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by Louise Wilson
12 July 2022
Independence referendum: UK Government asks Supreme Court to throw out Scottish Government case

Russell Hart / Alamy Stock Photo

Independence referendum: UK Government asks Supreme Court to throw out Scottish Government case

The UK Government has argued the Supreme Court should throw out the Scottish Government’s case on whether it can legislate for a second independence referendum.

Submitting its initial response today, UK Government lawyers said its “clear view” was that such a move would be outwith the competence of the Scottish Parliament.

But it also says the case is “premature” because the statutory process to test legislative competence is designed for a bill that has completed its passage through parliament.

The Scottish Government’s draft Scottish Independence Referendum Bill has not yet been formally lodged at Holyrood.

First Minister Nicola Sturgeon last month confirmed Lord Advocate Dorothy Bain would take the draft bill to court to “accelerate to the point when we have legal clarity and legal fact”.

She said doing so now would hopefully avoid the legislation being held up after it was passed at Holyrood and therefore delay the planned referendum on 19 October 2023.

However, advice from the Lord Advocate published last week also revealed she “does not have the necessary degree of confidence” that it can stage indyref2 without Westminster permission.

The Lord Advocate must sign off on all bills lodged by the government to confirm it is within competence.

Despite this, Bain agreed to take the case to the Supreme Court using her powers under the Scotland Act.

The UK Government has now lodged its initial response to that referral.

A spokesperson said: “We have been clear that now is not the time to be discussing another independence referendum, when people across Scotland want both their governments to be working together on the issues that matter to them and their families.

“However, following the Lord Advocate’s referral of the Scottish Government’s draft Scottish Independence Referendum Bill, the UK Government has today lodged its initial response with the Supreme Court.

“The papers confirm that the Advocate General for Scotland will become a formal party to the case and ask the Court to consider whether it should accept the Lord Advocate’s referral.”

Responding, a spokesperson for the First Minister said: "The UK government's repeated attempts to block democracy - which now seem to extend to an unwillingness to even make a substantive argument before the Supreme Court - serve only to demonstrate how little confidence it has in its case for the union."

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