Reference reveals Lord Advocate's indyref bill doubts

The Scottish Government has published the reference by the Lord Advocate to the UK Supreme Court on the legislative competence of the proposed Scottish Independence Referendum Bill.

It reveals that the Lord Advocate, Dorothy Bain QC, "does not have the necessary degree of confidence" to advise that the Scottish Parliament has the power to legislate for a referendum on Scottish independence without consent of the UK Government consent.

The decision to make the reference was revealed last week by First Minister Nicola Sturgeon when she announced that the Government proposed to hold a referendum on 19 October 2023. She said she wanted to see legal clarity about the matter.

Ms Sturgeon also said that if the Supreme Court accepts the reference but then rules against the Scottish Government, she would seek to use the next general election as a “de facto referendum”.

In the reference, made under para 34 of Schedule 6 to the Scotland Act 1998, it is stated that a minister introducing a bill has to state whether in their view it is within the legislative competence of the Scottish Parliament; under the Scottish Ministerial Code, such a statement must be cleared by the law officers.

It continues: “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.”

As she considers that (1) there is a genuine issue of law that is unresolved; (2) that issue of law is of exceptional public importance to the people of Scotland and the United Kingdom; and (3) it is directly relevant to a central manifesto pledge that the Scottish electorate has endorsed, it is appropriate for her to exercise her powers under the Scotland Act “to obtain a ruling from the Supreme Court on whether the holding of an advisory referendum on independence would relate to reserved matters. The answer to the question referred will determine whether the Scottish Parliament can debate and vote upon the Bill which is the subject of a manifesto commitment”.

The court is being asked to answer the question: “Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be ‘Should Scotland be an independent country?’ relate to reserved matters? In particular, does it relate to (i) the Union of the Kingdoms of Scotland and England… and/or (ii) the Parliament of the United Kingdom’” – matters reserved under Schedule 5 to the Scotland Act.

The court has said that the President, Lord Reed, will give directions on the reference, including whether there are preliminary matters to be addressed, when the case will be listed (heard), how many Justices will consider the reference, and which Justices will sit on the bench. It has yet to confirm when the case will be heard.