Last week, Nicola Sturgeon announced that her Referendum Bill, which aims to legislate for a vote to be held on 19 October 2023, had been referred directly to the High Court. Legal commentators are divided over whether Holyrood can hold a second independence vote without Westminster’s consent because, while referendums are being granted, the Union is on the back foot. The government said Lord Advocate Dorothy Bain (below) decided to refer to the High Court “after considering a number of factors, including the constitutional importance of the matter and the fact that questions of law remain unresolved”. Bain’s submission includes a full copy of the referendum bill which the SNP-Green government intends to push through the Scottish Parliament. He goes on to say: “The Lord Advocate considers: “(1) There is a genuine issue of law that has not been resolved. “(2) This legal question is of great public importance to the people of Scotland and the United Kingdom; and “(3) It is directly related to a central manifesto commitment which has been endorsed by the Scottish electorate.” The memorandum adds: “In the circumstances, the Lord Advocate considered it appropriate to exercise her powers … to obtain a decision from the High Court as to whether the holding of an advisory referendum on independence would relate to reserved matters. “The answer to the question put will determine whether the Scottish Parliament can debate and vote on the manifesto commitment bill.” Bain asked the High Court to answer the question: “The provision in the proposed Scottish Independence Referendum Bill which provides that the question to be put in a referendum will be ‘Should Scotland be an independent country?’” related with cautious subjects? “In particular, it concerns: (i) the Union of the Kingdoms of Scotland and England (Para. I (b) of Schedule S); and/or (ii) the Parliament of the United Kingdom (Para. I (c) of Schedule 5 );” The submission says “the Lord Advocate does not have the necessary degree of confidence” to have answered the question herself. Tory MSP Mordo Fraser said the line was “disastrous”, writing on Twitter: “Now we know why @scotgov couldn’t bring the Bill to the referendum – the Lord Advocate couldn’t certify it as falling within the devolved remit ». Donald Cameron, the Tory constitution spokesman, said the Scottish Government had its priorities “all wrong”. He added: “Scotland’s top legal official is not confident that the First Minister’s plan to hold a divisive and unwanted referendum has any legal basis. “Again we can see exactly what the SNP are doing – playing political games by going to court to raise grievances.” READ MORE: How would a ‘de facto indyref2’ deliver independence for Scotland? SNP minister Neil Gray said: “There is a significant majority in the Scottish Parliament in favor of a referendum on independence and therefore a clear democratic mandate. However, as the First Minister said last week, there is still debate over whether the Scottish Parliament has the powers to legislate for a referendum. “A Supreme Court decision on the matter seeks to speed us up to the point where we have legal clarity. We hope that it will be seen as falling within the legislative competence of the Scottish Parliament. If this result is secured, then we will introduce the Bill. “While this decision is now in the hands of the Supreme Court, we will not comment on the arguments in the case. Our focus remains clear – we will continue to make the strong and compelling case for an independent Scotland.” The government added that the Lord Advocate’s full written case would be filed in due course. If the High Court rules that Scotland cannot legally hold indyref2 without Westminster’s consent, the First Minister said the SNP would fight the next general election as a “de facto” referendum. The SNP will aim to win more than 50% of the vote in Scotland in order to secure a term.
