Indyref2 case 'brought because Sturgeon didn't like lord advocate's advice'
The lawyer representing the UK Government in the lord advocate’s indyref2 case has said the only reason the matter is before the court is that the Scottish Government did not like the legal advice it was given by her.
Appearing in the Supreme Court this morning, Sir James Eadie KC, who is presenting the UK Government’s case on behalf of Advocate General for Scotland Lord Stewart, said Lord Advocate Dorothy Bain’s case was “surprising” because it centres on her not being able to provide a clear answer to Scottish ministers.
The Scottish Government had sought Bain’s advice on whether it could lawfully legislate to hold a second independence referendum in October 2023. She told ministers earlier this year that she did not have the “necessary confidence” that it could and asked the Supreme Court to provide legal clarity on whether a referendum would be for Holyrood or Westminster to oversee.
Eadie dismissed this position as “uncontrolled and surprising” and told the court that the case had been brought because the Scottish Government “did not like” the answer it was given by Bain.
“There’s no difficulty in answering the question, the difficulty is the answer,” he said.
Part of Eadie’s case focuses on the section of the 1998 Scotland Act that says a person introducing a bill in Holyrood must be able to say they believe it is within the legislative competence of the parliament to do so.
No member of the Scottish Government would currently be able to say that about the proposed referendum bill because of Bain’s advice, which ministers are required to seek under the terms of the Scottish Ministerial Code.
While getting clarity on the issue of competence is the point of Bain’s case, Eadie said that, on his interpretation of the Scotland Act, Bain’s inability to advise decisively on the issue is the reason the case should be dismissed.
Supreme Court Justice Lord Sales pushed Eadie on whether the fact of the uncertainty strengthens Bain’s case for the matter to be tested by the court.
“There may be a good arguable case that such a measure could be within competence but because of the uncertainty about that the law officer feels they can’t make the positive statement required in [the Scotland Act],” he said.
“It may still be the case that, if the matter was determined, this would be in competence [but] because [a person introducing a bill] can’t say positively, even though they believe there’s a good arguable case for it, that arguable case is never tested.”
Eadie, however, argued that in his view “the way the law is set up” means the uncertainty would simply preclude the bill from being introduced.
He also argued that Bain’s case should be thrown out without consideration because it focuses on a bill that has not yet been introduced – something he believes is not allowed under the terms of the Scotland Act.
Yesterday, Bain – the Scottish Government’s chief legal adviser – conceded that it is “less than ideal that this court is being asked to decide on a bill that has not yet been introduced”, but noted that the “circumstances of the present case are highly exceptional”.
A “concrete legal issue has crystalised” in terms of whether the Scottish Government has the right to introduce a referendum bill, she said, adding that it is “not premature” to ask the court to decide whether such matters are considered devolved or reserved from a legal standpoint.
“The answer will have a concrete effect,” she said. “It will determine whether the draft bill is introduced to parliament or not.”
Responding to Eadie’s submissions this afternoon, Bain stressed that her case had been “brought responsibly and after careful consideration as to whether it was appropriate to do so”.
It was not brought as “a triviality” or “on a whim” she said, adding that getting an answer as to which parliament should be responsible for overseeing a vote that could lead to the break-up of the UK “is a matter of the utmost constitutional importance”.
It is likely to be some months before the Supreme Court provides its ruling on the case, with court president Lord Reed yesterday warning that in addition to considering the arguments presented by Bain and Eadie he and his fellow justices have 8,000 pages of documents to scrutinise before coming to a decision.
The judges must first decide whether they can rightly be asked to rule on a case that relates to a bill that does not yet exist. If they decide they can, they will then provide their judgment on whether Holyrood can legislate for indyref2. If they decide they cannot, the question will remain unanswered from a legal standpoint.
In addition to Lord Reed, who is qualified in Scots law, the case is being overseen by English judges Lord Sales and Lady Rose as well as Lord Lloyd-Jones, who has a background in the Welsh court system, and Lord Stephens, who was previously a judge in Northern Ireland.
Bain’s legal team includes Scots solicitor-advocate Christine O’Neill KC – chairman of the law firm Brodies and a longstanding Scottish Government adviser – and barrister Tom Hickman KC.
Eadie’s team includes Scottish silk David Johnston KC.