Scottish independence: UK Government publishes Advocate General's Supreme Court arguments

The Supreme Court does not have jurisdiction to answer an indyref2 query from the Lord Advocate but if its judges decide it does they must rule that any referendum would relate to reserved rather than devolved matters, the UK Government’s legal adviser has said.

Last month Lord Advocate Dorothy Bain QC asked the Supreme Court to provide an opinion on whether the Scottish Government can lawfully press ahead with a second vote on independence without receiving permission from Westminster first.

The UK Government, which has refused to temporarily transfer the powers thought necessary for Holyrood to hold a vote, opposed Bain’s move and attempted to have her case thrown out without a hearing.

After the Supreme Court declined to dismiss that argument, the Advocate General for Scotland, Lord Stewart, today published the written case he has put forward on behalf of the UK Government.   

In terms of jurisdiction, Lord Stewart is arguing that the court cannot look at Bain’s question because the Draft Scottish Independence Bill published by First Minister Nicola Sturgeon in July has not yet been passed. The 1998 Scotland Act, he said, states that the Supreme Court can only be asked to intervene in the period between a law being passed by parliament and receiving royal assent.

“The 1998 act creates a specific mechanism by which bills of the Scottish Parliament which are considered by either the Scottish or UK law officers to give rise to issues of legislative competence can be brought before the Supreme Court,” he wrote.

In her written case, Bain noted that “four successive Scottish parliamentary elections” had returned governments “committed to giving the people of Scotland the choice of independence” and as such it is a “question of law” to determine whether holding a referendum should be a reserved or devolved matter.

Though Bain said she did “not have the necessary confidence” to answer that question herself, Lord Stewart, whose legal team includes English silk Sir James Eadie QC and Scottish silk David Johnston QC, said it is clear that the matter is reserved.

“The scope of the reservation is self-evident: it is the union,” he wrote. “It is not the dissolution of the union: whether a referendum were to support or reject independence, it would equally relate to the union.

“The way in which the question on the referendum is framed, neutral or otherwise, does not affect the connection to the reserved matter.

“Nor is this surprising: the union of Scotland and England and matters connected to it are not of interest only to the people of Scotland.

“They are, par excellence, matters in which the United Kingdom as a whole has an interest and which parliament therefore reserved so that they continue to be the responsibility of the UK parliament at Westminster.”

by Roddy Dunlop

Scottish Independence

The Lord Advocate's reference to the Supreme Court is an exercise in restrained neutrality

The Supreme Court will consider both sides’ arguments at a hearing scheduled for 11 and 12 October.