Lord Advocate publishes indyref2 legal argument to Supreme Court

The Scottish government has published its legal case over Holyrood's right to set up an independence referendum.

The arguments will be put to judges at the Supreme Court in October by Scotland's Lord Advocate Dorothy Bain.

Ms Bain said a referendum vote would only demonstrate the views of people about independence and would not have the legal outcome of ending the union.

The UK government said the Scottish Parliament does not have the power to pass a bill to hold a referendum.

It said legislation on the union was reserved to Westminster.

Ms Bain, the Scottish government's top law officer, referred a prospective bill on a referendum to the UK Supreme Court earlier this month so judges can rule if it is within Holyrood's powers.

In a 51-page submission, the lord advocate stressed the referendum itself was "advisory" would have no legal effect on the union.

She said it would simply be to "ascertain the wishes of the people of Scotland on their future".

Ms Bain said it would not be right for the Supreme Court to "speculate" on what the actions of the Scottish government would be after any vote on independence.

The lord advocate wrote: "The bill would not purport to alter or impede any legal rule constituting or affecting the union of the kingdoms of Scotland and England either directly or indirectly.

"The referendum would have no prescribed legal consequences arising from its result. It is not, unlike some other referendums, self-executing."

Ms Bain added: "Beyond the immediate effect of ascertaining the will of the people of Scotland, the practical effects of an advisory referendum are speculative."

This case really hinges on two words: "relates to".

Would an independence referendum relate to the reserved matter of the union?

It sounds like an obvious question, and indeed the UK government insists that it is not a difficult one to answer.

But it might not be so simple when you dig down to the strict legal interpretation.

Last month, Nicola Sturgeon told MSPs that referendums are essentially advisory, because they simply seek the views of the people. Whether and how the results are delivered is down to politicians and future legislation - as we saw with Brexit.

The Lord Advocate's written case puts this into legalese, and indeed is very carefully drafted to weigh up both sides - but the point is the same.

Whether or not the judges agree will have to wait until later in the year.

The Scottish government wants judges to settle whether MSPs could legislate for a vote on Scottish independence without Westminster's backing.

UK law officers argue this is premature, and want the case thrown out without a ruling either way.

Supreme Court judges have said they want to hear the full arguments from both sides before coming to a decision. These will be heard in London on 11 and 12 October.

First minister Nicola Sturgeon wants to hold an independence vote on 19 October 2023, and is pushing for an agreement with the UK government to allow this.

UK ministers are opposed to this, so Ms Sturgeon wants the Supreme Court to rule on whether Holyrood alone has the power to hold a vote.

The two parties have until 9 August to provide their written submissions to the Supreme Court.

The UK government said it was still preparing its written case for the court and it would be submitted "in accordance with its timetable".

A spokesperson said: "People across Scotland want both their governments to be working together on the issues that matter to them and their families, not talking about another independence referendum.

"On the question of legislative competence, the UK government's clear view remains that a bill legislating for a referendum on independence would be outside the legislative competence of the Scottish Parliament."

Scottish Labour's constitution spokeswoman Sarah Boyack said: "It is for the Supreme Court to consider these issues and provide an answer once and for all about where these powers lie."

Scottish Conservative constitution spokesman Donald Cameron MSP, said: "Nicola Sturgeon's relentless obsession with trying to break up the UK must end. Instead, she is typically creating constitutional grievances to deflect from her own record of failure."