THE Lord Advocate’s written case to the Supreme Court has been published by the Scottish Government.
The document was submitted to the Supreme Court this week, after judges decided to move on and hear written arguments from both the Holyrood and Westminster side.
Following the court’s decision to reject a UK Government bid to have the case thrown out without any evidence even being heard, a deadline of August 9 was set for legal representatives to submit their written cases.
Lord Advocate Dorothy Bain (below) submitted hers within days, while her Westminster counterpart is yet to do so.
The document outlines both sides of the argument "in line with the Law Officers’ statutory role acting in the public interest", the Government said.
However, in response to a written question from MSP Alasdair Allan, Bain added: "I will represent the Scottish Government’s interests at the hearing and will argue the case personally."
In the 51-page document, the Lord Advocate says Holyrood should be able to pass the legislation on indyref2 with the aim of finding out “the wishes of the people of Scotland on their future”.
The QC adds that the motivations of the Scottish Government, or political parties, in passing the bill are “not legally relevant”.
“The legal consequences of the Bill are, relevantly, nil," she writes.
“Any practical effects beyond ascertaining the views of the people of Scotland are speculative, consequential, and indirect and should not properly be taken into account.”
She went on: “The legal effects of the bill would be limited to facilitating the holding of a referendum vote, identifying those eligible to vote, the timing of the vote and affirming that the Referendums (Scotland) Act 2020 would apply.
“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.”
Bain also argues establishing whether holding a referendum is a reserved matter is of “fundamental constitutional and public importance”.
She urges the Supreme Court to bring clarity to the scope of the Parliament’s powers in “the public interest”.
The full written case can be read here.
A UK Government spokesperson responded to the publication by arguing Scots want the focus on issues that matter to them, not an independence referendum.
“We preparing our written case on the preliminary points we have noted, as well as the substantive issue, and will submit them to the Court in accordance with its timetable," they said.
“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.”
Bain referred a prospective Holyrood Bill on another vote to the Supreme Court before it was introduced to ascertain if it was within the powers of Holyrood.
On Thursday, the Supreme Court confirmed that arguments will be heard on October 11 and 12 – almost exactly a year ahead of the date of a proposed referendum.
Nicola Sturgeon intends to go ahead with indyref2 on October 19, 2023, if the court rules that Holyrood can legally hold such a vote without Westminster first granting a Section 30 order.
If the court rules in the UK Government's favour, she will use the next General Election as a de-facto referendum.
