Lord Advocate lacks confidence in latest independence bill

Dorothy Bain QC

The bill had been referred to the Supreme Court on the question of whether an advisory referendum on independence would relate to reserved matters but the Scottish government failed to publish the Lord Advocate’s accompanying reference until yesterday.

When bills are introduced they must come with a statement cleared by the law officers to the effect that they are within the Parliament’s competence. In this case, Ms Bain has made a reference to the Supreme Court under para.34 of Schedule 6 of the Scotland Act – the first time this power has ever been exercised – because she does not believe the Scottish Independence Referendum Bill is within Holyrood’s legislative competence.

The bill proposes that a consultative referendum be held on 19 October 2023. Under devolution legislation enacted by Westminster, the Supreme Court may rule on devolution issues, such as whether the devolved executive and legislative authorities in Scotland, and Northern Ireland have acted or propose to act within their powers.

Scottish Conservative MSP 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.”

Willie Rennie, the Scottish Liberal Democrat MSP, said: “Many have been suspicious that [Sturgeon’s] court gambit has more to do with the refusal of her own law officers to back her plans to put a referendum bill through the Scottish Parliament than it does any great desire to settle this as a legal matter.”

Culture minister Neil Gray said: “There is a substantial majority in the Scottish Parliament in favour of an independence referendum and therefore a clear democratic mandate. However, as the First Minister set out last week, there remains debate over whether the Scottish Parliament has the powers to legislate to hold a referendum.

“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 the arguments in the case. Our focus remains clear – we will continue to set out the strong and compelling case for Scotland to become an independent country.”