Nothing in law to stop Nicola Sturgeon passing an Indyref2 Bill, her law chief admits

Provided a minister declared a Bill was legislatively competent based on “a sound rationale…reached in good faith”, they could reject their own Government legal advice and push ahead with it at Holyrood. 

Ms Bain also said a backbench MSP could bring forward a member’s Bill on Indyref2.

She said it would be a “significant departure” for a minister to introduce a Bill to parliament without having it cleared by the Scottish Government’s law officers, but there was “nothing… as a matter of law” to prevent it, as a minister was “not bound” by a law officer’s advice.

However the UK Government could challenge such a Bill after it was passed.

The issue goes to the heart of whether the Lord Advocate was entitled to refer the Indyref2 question to the Supreme Court in the first place, based on her need for a decision to fulfil her role as a law officer, and whether the Court needs to consider it.

The UK Government argues, inter alia, that the reference was ill-founded because the Lord Advocate’s role is not based in the relevant law and so the case should be thrown out. 

The Court is hearing arguments on whether it would be within Holyrood’s legislative competence to pass an Indyref2 Bill, or whether such a Bill would be null and void because it related to the reserved matters of the Union and the UK Parliament.

Ms Bain, at Ms Sturgeon’s request, asked the Court in June for a definitive ruling on whether Holyrood can hold Indyref2 without Westminster consent.

The First Minister has said that if the Court rules Holyrood cannot proceed, she will fight the next general election as a ‘“de facto referendum” on the single question of independence.

The UK Government argues that the case should be dismissed because it is premature as no Referendum Bill has been introduced at Holyrood, far less passed by MSPs.

The UK Government says the Court should not consider the issue before legislation exists.

It says the appropriate mechanism is for the Court to do so is once legislation is passed, but before it receives Royal Assent and becomes law.

Known as a reference under Section 33 of the Scotland Act 1998, this mechanism has already been used by the UK Government to challenge and partly invalidate three Holyrood Bills in recent years, on the grounds they strayed beyond Holyrood’s limited powers.

Ms Bain has asked the Court to make a ruling under under Schedule 6 of the Act in advance of any legislation being introduced.

Under the Scottish Ministerial Code, ministers must have draft legislation signed off by the law officers before it can introduced to Holyrood.

Ms Bain told the Court that she was unable to clear a draft Referendum Bill for introduction as she was not confident it was legislatively competent.

She said that meant she needed the Court to rule on whether Holyrood could hold Indyref2 so that she could either sign off the Bill or not.

She said it was “necessary” and “in the public interest” for the Court to settle the issue in "highly exceptional" cuircumstances.

“The issue of Scottish independence is a live and significant one in Scottish electoral politics and the Scottish Government wish to introduce a bill in the Scottish Parliament to provide for the holding of a referendum,” she said.

She agreed with an earlier observation that this has become a “festering issue”, adding: “It’s an issue that I invite this court to finally resolve.”

It was “not constitutionally appropriate” that a law officer be an “arbiter” over an issue of such public importance, and only the Supreme Court could provide “certainty” to the Scottish Parliament, government and voters.

She said the Court had jurisdiction because the question about the draft bill's sign-off arose “by virtue of” the Scotland Act.

But in his written submission, the UK’s leading law officer on Scotland, the Advocate General for Scotland, said this was not so, as the Lord Advocate’s approval was not required in law.

Section 31 of the Scotland Act 1998 states that "a person in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament”.

The Advocate General wrote: “The statement required by Section 31(1) is an important safeguard that the Scottish Parliament acts within its competence. But it is a statement required of the person introducing the Bill, not the Lord Advocate.” 

The Lord Advocate had therefore referred the matter to the court because of a self-imposed restriction related to the ministerial code, rather than on the basis of a question arising out of the Scotland Act, he argued.

The Court president, Lord Reed, said the ministerial code was a document of “an administrative character, it is not a piece of legislation”.

Ms Bain disagreed with the Advocate General’s written argument, but acknowledged ministers were not bound by her advice.

She said: “The minister who's proposing the bill has to consciously and responsibly apply their mind to the Section 31 test. 

“As a matter of law, the minister is not bound by the Lord Advocate’s advice, and there may be circumstances in which the minister could probably take a different view.

“However, that view would really require to be underpinned on a rational basis, and a view reached in good faith, and even though the ministerial code is there, and it requires the Bill to be clear by the Lord Advocate… there is no doubt that  this issue arises arises by virtue of Section 31.

“I think the Advocate General makes a point that I'm introducing a self-imposed barrier by virtue of the way in which I've looked at matters and applied the ministerial code, and for that reason it doesn't this issue doesn't arise by virtue of the eyes, but it plainly does. 

“Because the whole question of legislative competence has to be addressed by the Minister presenting the bill to Parliament, and he or she could not do so if he didn't consider it because it was incompetence.”

Lady Rose then asked Ms Bain: “What is it that prevents them [a minister] from taking a different view from the law officers?

“If the law officers say, I don't believe this is in legislative competence, but the person in charge has the view that it is, what is it that stops them from saying, Thank you for your advice but I am prepared to make that statement?”

Ms Bain said: “That would be a significant departure from the way in which government operates currently, but there is nothing.

"As I've said, as a matter of law, the minister is not bound by the Lord Advocate’s advice, and there may be circumstances where they could properly take a different view. But that different view has to be based on a sound rationale, and reached in good faith. 

“And the norm is that ministers of the Scottish Government take advice from the law officers who are Scottish ministers. 

“And it would be an unusual circumstance for it to be reached that te minister didn't accept or agree with the law officers advice, but in principle, my Lady makes reasonable point.”

She added later: “The present reference is not academic or premature, and I say the Advocate General’s submissions to the effect that this Court should refuse to entertain the reference should therefore be rejected.”