Scottish independence: October referendum plans in jeopardy as Bill referred to Supreme Court over 'lack of confidence' MSPs can legislate

The Scottish Government have been dealt a major blow in their plans for a referendum in October next year after Scotland’s chief law officer admitted she had a “lack of confidence” Holyrood could legislate on a re-run of the 2014 vote.

Lord Advocate Dorothy Bain QC made the admission as she referred legislation to the Supreme Court to decide whether the Scottish Parliament has the necessary powers to hold such an indicative vote.

It comes after Nicola Sturgeon announced her ambition to hold another vote on October 19 next year.

In an 18-page submission to the Supreme Court, Ms Bain warned she needs to have enough confidence in Holyrood’s powers to hold a referendum.

The decision is a major blow to SNP hopes of a referendum next year.


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The admission sparked a furious response from opposition parties, who accused the SNP Government of playing “political games”.

The Lord Advocate, who is still expected to argue the Government's case at the Supreme Court, wrote in her filing: “The Scottish Government, the Scottish Parliament and the people of Scotland and the wider United Kingdom ought to have clarity on the scope of the relevant reservations on this issue of fundamental constitutional importance.

“Being questions of law, only this court can provide that clarity and unless the issue is judicially resolved, there will remain uncertainty and scope for argument about the powers of the Scottish Parliament. That is not in the best interests of the people of Scotland or of the United Kingdom.”

Ms Bain told the court she would need to have “confidence” in the competence of the Scottish Parliament to legislate on a certain topic before a Bill could be introduced, and would need to clear a statement to that effect.


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She said: “In the present case, the Lord Advocate does not have the necessary degree of confidence.”

Ms Bain also stressed any referendum held next year would not be legally binding, but would simply indicate the will of the Scottish people on the issue.

“The Bill does not stipulate what should happen in response to the result,” she wrote.

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“The Bill provides only that the referendum should be held.”

Ms Bain will submit a written note of argument to the court, while the UK Government will be asked to respond.

If the Supreme Court returns a verdict that even an indicative vote was not within the powers of the Scottish Parliament, Ms Sturgeon has said the next general election would act as a “de-facto referendum”, with the SNP running on the single issue of independence.

Scottish Tories shadow constitution secretary Donald Cameron accused the SNP of playing “political games”.


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He said: “Now we know why the Scottish Government, shamefully, failed to allow the Lord Advocate to appear before Parliament last week, ahead of the summer recess – because Scotland’s top law officer is not confident that the First Minister’s plan to hold a divisive and unwanted referendum has any legal basis.

“But strip away the legal wrangling and political posturing, this simply boils down to an SNP Government focused on a self-serving, obsessive push for independence, when they ought to be focused on the priorities of the Scottish people.”

Scottish Labour constitution spokesperson Sarah Boyack accused ministers of “constitutional inertia”.

She said: “It is clear from the document that the Lord Advocate does not have confidence that what the SNP is proposing is legal.


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“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.”

Former Scottish Lib Dem leader Willie Rennie accused the SNP of hiding from scrutiny.

The MSP said: "Many have been suspicious that the First Minister's court gambit has more to do with the refusal of her own law officers to back her plans to put a referendum Bill through the Scottish Parliament than it does any great desire to settle this as a legal matter.

"Regardless, this will be seen as so much navel gazing by a Scottish public who are more concerned with paying their bills and putting food on the table.”


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