A referendum on Scottish independence planned for next year should be rejected because the Scottish Parliament does not have the right to hold the vote without the UK Government’s permission.
A legal argument against indyref2 put forward by the advocate general for Scotland states the vote “plainly relates to reserved matters” regardless of its advisory nature.
Scotland’s Lord Advocate Dorothy Bain QC last month asked the supreme court to decide whether a prospective Bill, which would legislate for another referendum, would be within the powers of Holyrood.
First Minister Nicola Sturgeon announced proposals for Scotland to go to the polls for a renewed vote on October 19 next year.
If that bid is unsuccessful, the FM said the next general election would act as a “de facto” referendum on the issue.
However, in a written legal submission, Keith Stewart QC said the Supreme Court’s intervention on the plans for the vote would “circumvent the specific statutory procedure” surrounding the legal right for the ballot to take place.
He said the reference “does not fall within the jurisdiction of this court” and advised the court “decline to determine the reference as a matter of its inherent discretion”.
The papers state: “It is submitted that the Scottish Parliament plainly does not have the competence to legislate for an advisory referendum on the independence of Scotland from the United Kingdom.
“To do so impermissibly relates to schedule 5 of the 1998 Act.
“The provision made in schedule six for the deferral of devolution issues directly to this court was not intended to circumvent the specific statutory procedure in section 33 of the 1998 Act.
“If the court decides that it does have jurisdiction, the AGS submits, secondly, that the answer to the question referred is ‘yes’.
“A referendum on Scottish independence plainly (at least) relates to the reserved matters of the Union of the Kingdom of Scotland and England and of the Parliament of the United Kingdom.
“That conclusion is unaffected by whether the referendum is, in its outcome, advisory or legally binding.”
A hearing on the matter will be held in London on October 11 and October 12.
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 have submitted our written case to the Supreme 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.”