limited to technical questions of law”.
Lord Reed said they would decide whether the court should have jurisdiction over the case after assessing whether Ms Bain could make such a referral before a Bill was tabled.
They will also decide whether the proposed legislation is related to “reserved matters” and is outside the Scottish Parliament’s powers.
Douglas Ross, the Scottish Tory leader, said: “Whatever the outcome of the case at Scotland and the UK’s Supreme Court, it’s a disgrace that the SNP have forced this legal battle that nobody wants during a time of crisis.
“Now more than ever, all of our focus must be on what really matters to people across Scotland – tackling the global cost-of-living crisis and the record-high waiting times in Scotland’s NHS.”
Sign up to the Front Page newsletter for free: Your essential guide to the day’s agenda from The Telegraph – direct to your inbox seven days a week.