THE UK Government has set out its arguments for denying indyref2 in newly published papers detailing case to the Supreme Court.
The Advocate General for Scotland – Westminster’s top lawyer on Scottish affairs – has argued that Holyrood does not have the ability to hold a second referendum without the UK Government’s permission.
The papers, published on Wednesday, argued that the SNP’s proposed referendum bill - which is of central importance in the Supreme Court case - related directly to reserved matters as set out in the Scotland Act, which dictates the terms of the devolution settlement.
The Advocate General more broadly argues the Court should reject the Scottish Government’s reference to have the case heard, calling the SNP’s case “abstract and premature” because the bill has not yet been introduced to the Scottish Parliament.
Their argument also rests on Lord Advocate Dorothy Bain’s admission she is not confident the referendum bill published by the Scottish Government is within Holyrood’s powers.
The submission reads: “Parliament is unlikely to have intended the time of the Scottish Parliament, or the resources of the Supreme Court on a Schedule 6 reference, to be taken up with matters which the Scottish Government’s own Law Officer considers to be outside competence.”
It added: “The scope of the reservation is self-evident: it is the Union. It is not the dissolution of the Union: whether a referendum were to support or reject independence, it would equally relate to the Union. The way in which the question on the referendum is framed, neutral or otherwise, does not affect the connection to the reserved matter.”
Stewart goes on to argue that the Scottish Government’s suggestions a second vote would merely be “advisory” are not credible, adding: “A referendum is not, and is not designed to be, an exercise in mere abstract opinion polling at considerable public expense.
“Were the outcome to favour independence, it would be used (and no doubt used by the SNP as the central plank) to seek to build momentum towards achieving that end: the termination of the Union and the secession of Scotland. It is in precisely that hope that the Draft Bill is being proposed.”
A UK Government spokesperson said: “People across Scotland want both their governments to be working together on the issues that matter to them and their families, not talking about another independence referendum.
“We have today published the papers we have submitted to the Supreme Court, and will set out our case at the hearing in October.
“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.”
The hearing will be heard on October 11 and 12.
If the Scottish Government’s bill and plans to hold a second referendum on October 19, 2023 are defeated in the Supreme Court, the SNP and their coalition partners the Greens have both said they would fight the next election on the sole issue of independence.
A Scottish Government spokesperson said they would not comment on the substance of the argument ahead of the court hearing.
SNP MP Joanna Cherry, who is also a QC, said: "The British Government wants the Supreme Court to throw the case out without even hearing the substantive arguments.
"Their written argument exposes the fact they no longer believe the UK is a voluntary union of nations, instead, they want to impose Westminster control by denying democracy and dismissing the democratic right of the people of Scotland to determine our own future."
She added: "A clear precedent was set by the negotiations leading to the 2014 referendum, when there is a majority in the Scottish parliament to hold an independence referendum the two governments should come together and negotiate the details."
Ross Greer, the Scottish Greens external affairs spokesperson, said: "There is a cast iron mandate to hold an independence referendum and the UK Government knows it. The Tories' attempts to stifle the democratic will of the Scottish people demonstrate that they know how likely the Yes campaign is to win the vote when it does take place.”
Kenny MacAskill, the Alba Party's deputy leader, hit out at the Lord Advocate's role in the proceedings, calling her an "apostate" and suggesting she did not fully believe in the Scottish Government's case.
He told The National: "The Scottish people have voted for a referendum and it’s their democratic right to have one.
"The strategy being pursued by the Scottish government is at best naive and at worst damaging. Irrespective of legal arguments the demand for that democratic right must prevail. The Scottish Government has to push harder politically than their Lord Advocate is in court."
Scottish LibDems leader Alex-Cole Hamilton accused both Nicola Sturgeon and Boris Johnson of being "asleep at the wheel", adding: "The fact that a host of civil servants, the attention of ministers and some of the country's smartest legal minds are all currently focused on this court case rather than on the unfolding cost-of-living crisis is simply mind-boggling."
The full submission can be read here.
