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Lord Advocate lacks 'confidence' over Scottish independence referendum powers

Lord Advocate Dorothy Bain QC

Lord Advocate lacks 'confidence' over Scottish independence referendum powers

The Lord Advocate "does not have the necessary degree of confidence" that the Scottish Government can stage indyref2 without Westminster permission, official documents show.

Dorothy Bain QC referred the matter to the UK Supreme Court on the day that First Minister Nicola Sturgeon unveiled her "route map" to a second independence referendum.

Sturgeon, who requested the move, told MSPs that it aims to clarify whether or not the Scottish Parliament can legislate for a fresh ballot without the presence of a Section 30 order from the UK Government.

Such an order was issued to enable the staging of the 2014 vote, but Prime Minister Boris Johnson has repeatedly stated his opposition to repeating the process. 

Bain's reference to the Supreme Court has now been published and states that it is necessary that relevant legislation would be within the competence of the Scottish Parliament, and that law officers must provide a statement agreeing this.

It goes on: "The Lord Advocate needs to have the necessary degree of confidence that a Bill would be within devolved competence in order to 'clear' such a statement. In the present case, the Lord Advocate does not have the necessary degree of confidence."

Released through the Scottish Government, the papers say that Bain considers that there is a "genuine issue of law that is unresolved", that this issue is "of exceptional public importance to the people of Scotland and the United Kingdom" and that it is "directly relevant to a central manifesto pledge that the Scottish electorate has endorsed".

It goes on: "It is the first time this power has been exercised by the Lord Advocate. That is a measure of the fundamental importance of the issue and its exceptional nature."

Culture, Europe and International Development Minister Neil Gray said: "There is a substantial majority in the Scottish Parliament in favour of an independence referendum and therefore a clear democratic mandate. However, as the First Minister set out last week, there remains debate over whether the Scottish Parliament has the powers to legislate to hold a referendum.

"A Supreme Court decision on the matter seeks to accelerate us to the point that we have legal clarity. We hope that it will be deemed to be within the legislative competence of the Scottish Parliament. If that outcome is secured we will then introduce the Bill.

"While that decision now rests in the hands of the Supreme Court, we will not comment on the arguments in the case. Our focus remains clear - we will continue to set out the strong and compelling case for Scotland to become an independent country."

However, Scottish Labour constitution spokesperson Sarah Boyack said it is "clear from the document that the Lord Advocate does not have confidence that what the SNP is proposing is legal".

She went on: "With the country in the midst of a cost-of-living crisis, it is deeply disappointing to see Nicola Sturgeon return to the politics of the past. The people of Scotland need action from the Scottish government now, not more constitutional inertia."

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