SNP publish their written argument in indyref2 Supreme Court case

The written submission sets out the party's case arguing that the Scottish Parliament has the competency to pass a bill legislating for a second independence referendum. 

The document has been published after the SNP successfully petitioned the Supreme Court to submit their own arguments after the Scottish Government’s top law officer, Lord Advocate Dorothy Bain, had previously submitted a case.

The SNP’s submission is now available to read in full.

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The UK Government has also submitted and published its case arguing against Scotland’s right to hold another independence referendum.

One of the key arguments made in the SNP’s submission is that the people of Scotland are a “people” for the purposes of the right to self-determination.

It added: “The Scottish people are therefore entitled as a matter of law to protection of their right to determine ‘their political status and freely pursue their economic, social and cultural development’.”

In its conclusion, it says that the right to self-determination that Scots have is “inalienable and cannot be taken away”.

It argues: "When reaching a determination on the interpretation of the 1998 Act in the circumstances of this reference, there is a strong presumption that an interpretation must be given to the 1998 Act which does not prevent the exercise by the Scottish people of their right nor render it disproportionately difficult for them to do so by, for example, making their right of self-determination conditional or subject to the approval of another ‘people’.

"The leaders of the Conservative and Labour parties at Westminster have made clear they will not countenance a referendum on Scottish independence under any circumstances.

"Regardless of the outcome of any subsequent general election to the UK Parliament, the people of Scotland’s right to self-determination cannot be advanced through that legislature."

On whether the question for a referendum on independence in the proposed bill relates to reserved matters, it adds: "The argument from the Advocate General for a broader interpretation of the phrase ‘relates to’ is premised on an assumption that the Scottish people will indicate their support for Scottish independence.

"While that is the hope of the Intervener, it cannot be assumed, and the fallacy of the Advocate General’s argument is clear if one considers the effect of the proposed referendum in the event that the Scottish people do not indicate their support for independence.

"In that situation, it cannot possibly be suggested on any reasonable basis that the effect of the referendum is anything other than a determination of the will of the Scottish people."

The conclusion continues: "As well as being consistent with international legal norms, the narrow reading of ‘relates to’ is consistent with the statutory interpretation exercise as required by section 101 of the 1998 Act and it is consistent with the overarching purpose of the devolution legislation. The broader reading of ‘relates to’ does not satisfy any of those requirements.

"When answering the questions posed by the Lord Advocate, therefore, the submission of the Intervener is that this court should find that the Scottish Parliament may legislate for a non-self-executing referendum on Scottish independence and, accordingly, the proposed Scottish Independence Referendum Bill does not relate to (i) the Union of the Kingdoms of Scotland and England, or (ii) the Parliament of the United Kingdom for the purposes of the Scotland Act 1998."

Last month the Supreme Court decided that the SNP would be allowed to intervene and submit their written argument, with the requirement that it be 20 pages or less and avoid “repetition of the Lord Advocate’s arguments”.

Now that the three arguments have been submitted and published in full, the case will be heard on October 11 and 12.

The Supreme Court has previously said that the other parties – the UK and Scottish governments – will have the opportunity to respond to the SNP’s written argument before the case is heard.

The Lord Advocate and the UK Government’s top law officer for Scotland, Keith Stewart, will have 14 days to respond to the SNP’s arguments.

Now that the SNP have published the document, the party’s participation in the case will be limited as the Supreme Court said it could only submit written arguments, despite the party asking to be allowed “a short oral submission to supplement”.

Kirsten Oswald, the SNP’s deputy leader at Westminster, previously said that the party’s application to intervene was intended to “support and complement” arguments that the Scottish Parliament has the power to pass a referendum bill.