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by Roddy Dunlop
28 July 2022
The Lord Advocate's reference to the Supreme Court is an exercise in restrained neutrality

The Lord Advocate's reference to the Supreme Court is an exercise in restrained neutrality

In an entirely unsurprising development, the Lord Advocate’s reference to the United Kingdom Supreme Court has sparked varied comments and reactions on social media.

Legions of armchair lawyers and keyboard warriors have offered their tuppenceworth. Here is mine, in three chapters.

First, the Statement of Case is a remarkable exercise in restrained neutrality. The Statement is a party’s written submission and very much sets the tone for the argument in court (set for 11-12 October 2022).

Ordinarily, one would expect the Statement to advocate the party’s case, and to attack that of the “other side”. Not so here.

The Lord Advocate – a respected QC who has embraced the independence of thought that is the hallmark of the Bar for her entire working life – plays the Statement with an entirely straight bat. She sets out both sides of the argument, as she sees them, and simply asks the court to tell her what the answer is.

Second, in seeking that answer the Lord Advocate stresses a point that ought to be obvious, but which if often obscured: the court deals only in law, and not in politics.

Thus the Statement reminds the court that it is ill-equipped to predict or cater for the political consequences of its decision on the Reference.

This is, as Professor Adam Tomkins predicted a few weeks ago, the core of the argument in favour of the Bill: albeit the Scottish Government cannot legislate on anything that “relates to” the Union, a referendum that simply asked the public whether Scotland should leave the Union would not actually “relate to” the Union, because it would have no legal, only political, effect.

If that looks like dancing on the head of a pin, that’s because it probably is – but legal questions often turn on fine distinctions.

Finally, and most recently, we have the SNP’s application to intervene in the Reference.

This is remarkable in itself: the Reference is being brought by the Scottish Government’s law officer, and given the overlap between the SNP and the Scottish Government one might have thought that the party’s interests would already adequately be covered.

Ordinarily, that would doubtless be the case. But here we return to my first point – the studied neutrality of the Statement of Case. I suspect (but of course do not know) that such neutrality is not welcomed by some in the party, who would prefer a more adversarial approach to be adopted in arguing the Reference, and are thus seeking permission to make their own submissions.

What the court will make of the application to intervene remains to be seen, but for the moment this third point has an interesting relationship with the second - as the core argument in favour of the legality of the IndyRef Bill is that this is a simple legal matter, shorn of politics, does a political party seeking leave to intervene in order to advance the argument more volubly for its own political reasons not rather cut across that core argument? One might have thought so but, again, we will have to wait and see.

Roddy Dunlop QC is Dean of the Faculy of Advocates.

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