NICOLA Sturgeon’s plan for a second independence referendum without Westminster consent has been gravely undermined by her own chief law officer.
Last week, Ms Sturgeon announced her plans for Holyrood to hold its own independence referendum subject to the Supreme Court
Following an announcement by the First Minister to hold another vote on October 19 2023, she said Lord Advocate Dorothy Bain QC had agreed to ask the Supreme Court to give an opinion on whether the Scottish Parliament had the necessary powers to hold such an indicative vote.
In a withering assessment, the Lord Advocate said she “does not have the necessary degree of confidence” that Holyrood’s powers alone are enough to hold a re-run of the 2014 referendum.
In an 18-page submission to the Supreme Court, Ms Bain has warned that she needs to have enough confidence in Holyrood’s powers to hold a referendum.
Her reference says: "The Lord Advocate needs to have the necessary degree of confidence that a Bill would be within devolved competence in order to 'clear' such a statement.
“In the present case, the Lord Advocate does not have the necessary degree of confidence."
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Ms Bain has appealed to the Supreme Court to give clarity to a “genuine issue of law that is unresolved”.
Scottish Conservative shadow constistution secretary, Donald Cameron, said: “Now we know why the Scottish Government, shamefully, failed to allow the Lord Advocate to appear before Parliament last week, ahead of the summer recess – because 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."
He added: “But strip away the legal wrangling and political posturing, this simply boils down to an SNP Government focused on a self-serving, obsessive push for independence, when they ought to be focused on the priorities of the Scottish people.
“Ministers should be giving all their attention to the global cost-of-living crisis, the waiting-times crisis in Scotland’s NHS, the shocking education attainment gap and the drugs-death epidemic. Sadly, their priorities are all wrong.”
Scottish Labour constitution spokesperson Sarah Boyack said: “It is clear from the document that the Lord Advocate does not have confidence that what the SNP is proposing is legal.
“With the country in the midst of a cost of living crisis, it is deeply disappointing to see Nicola Sturgeon return to the politics of the past.
“The people of Scotland need action from the Scottish government now, not more constitutional inertia.
“Only Labour has a plan to reform the UK, tackle the cost of living crisis and kick Boris Johnson and the Tories out of Downing St.”
In her filing, the Lord Advocate said that "the Scottish Government, the Scottish Parliament and the people of Scotland and the wider United Kingdom ought to have clarity on the scope of the relevant reservations on this issue of fundamental constitutional importance”.
She added: “Being questions of law, only this court can provide that clarity and unless the issue is judicially resolved there will remain uncertainty and scope for argument about the powers of the Scottish Parliament. That is not in the best interests of the people of Scotland or of the United Kingdom.
“In these circumstances, the Lord Advocate has determined that it is appropriate for her to obtain a judicial determination from the Supreme Court. Accordingly, the Lord Advocate makes this reference, in exercise of her retained functions, under paragraph 34 of Schedule 6 of the Scotland Act.
“It is the first time this power has been exercised by the Lord Advocate. That is a measure of the fundamental importance of the issue and its exceptional nature.”
In the filing, the Lord Advocate posed a question to the court, “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?”
Ms Bain also stressed that any referendum held next year would not be legally binding, but would simply indicate the will of the Scottish people on the issue.
“The Bill does not stipulate what should happen in response to the result,” she wrote.
“The Bill provides only that the referendum should be held.
“Consequently, as a matter of law, the legal effect of a referendum held pursuant to the Bill would be nil.”
If the Supreme Court returns a verdict that even an indicative vote was not within the powers of the Scottish Parliament, the First Minister said the next general election would act as a “de facto referendum”, with the SNP running on the single issue of independence.
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