By Tony O’Reilly-
The lord advocate has confirmed her fears that Nicola Sturgeon’s plans for a fresh independence referendum may be unlawful.
Dorothy Bain QC has now released the letter she wrote to the UK supreme court last week, seeking its ruling on whether Sturgeon has the legal powers to stage a referendum without the UK government’s authority.
Bain told the court she is required to approve a statement by Scottish ministers when they table a new bill that it is legally competent under Holyrood’s devolved powers.
“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,” she told the supreme court. “In the present case, the lord advocate does not have the necessary degree of confidence.”
Her admission confirms her widely held suspicions at Holyrood that Bain has told Sturgeon that to stage an independence referendum without clearance from Westminster under a so-called section 30 order, was likely to be unlawful.
Sturgeon last week revealed her plans to stage a referendum without it, despite significant legal opinion that only Westminster can approve legislation that affects the UK constitution.
The lord advocate’s letter discloses the Scottish government believes a Holyrood-led referendum bill could be legal because it would only be advisory and has no legal force, and would pose a neutral question: “Should Scotland be an independent nation?”
She told the court: “The Scottish government accepts that an act to dissolve the union is not within the competence of the Scottish parliament. It does not necessarily follow, however, that the proposed bill, providing for an advisory referendum on independence, relates to reserved matters.
Court papers published on Tuesday revealed that the Lord Advocate, Dorothy Bain QC, did not have the necessary “confidence” in the legality of the Referendum Bill to give the Scottish Government the green light to introduce it.
Her reluctance meant that Ms Sturgeon had no option but to request that Ms Bain referred the legislation directly to the Supreme Court for a ruling on whether it was lawful, a decision she announced last week.
Under normal circumstances, the Lord Advocate “clears” legislation before it is introduced at the Scottish Parliament to be scrutinised and voted on by MSPs, but Ms Bain’s doubts over the Referendum Bill meant that this could not happen.
In her submission to the Supreme Court, Ms Bain said she needed to have a “necessary degree of confidence that a Bill would be within devolved competence”, adding: “In the present case, the Lord Advocate does not have the necessary degree of confidence.”
It added that she “considers there is a genuine issue of law that is unresolved”, and this is of “exceptional public importance to the people of Scotland”.
The submission lends weight to speculation from legal quarters that the Supreme Court is likely to rule against the Scottish Government, blocking its path to a referendum next year.
Scottish Conservative constitution spokesman Donald Cameron said: “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.”
His Labour counterpart Sarah Boyack added: “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.”
Europe minister Neil Gray acknowledged that “there remains debate over whether the Scottish Parliament has the powers to legislate to hold a referendum”.
He added: “A Supreme Court decision on the matter seeks to accelerate us to the point that we have legal clarity. We hope that it will be deemed to be within the legislative competence of the Scottish Parliament. If that outcome is secured we will then introduce the Bill.
“While that decision now rests in the hands of the Supreme Court, we will not comment on th
“[Given] the advisory nature of the proposed referendum, it is questionable whether the question (or the answering of it) purports to alter the fundamental principle of parliamentary sovereignty nor would it have this effect.”
Prof Michael Keating, a constitutional expert, said Bain had clearly indicated she has doubts about the bill’s legality but was preserving her political neutrality by asking for the supreme court’s ruling.
“It is unusual getting an advisory ruling from the supreme court, because that’s all this really is,” Keating said. “Normally you would wait until a bill has been passed before you refer it [to the court]. It seems to be very prudent.”
Sturgeon said last week that if the court rules against the bill she would use the next general election as a “de facto referendum” where the Scottish National party would be empowered to open talks on independence if it won a majority of votes in Scotland. The Scottish Greens have since claimed votes for their party would count towards that total.
Opposition parties were furious Bain’s letter had been published during Holyrood’s recess: they had asked her to appear before MSPs to answer questions on the supreme court application.
Donald Cameron, the Scottish Conservative’s constitution representative, said: “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.”