SNP can intervene in Lord Advocate's indyref court case, but only in writing

The SNP has been given permission to intervene in a Supreme Court case brought by the Lord Advocate but the party’s lawyers cannot appear in person and they must not repeat the arguments that have been made in the original submission.

First Minister Nicola Sturgeon announced in June that she intends to hold a second independence referendum in October next year whether the Westminster government grants permission to do so or not.

Lord Advocate Dorothy Bain QC, who is both Scotland’s chief prosecutor and the Scottish Government’s legal adviser, said at the time that she could not be certain it would be lawful to proceed without permission and asked the Supreme Court to consider the question as a matter of constitutional law.

The court is due to hear the case, which is being opposed by the UK Government, next month. The SNP applied to participate in the case as an intervener at the beginning of August, with the party’s business convener Kirsten Oswald noting that its arguments are “intended to support and complement the arguments for the [referendum] bill being within the Scottish Parliament’s competence”.

Today the court announced that it will allow that application, but that the party’s counsel, Claire Mitchell QC, will not be allowed to present the case orally.

“After consideration of the application filed on behalf of Scottish National Party seeking permission to intervene in this reference the court ordered that the application be granted by way of written submissions only, limited to 20 pages and avoiding repetition of the Lord Advocate’s arguments,” it said in a statement.

“These submissions [are] to be filed no later than 21 September 2022.

“Permission [is also] granted to the parties to produce written responses, each limited to 20 pages, within 14 days of service of the SNP’s written submissions.”

The UK Government, whose case is being made by the Advocate General for Scotland Lord Stewart, initially attempted to have the entire case thrown out, arguing that the court should consider only whether it should accept Bain’s reference rather than looking at the substance of the question itself.

The court rejected that bid, however, saying that “in the interests of justice” it should “hear argument on both issues at a single hearing”.

The matter is scheduled to be heard on 11 and 12 October.