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.
The revelation comes from a reference to the UK’s Supreme Court published by the Scottish Government on Tuesday.
Last week, Nicola Sturgeon announced that her referendum bill, which aims to legislate for a vote to be held on October 19, 2023, had been directly referred to the Supreme Court.
Legal commentators are split on whether Holyrood can hold a second independence vote without Westminster’s consent because, while referendums are devolved, the Union is reserved.
The Government said that the Lord Advocate, Dorothy Bain (below), decided to make the Supreme Court reference "following consideration of a number of factors including the constitutional significance of the matter and the fact that issues of law remain unresolved".
Bain's submission includes a complete copy of the referendum bill which the SNP-Green government aims to pass through the Scottish Parliament.
It goes on to say: "The Lord Advocate considers:
"(1) There is a genuine issue of law that is unresolved;
"(2) That issue of law is of exceptional public importance to the people of Scotland and the United Kingdom; and
"(3) It is directly relevant to a central manifesto pledge that the Scottish electorate has endorsed."
The submission adds: "In the circumstances, the Lord Advocate has determined that it is appropriate for her to exercise her powers ... to obtain a ruling from the Supreme Court on whether the holding of an advisory referendum on independence would relate to reserved matters.
"The answer to the question referred will determine whether the Scottish Parliament can debate and vote upon the bill which is the subject of a manifesto commitment."
Bain has asked the Supreme Court to answer the question: "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?
"In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England (Para. I (b) of Schedule S); and/or (ii) the Parliament of the United Kingdom (Para. I (c) of Schedule 5)?"
The submission says "the Lord Advocate does not have the necessary degree of confidence" to have answered the question herself.
Tory MSP Murdo Fraser said this line was "devastating", writing on Twitter: "Now we know why @scotgov couldn’t introduce their referendum bill – the Lord Advocate couldn’t certify it as within devolved competence."
Donald Cameron, the Tories' constitution spokesperson, said the Scottish Government had its priorities "all wrong".
He added: "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.
“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."
SNP Minister Neil Gray said: “There is a substantial majority in the Scottish Parliament in favour of an independence referendum and therefore a clear democratic mandate. However, as the First Minister set out last week, there remains debate over whether the Scottish Parliament has the powers to legislate to hold a referendum.
“A Supreme Court decision on the matter seeks to accelerate us to the point that we have legal clarity. We hope that it will be deemed to be within the legislative competence of the Scottish Parliament. If that outcome is secured we will then introduce the bill.
“While that decision now rests 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 set out the 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 Supreme Court rules that Scotland cannot legally hold indyref2 without Westminster's consent, the First Minister has said the SNP will 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 in order to secure a mandate.
