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  4. Lord Advocate submits written case on referendum ruling

Lord Advocate submits written case on referendum ruling

25th July 2022 | government-administration

The Scottish Government’s case for holding a referendum on independence leans heavily on the vote being “advisory”, according to the Lord Advocate's full written case lodged with the UK Supreme Court in her reference for a ruling on the Scottish Parliament's powers.

Lord Advocate Dorothy Bain QC has referred a proposed bill on a referendum to the court so judges can rule whether it is within Holyrood’s competence.

In a 51-page filing, the Lord Advocate sets out both sides of the arguments in line with the Law Officers’ statutory role acting in the public interest. However, Ms Bain will represent the Scottish Government’s interests at the hearing and will argue the case personally.

Regarding the jurisdiction of the Supreme Court to consider the issue in advance of a bill being passed by the Scottish Parliament, Ms Bain argues that the Keatings case – where the Court of Session ruled that an independence campaigner's attempt to have the Parliament's power declared ahead of last year's Holyrood election was premature – could be distinguished because it was not a reference to the court under a specific statutory jurisdiction, and the court did not consider the effect of the provision in the Scotland Act 1998 which she is seeking to use in the present reference. To the extent that the then Lord Advocate submitted in that case that the only way to have the issue considered was after a bill was passed, she submits, "if necessary differing from her predecessor", that a reference is available to her in the present circumstances.

The argument against the Parliament's legislative competence because the proposed bill relates to reserved matters is said to be that although "relates to" has been given a particular meaning in the Act and related case law, it clearly relates to the reserved matters of the Union and of the UK Parliament because voters would be asked whether they wanted the Union to continue, a referendum would have more than a "loose and consequential" connection to that matter in terms of the case law, it is evident that the Scottish Government intends to use the referendum as a step towards achieving independence, and although a referendum would have no legal effect on the Union, its practical effect would be politically significant.

On the other side, the argument is that the connection between an advisory, as opposed to a "self-executing", referendum and a reserved matter would be insufficiently close and direct; on orthodox principles of statutory construction, the legally relevant purpose of the bill would be to ascertain the views of the people of Scotland on independence, and not the wider motivations or aspirations of particular parliamentarians or members of the Government, and it would have no prescribed legal consequences arising from its result; and the court is not equipped to and should not speculate on the practical effects, nor is it appropriate to take into account possible future legislation of the UK Parliament. The UK has given no assurance how it would act in the event of a yes vote. The Scottish Government is entitled to negotiate with the UK Government about reserved matters, and the Parliament is entitled to ascertain the views of the public on such matters.

The Lord Advocate concludes on competence: "Whether the referred provisions 'relate to' the reservation of the Union depends to a significant extent on how broad a meaning is given to the effect of any referendum within the terms of s 29(3) [of the Scotland Act]. If its effect, for the purposes of determining whether it relates to the reservation of the Union, embraces the political consequences of any 'yes' vote, then it may be beyond the competence of the Scottish Parliament. If, however, its effect is determined by its legal consequences and immediate effect (obtaining the views of the Scottish people on the subject of a reserved matter), then it may not 'relate to' the reservation and thus would be within the competence of the Scottish Parliament."

In her final observations, she refers to the level of support for the SNP at recent elections and adds: "Against that background, and long-standing consensus that Scotland has the right to self-determination, to what extent, if at all, the holding of a referendum relates to a 'reserved matter' is a question of fundamental constitutional and public importance. Despite the highly charged political context, it is a question of law... that can only be authoritatively determined by this court. The Lord Advocate believes it is in the public interest that clarity be brought to the scope of the Scottish Parliament's powers in respect of the issue...She [has brought the reference] for the benefit of the Scottish Parliament, the Scottish Government and the people of Scotland (indeed, people throughout the United Kingdom)."

The court is proposing to hear argument on the reference, including on the question whether it is premature, on 11 and 12 October.

Read the Lord Advocate's submission here.

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