Roddy Dunlop questions SNP indyref2 legal battle intervention

Last month, Nicola Sturgeon asked the Lord Advocate to use her power to refer so-called "devolution issues" to the Supreme Court for clarification on whether Holyrood could consult people on their views on independence, provided there was no automatic legal effect. 

READ MORE: UK Supreme Court told legal effect of Indyref2 Bill would be 'nil'

Although the 1998 Scotland Act explicitly states that the Union is reserved to Westminster, legal academics have, for years, suggested there is some uncertainty around whether or not it is lawful for the Scottish Parliament to hold a vote.

The issue has never been settled definitively by a court, until now. The Supreme Court will assess the Lord Advocate's reference in mid-October. 

In her written case, Ms Bain suggested Holyrood staging its own independence referendum would have no legal effect because it would only be "advisory."

She told the court a vote was possible if the justices ignored the wider political implications. 

“The wider motivations and aspirations of the Scottish Government and other political parties are not legally relevant,” the document said.

“The legal consequences of the Bill are, relevantly, nil.

“Any practical effects beyond ascertaining the views of the people of Scotland are speculative, consequential and indirect and should not properly be taken into account.”

Ms Bain also set out why the issue could be seen as being beyond Holyrood's powers. 

She said it could be argued that a referendum, although nominally to ascertain voters' views about independence, would have the clear purpose of achieving independence and would have "significant political effects regardless of its outcome". 

The lawyer asked the court for clarity on what she described as a "festering issue."

Last weekend, in a surprise move, the SNP’s ruling national executive committee unanimously agreed to ask the Supreme Court for permission to take part in the case. 

READ MORE: SNP to apply to intervene in Supreme Court case

Kirsten Oswald, the party's deputy leader at Westminster, said the party "wishes to give full support to the argument that an advisory referendum is within the power of the Scottish Parliament, and also make the case that Scotland has a right to self-determination, which – as things stand with Westminster’s democracy denial – can only be upheld through legislation in the Scottish Parliament under its current powers.”

Writing in Holyrood magazine, Mr Dunlop, the Dean of the Faculty of Advocates, said Ms Bain’s case was “a remarkable exercise in restrained neutrality.” 

He said the SNP’s application to intervene was also “remarkable.”

“The Reference is being brought by the Scottish Government’s law officer, and given the overlap between the SNP and the Scottish Government, one might have thought that the party’s interests would already adequately be covered.

“Ordinarily, that would doubtless be the case. But here we return to my first point – the studied neutrality of the Statement of Case. 

“I suspect (but of course do not know) that such neutrality is not welcomed by some in the party, who would prefer a more adversarial approach to be adopted in arguing the Reference, and are thus seeking permission to make their own submissions.”

Mr Dunlop said there was an interesting relationship between the Lord Advocate’s written statement and the SNP’s application to intervene. 

“As the core argument in favour of the legality of the IndyRef Bill is that this is a simple legal matter, shorn of politics, does a political party seeking leave to intervene in order to advance the argument more volubly for its own political reasons not rather cut across that core argument?” he asked, adding, “one might have thought so but, again, we will have to wait and see.”

READ MORE: Tom Gordon: Nicola Sturgeon’s court case is the start of her long goodbye

Meanwhile, a new paper by Nicola McEwen, professor of territorial politics at Edinburgh University, states that the fate of the union and how to engage with the outcome of the Supreme Court reference is the “most immediate challenge facing the next prime minister.”

However, the academic said that as long as Scotland “remains divided on independence, there is neither a legal nor a political imperative to respond to any claims of an SNP mandate” for a referendum. 

In the paper, prepared by Full Fact and UK in a Changing Europe for the Conservative Leadership Contest, Prof McEwan said: "Ultimately, the future of the Union will be determined by politics, not law. 

“If there is no legal pathway to an independence referendum, Nicola Sturgeon declared that she would regard the next UK general election as a de-facto referendum.

"Such a scenario might suit the Conservatives in the short term, as the party most likely to benefit electorally from opposition to independence within Scotland.

"And so long as Scotland remains divided on independence, there is neither a legal nor a political imperative to respond to any claims of an SNP mandate.

"But such prolonged constitutional limbo could have a debilitating effect on politics and the Union in the longer term and do little to restore intergovernmental relationships already damaged by Brexit."