Britain’s supreme court was on Wednesday told it should dismiss the Scottish government’s request for guidance on holding an independence referendum, with the lawyer representing the UK administration describing Scotland’s arguments as “incoherent”.
Sir James Eadie also argued that the court should not hear the case because the Edinburgh parliament had not passed any law allowing a referendum for it to consider.
His remarks came as the court concluded a two-day hearing on whether Scotland’s first minister, Nicola Sturgeon, can hold an “advisory” plebiscite without the permission of the government in Westminster. Ms Sturgeon’s Scottish National party, which governs in Holyrood with the help of the Greens, wants a rerun of a 2014 referendum in which Scots voted by 55 per cent to 45 per cent in favour of staying in the union.
The first minister has said her party has a mandate from voters to hold another poll after it won the 2021 elections for the Scottish parliament on a manifesto that pledged another vote.
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Ms Sturgeon’s government produced a draft bill for another plebiscite in June, and the country’s top law officer, Dorothy Bain, on Tuesday asked the court to rule on the devolved administration’s legal right to unilaterally hold a plebiscite. However Sir James, the Treasury counsel, told judges on Wednesday it was “not too difficult to discern” that the Scottish parliament lacked the legal authority to hold a referendum.
“This is not a talking shop,” Sir James said when asked by one of the justices why Ms Bain should not ask the court for legal clarity on holding a plebiscite without Westminster’s permission. He added the case risked the court being asked by devolved governments to “provide advice whenever they think a question is interesting”. Sir James said the judges should reject the Scottish argument that an “advisory” referendum would not be related to the union with England, describing the Scottish government’s case as legally “strange”.
“The draft bill is legislation directly to do with, and intended to create effects on the constitutional arrangements of the union,” he said.
The case came “in circumstances in which the Scottish government has not even felt able to introduce a bill to the Scottish parliament on the apparent basis that their own law officer is unable to say that the bill will be within competence”, he added. The panel of five judges will now consider the arguments. The president of the court, Lord Reed, said it might take “some months” before they are ready to deliver their judgment.
Ms Sturgeon wants to hold a referendum in October 2023, and has said if the court rules against her, she would take the question of whether or not to remain part of the UK directly to voters in an election. – Copyright The Financial Times Limited 2022