Scottish Lord Advocate points to Welsh referenda as part of case for Indyref 2

Scotland’s top law officer has pointed to Wales’ 2011 devolution referendum as part of the case for allowing the Scottish Government to hold a second advisory referendum on Scottish independence.

The document setting out the case for the second independence referendum, written by Lord Advocate Dorothy Bain QC, was submitted to the Supreme Court this week and published by the Scottish Government today.

In a 51-page filing, she referred a prospective Bill on a referendum to the UK Supreme Court earlier this month so judges can rule if it is within Holyrood’s powers.

Her document points to the fact that referendums had now become “an established part of the constitutional arrangements of this country” with “four referendums of national significance […] held since 2000”.

The second of these was “a referendum was held in Wales on the proposed transfer of legislative competence to the Welsh Assembly,” just 14 years after the original devolution referendum.

“Whilst detailed legislative provision has been made for the conduct of referendums within the United Kingdom, there is little consistency in their use and no consistent practice in respect of their legal effect,” the document says, with some being binding and others, like the Brexit referendum, advisory only.

The case also points to the fact that it is already accepted that the parliaments of Wales and Scotland can hold referenda on constitutional issues governing the future of their own nations as “the devolution settlements for Scotland and Wales now declare that the devolved institutions can only be abolished on the basis of a referendum of the people of those countries”.

‘Speculative’

The Scottish Government’s case for holding a referendum on independence has leaned heavily on the vote being “advisory”, according to the court document.

The Lord Advocate argues the Bill would not be “self-executing” and would have no real effect on the union – which is reserved to Westminster – but would simply be to “ascertain the wishes of the people of Scotland on their future”.

She wrote: “The legal effects of the Bill would be limited to facilitating the holding of a referendum vote, identifying those eligible to vote, the timing of the vote and affirming that the Referendums (Scotland) Act 2020 would apply.

“The Bill would not purport to alter or impede any legal rule constituting or affecting the union of the kingdoms of Scotland and England either directly or indirectly.

“The referendum would have no prescribed legal consequences arising from its result. It is not, unlike some other referendums, self-executing.”

It would not be right for the court to “speculate” on the actions of the Scottish Government after any vote on independence, she said.

“Beyond the immediate effect of ascertaining the will of the people of Scotland, the practical effects of an advisory referendum are speculative,” she wrote.

“The court ought not to engage in such speculation because it is not equipped to do so.”

The Bill, if the court “embraces the political consequences of any ‘Yes’ vote”, could be beyond the powers of Holyrood, she argued.

But she added: “If, however, its effect is determined by its legal consequences and immediate effect (obtaining the views of the Scottish people on the subject of a reserved matter), then it may not ‘relate to’ the reservation and thus would be within the competence of the Scottish Parliament.”

Ms Bain also stressed the importance of the question the court has been asked to answer.

“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.

“The Lord Advocated believes it is in the public interest that clarity be brought to the scope of the Scottish Parliament’s powers in respect of the issue.”

The court has said arguments will be heard on October 11 and 12.

‘Submit’

A UK Government spokesperson said: “People across 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.

“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.”