The UK Government’s written case to the Supreme Court has said the reference on a Scottish independence referendum should be declined.
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.
The Advocate General for Scotland Lord Stewart QC has published his written submission to the court on Wednesday.
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”.
Nicola Sturgeon
Russell Cheyne
The Supreme Court has been asked to decide whether a prospective Bill would be within the powers of Holyrood
GilesG Photography/SCDI
The submission adds: “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.”
It adds: “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.”
The UK Government’s submission states that the Lord Advocate’s approach gives “rise to surprising consequences”.
Lord Stewart QC said referring the issue to court would allow UK law officers to make a “pre-emptive” reference on any Scottish legislative proposal which is deemed to be “outside of legislative competence”.
The submission also argues the Supreme Court does not normally give “advisory opinions on abstract legal questions”.