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by Margaret Taylor
22 July 2022
Lord Advocate: knowing whether indyref2 is reserved or devolved is of 'fundamental importance'

Lord Advocate: knowing whether indyref2 is reserved or devolved is of 'fundamental importance'

The Lord Advocate has told the Supreme Court she wants it to rule on whether Scotland can hold another independence referendum without the clearance of Westminster because the question is of “fundamental constitutional and public importance”.

First Minister Nicola Sturgeon announced last month that she plans to hold a referendum next year whether or not the UK Government grants the powers to do so via a Section 30 Order.

When that announcement was made Lord Advocate Dorothy Bain QC asked the Supreme Court to determine whether it would be lawful for the Scottish Government to proceed without such an order, whose effect is to temporarily transfer reserved powers to devolved nations.

Her reason, she said, was that she did not have the “necessary degree of confidence” that Holyrood legislation alone would “be within devolved competence”.

Yesterday the Supreme Court confirmed that it will meet to consider the matter in early October. Today the Scottish Government published Bain’s written case in the matter.

In that, she noted that, as “four successive Scottish parliamentary elections” had returned governments “committed to giving the people of Scotland the choice of independence”, it is a “question of law” to determine whether holding a referendum should be reserved or devolved.

“Despite the highly charged political context, it is a question of law,” she wrote. “It is therefore a question that can only be authoritatively determined by this court.”

She added that it is in the public interest to have that determination and the court’s response would be to the benefit of “the Scottish Parliament, the Scottish Government and the people of Scotland (indeed, people throughout the United Kingdom).”

The UK Government had attempted to have the matter thrown out without a full hearing, with the Advocate General for Scotland, Lord Stewart, asking the Supreme Court to consider only whether it would be appropriate for it to accept Bain’s reference rather than looking at the substance of the question itself.

However, the court said on Monday that it must consider the Advocate General’s position as well as how it should answer Bain’s query if it decided it was appropriate to accept it.

“To answer these questions, the court will need to consider the circumstances giving rise to the reference and the substance of the Lord Advocate’s question,” it said.

“The court therefore decided that it should hear argument on both issues at a single hearing in the interests of justice and the efficient disposal of the proceedings.”

The matter has been listed for a two-day hearing on 11 and 12 October.

In response to Bain's submission a UK Government spokesperson said that people in 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 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 added.

“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.”

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