THE case on whether a second independence referendum can be held without Westminster’s backing will be heard by the Supreme Court on October 11 and 12.
Here are the arguments which have been set out so far: The Scottish Government THE Scottish Government’s case for holding a referendum on independence has leaned heavily on the vote being “advisory”.
In a 51-page filing, the Lord Advocate Dorothy Bain QC argues the bill would not be “self-executing” and would have no real effect on the Union – which is reserved to Westminster – but would simply be to “ascertain the wishes of the people of Scotland on their future”.
Bain wrote: “The legal effects of the bill would be limited to facilitating the holding of a referendum vote, identifying those eligible to vote, the timing of the vote and affirming that the Referendums (Scotland) Act 2020 would apply.
“The bill would not purport to alter or impede any legal rule constituting or affecting the union of the kingdoms of Scotland and England either directly or indirectly.
“The referendum would have no prescribed legal consequences arising from its result. It is not, unlike some other referendums, self-executing.”
It would not be right for the court to “speculate” on the actions of the Scottish Government after any vote on independence, she said.
The Bill, if the court “embraces the political consequences of any ‘Yes’ vote”, could be beyond the powers of Holyrood, she argued.
But she added: “If, however, its effect is determined by its legal consequences and immediate effect (obtaining the views of the Scottish people on the subject of a reserved matter), then it may not ‘relate to’ the reservation and thus would be within the competence of the Scottish Parliament.”
The UK Government THE submission by the Advocate General for Scotland, Lord Keith Stewart QC, argues the case on a prospective bill, which would legislate for another referendum, would be within the powers of Holyrood – and that it “does not fall within the jurisdiction” of the Supreme Court.
Lord Stewart went on to argue the court should “decline to determine the reference as a matter of its inherent discretion”.
However, he also argues that even if the court does decide it has jurisdiction over the matter, Holyrood would be unable to hold a lawful referendum.
Stewart said: “A referendum on Scottish independence plainly (at least) relates to the reserved matters of the United 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.”
Stewart said it was wrong to consider the referendum as “advisory”, as a yes vote would be used to “build momentum” towards the “termination of the Union”.
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