NICOLA Sturgeon’s top law officer has urged the UK Supreme Court to ignore the “political fallout” of an independence referendum, dismissing it as legally “irrelevant”.

The Lord Advocate, Dorothy Bain KC, said the five justices deciding whether Holyrood can stage Indyref2 without Westminster’s consent should look at the law alone.

She acknowledged a referendum would have “political significance”, but its practical effects were “properly characterised as speculative” and therefore not for the Court.

“The wider motivations and aspirations of the Scottish Government and other political parties are not legally relevant,” she said, toward the end of a four-hour submission in London.

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

She said the purpose of a draft Referendum Bill drawn up by the Scottish Government was simply to ascertain the views of people on whether Scotland should be independent.

“The purpose doesn’t extend to securing independence,” she said.

The referendum would be “advisory” rather than “self-executing”, meaning it would not directly change the law.

Ms Bain, at Ms Sturgeon’s request, has asked the Court to give a definitive ruling on whether Holyrood can stage Indyref2 without Westminster’s consent.

Earlier this year, Ms Bain refused to sign off a draft Referendum Bill because she was not confident that it stayed within Holyrood’s devolved powers.

She has therefore asked the Court to say whether it “relates to” the Union and the UK Parliament, issues reserved to Westminster alone.

If the Court decides that Holyrood can proceed, The First Minister has said she will hold Indyref2 on 19 October 2023.

If the Court says Holyrood cannot, she has said she will fight the next general election as a ‘de facto’ referendum on independence.

In the first half of a two-day hearing, Ms Bain said the Referendum Bill would not “relate to” the Union and the UK Parliament, as its legal effect was technically nil.

Its sole aim would be to ask voters, ‘Should Scotland be an independent country?’, the same question used in the 2014 referendum.

The UK Government says this is essentially a bogus argument, and it is clear that the Scottish Government wishes the referendum result to lead to the end of the Union.

Asked by Lord Stephens if she was submitting that an independence referendum wouldn’t have political significance, Ms Bain said: “I say, be realistic about it. 

“It does have some political significance, just as the vote in relation to the withdrawal from the EU from the UK had great political significance.

“But ultimately, when it comes to determining the purpose of the provision, and its legal effects, the political fallout with that is irrelevant for this court. 

“The politics of the issue is not for this court.

"So the politics of this, yes, we could see it would have a political effect, but ultimately for this court, this court is deciding a question of law, in respect of which they do not take account of the political effect of any vote that would arise from Scotland in relation to an advisory referendum. 

“That has to be the approach and it's certainly the approach that this court has spoken about frequently in the way in which to deal with these often sensitive constitutional matters.”

She said later: “Section 1 of the Bill, the purpose provision in the Bill, is to make provision for ascertaining the views of the people of Scotland.

“That is the purpose of the bill. And it's clearly stated. The purpose doesn't extend to securing independence. 

“The question that will be posed to the Scottish people is neutral between a yes and a no vote. The terms of the proposed question are therefore, neutral as to whether Scotland should be independent. 

“The form of the question to be used has to be approved by the Electoral Commission. 

“And it is the same form of question that was used in the 2014 referendum. 

“More generally, the proposed bill is not directed at any particular outcome. 

“Indeed, the general provisions on the conduct of the referendum, which are adopted in the bill by Section 4 are directed towards instituting a fair and balanced campaign. 

“Such a Bill could be supported by parliamentarians and others who want the Scottish voters to reject independence. 

“So the question to be posed is neutral, and therefore the motivations and wider ambitions of the Scottish Government represent a subjective intention which is not to be equated with the objective purpose of the bill. 

“The objective purpose is clearly stated in Section 1, that is to ascertain the views of the people of Scotland. 

“The purpose is not changed by the motivations of those seeking to hold the referendum.”

Ms Bain also said the Bill would not relate to reserved matters as it was connected to the Union in only an “only an indirect or consequential way”. 

She said: “The legal effects of the bill will be limited to facilitating the holding of a referendum vote, identifying those eligible to vote, the time of the roots and the affirming that the Referendum Scotland Act 2020 [which governs the general conduct of referendums] would apply. 

“The bill would not purport to alter or impede any legal rule constituting or affecting the Union of the Kingdom of Scotland and England, either directly or indirectly. The referendum would have no prescribed legal consequences arising from its result.” 

She added: “Beyond the immediate effect of ascertaining the will of the people of Scotland, the practical effects of an advisory referendum are properly characterised as speculative. The consequences attendant on the outcome of the referendum would be political. 

“The government of the United Kingdom has given no assurance or undertaking as to how it would act if the referendum returned a Yes vote.

“Even if the majority of voters were in favour of independence, then the practical realisation of independence would be dependent on political decisions and actions of another of a number of independent parties and bodies, in particular, the Scottish Government, the Scottish Parliament, the UK Government, and the UK Parliament. 

“The holding of a purely advisory referendum does not take the question of the Union out of the hands of the UK Parliament, nor does it purport to do so.”

She said the Scottish Government must be able to canvass the views of the people of Scotland on reserved issues, including independence, just as Holyrood debates them. 

She said: “There are reasons for concluding that the Scottish Parliament is not constrained when ascertaining the will of the Scottish people and that it can do so even where the question is concerned with the subject matter of a reserved matter.”  

She concluded: “Since 2007, at four successive Scottish parliamentary elections, the Scottish electorate has returned governments committed to Scottish independence.

“Separately at each UK General Election since 2015, a majority of MPs from Scottish constituencies have been elected on the same manifesto commitment.

“Against that background and long-standing consensus that Scotland has the right to self-determination, to what extent, if at all, the holding of a referendum relates to reserved matter, is a question of fundamental constitutional and public importance.

“Despite the highly charged political debate, it is a question of law. 

“It is therefore a question that could only be authoritatively determined by this court. 

“I believe it's in the public interest that clarity be brought to the scope of the Scottish Parliament's power in respect to this issue.”

The final half-hour of the day was taken up with initial arguments from the UK Government's lawyer, Sir James Eadie KC, who said the Court should dismiss the Lord Advocate's reference as it was wholly premature and based on a draft Bill that could yet change during its parliamentary passage.

He said the Scotland Act 1998 contained a tried and tested mechanism for the Court to consider fully formed legislation once it was passed, and the different route the Lord Advocate had used to bring the issue to the Court in advance of a Bill even being introduced at Holyrood was inappropriate.

He said that referring a draft Bill at such a stage "circumvents" the established and exclusive mechanism designed in the Scotland Act.

He said: "As a general rule, you don't give advisory opinions on hypothetical provisions in the abstract still less on proposed legislation.

"Not leas, because that draws courts into policymaking and legislative functions in a pretty uncomfortable way.

"And you need therefore the clear parliamentary authority - that you have in the Scotland Act - to enable that process to be undertaken.

"The devolution legislation gives you, as it were, that legislative permission, but it does so in a very carefully delimited way that has obviously been designed with an eye to that case law.

"Because all of the thrust of all of those provisions is to try to make a certain as can possibly be done, that by the time it gets to you, the act is in its final form, as can possibly be mustered prior to it actually becoming law."

Asked by Lord Stephen how that mechanism could be engaged if the Lord Advocate wouldn't let the Bill enter parliament, Sir James said the answer was "so be it".

He said: "Parliament has set up a jurisdictional precondition to the introduction of a bill into the Scottish Parliament, which is that you need to be able to persuade your own law officer [that it's competent]. 

"If you can't even persuade your own law officer that you are within competence, the shutters come down under the scheme of this legislation."