Scottish independence: UK government takes case against indyref2 to Supreme Court

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The British government made its legal case against Scotland by holding an independence referendum without Westminster’s consent.

The Conservative government has asked the Supreme Court for permission to publish the submission in its entirety.

It comes after the Tories failed in their bid to have the case thrown out of the higher court before hearing evidence, saying it was ‘premature’.

Scotland’s top magistrate, Lord Advocate Dorothy Bain QC, last month referred a potential referendum bill to the Supreme Court to determine whether it fell within the powers of the Scottish Parliament.

The Scottish government has published its bill, which would legislate for a referendum on October 19, 2023, at the end of June.

Oral arguments are due to be heard in the case in October, but Scotland’s Solicitor General Keith Stewart QC filed the case on Tuesday against the Bill falling within Holyrood’s legislative jurisdiction.

A UK government spokesperson said: “People across Scotland want their two governments to work together on the issues that matter to them and their families, let alone another referendum on independence.

“We submitted our written brief to the Supreme Court today, in accordance with its schedule.

“On the question of legislative competence, the UK Government’s view remains that a Bill providing for an independence referendum would fall outside the legislative competence of the Scottish Parliament.”

In its submission to the court, presented last month, the Scottish government relied heavily on the fact that any future referendum would not be “self-executing”, meaning that it would be purely advisory and only intended to determine the opinion of the Scottish people.

Legal experts are divided on whether this would be legal. Adam Tomkins, a professor at the University of Glasgow and a former Conservative MSP, said in June that an advisory ballot would fall within the powers of Holyrood.

READ MORE: Wee Ginger Dug: Why unionists don’t want to win OR lose the indyref2 Supreme Court case

The SNP also tried to intervene in the case, arguing that as a public body it would be “fair, just and reasonable” for the party to make its case in court.

If the court decides that holding the advisory ballot is outside Holyrood’s powers, Sturgeon has pledged to use the next general election as a de facto referendum on independence.

A UK Prime Minister is unlikely to grant an order under Article 30, which would circumvent the legal issue by allowing Holyrood to legislate for a referendum as it did for the 2014 vote.

Boris Johnson, the outgoing Conservative leader, is expected to be replaced by Liz Truss or Rishi Sunak in September. Both candidates have flatly ruled out accepting a second independence referendum.


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