Legal view

Lord Advocate ‘lacks confidence’ in indyref powers

Scottish Parliament Holyrood
Supreme Court is being asked to rule on parliament’s powers (pic: Terry Murden)

Scotland’s chief law officer has referred legislation on holding another independence referendum to the Supreme Court after revealing that she “does not have the necessary degree of confidence” that the Scottish Government can stage a second referendum without Westminster permission.

Dorothy Bain QC referred the matter on the day that First Minister Nicola Sturgeon unveiled her “route map” to a second independence referendum, but the Lord Advocate’s filing has just been published by the Scottish Government.

The Lord Advocate has asked the Supreme Court to decide if the matter is devolved under the Scotland Act 1998.

In her filing, she said: “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.

Nicola Sturgeon
Nicola Sturgeon presenting her case for independence

“In these circumstances, the Lord Advocate has determined that it is appropriate for her to obtain a judicial determination from the Supreme Court.

“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.”

Released through the Scottish Government, the papers say that Ms Bain considers that there is a “genuine issue of law that is unresolved”, that this issue is “of exceptional public importance to the people of Scotland and the United Kingdom” and that it is “directly relevant to a central manifesto pledge that the Scottish electorate has endorsed”.

Scottish Conservative Shadow Secretary for Constitution, External Affairs and Culture 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.

“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.“

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