Nicola Sturgeon's Indyref2 Bill 'obviously not just an opinion poll', says UK Government

“Evidently the purpose of the draft bill is not just to have an opinion poll,” he said, citing Nicola Sturgeon’s own words at Holyrood on the point, as well as the SNP’s 2021 manifesto.

The Scottish Government's argument that a Bill for a referendum on the Union did not legally "relate to" the Union was incoherent and contrary to all language and common sense, he said.

He also said a written intervention by the SNP about international law and the right to self-determination “fails at almost every analytical stage”.

The Court is considering whether Holyrood could stage Indyref2 under its existing powers, or would need Westminster' consent, as in 2014.

Sir James was speaking the day after the Scottish Government’s most senior law officer argued before five justices that the Bill was only seeking views on independence.

The Lord Advocate Dorothy Bain KC said the Bill’s legal effect would be “nil”, as it would not change others laws directly, and said the justices should not speculate about any “political fallout” from the result.

Earlier this year Ms Bain refused to agree to the Indyref2 Bill being introduced to Holyrood in case it strayed into areas reserved to Westminster, namely the Union and the UK Parliament.

However, at Nicola Sturgeon’s request, the Lord Advocate asked the Court for a definitive ruling on whether the Bill would “relate to” those areas - if it does the Bill would be legislatively incompetent and "not law". 

The First Minister has said that if the Court allows the Bill to proceed, she will hold Indyref2 on 19 October next year.

If not, she has said she will fight use the next general election as a “de facto” referendum on the single question of independence.

Ms Bain argued yesterday that the Bill’s legal purpose was purely to ascertain the views of the electorate on the question, ‘Should Scotland be an independent country?’, and no more.

Its connection to the Union was only “loose and consequential”, she argued.

However Sir James said that was manifestly not the case, and the Lord Advocate’s submission was “untenable effectively on a true and fair reading” of the authority she had cited. 

He also said legislation did not need to change another law to have a “legal effect”.

He said: “The key provisions of the draft Bill are self-evidently, squarely and directly about the Union. 

“The draft Bill, if introduced and passed, would set up a referendum.

"That is the most targeted form, to put it neutrally, of seeking electoral views. 

 “The referendum which the draft Bill purports to legislate for would be the very question whether, in the view of those participating, the Union should continue, whether Scotland should become an independent country, to take the referendum question proposed.

“The union, if that happens, would end. You don't need minutely to cut purpose and effect. They are both obvious here and they coincide.

“What are the provisions is really about? They are about seeking the views of those entitled to vote in the referendum for the purpose of furthering the Scottish Government's avowed aim to end the Union and to make Scotland independent of the United Kingdom.”

He said the Lord Advocate’s argument about such a referendum not relating to the off-limits matter of the Union was “untenable” and based on a tortured use of the language.

He went on: “The Lord Advocate’s case has to be that legislation which would directly regulate a referendum on the very subject matter that is reserved does not even ‘relate to’ that subject matter. 

“That, we respectfully submit, is untenable. The the Union is the very and the sole object of the referendum that the Bill purports to set up. That's why it's been put forward.”

PA (Image: PA)

He said the Lord Advocate’s argument that the referendum would not be “self-executing”, meaning it would directly change other laws, didn’t mean it didn’t relate to the Union. 

“The draft Bill will be legislation directly to do with, and intended to create effects, on the constitutional arrangement of the Union. It relates to the Union whether there is immediate and direct legal effect flowing from that result or not.

“The Bill, if it were to be introduced and became an Act, would provide the legal basis for the referendum. 

“And that is why there hass no doubt in recent days been repeated emphasis by the First Minister on this court process has been one of invitation to you [the justices] to, as she put it, pave the way for a lawful referendum. 

“Evidently the purpose of the draft bill is not just to have an opinion poll, but to seek to take political advantage and other advantage of this being a referendum conducted under the authority, whatever its legal effects, of an Act of the Scottish Parliament. 

“Creating further weight to some implication that something should at least follow from a positive outcome of the kind which the Scottish Government no doubt hopes for.

“The Scottish Government are self-evidently setting that process up for a purpose.

“It is entirely clear, if one’s adopting any form of realistic approach to this, it is evident that they consider and intend that the referendum will further the cause of independence.

“That's no doubt why the draft Bill would have been introduced but for the intervention of the Lord Advocate’s view [about possible over-reach]... and would have been supported through the Scottish Parliament by the Scottish Government as presently constituted.

“And if it was answered in the way that they no doubt hope [a Yes vote], it is perfectly obvious that they will regard that as an important step towards the termination of the Union, which they will present as a strong and targeted democratic mandate for their cause.”

Sir James said there was “no secret to any of this”, and cited the First Minister’s statement to MSPs about the Court referendence in June, when she “makes clear that she wishes to introduce and pass the draft bill to further the cause of independence”. 

He also referred the justices to the SNP’s 2021 Holyrood manifesto, which said: ”The SNP is clear the referendum must be capable of bringing about independence”.

Both illustrated the true purpose of the Bill, he said.

He went on: “The Lord Advocate goes as far as to submit that the legal effects of the draft Bill are, as she put it in her written case and put it to you orally, relevantly ‘nil’. 

“Even if that is accurate, that is both an ironic and irrelevant please.

“It is not even an accurate plea. 

“There is a need for statutory authority in order to authorise the significant public resource that would be needed to conduct a referendum. The Scottish Government predicted in 2010 the first referendum would cost in the region of £9.5million.” 

Sir James spent most of the morning arguing the Lord Advocate was not entitled to refer the issue to the Court in the first place, arguing her interpretion of the phrase in the Scotland Act 1998 on which she relied was “uncontrolled and surprising”.

He said the Act had a well-design mechanism to allow the Court to consider legislation which had been passed by MSPs in Section 33, but the Lord Advocate was asking for a ruling under a novel route using Schedule 6 on a draft Bill which could be altered in parliament.

He suggested that if the Court agreed to consider it, it could prove the thin end of the wedge.

He asked: “Where is the limit on her case? Suppose the Scottish Government have an early draft of a bill? What if there isn’t a bill at all and they simply have an abstract policy idea?”

He said if there was no limit to what could be referred to the court in this minister, the justices could be asked for a view on an idea “that has just clicked into the head of the First Minister”.

He said: “Unless you can find a clear distinction and cut-off process, it does risk, as it were, dragging the court into the political process, which the structures of the Act are assiduous to avoid, because all of the democratic processes have already happened.”

Urging justices to throw the case out, he suggested the Lord Advocate’s reference was not well-founded in law but a result of politics.

He said the hearing was not driven by the Lord Advocate’s inability to tell Scottish ministers if she thought their draft Bill was legislatively competent, it was those ministers not liking her answer.

He said: “It isn’t as though the Lord Advocate, in this case, cannot answer the question [on competence). The difficulty is that she can answer it and has done so. 

“And the problem for her is that the Scottish Government do not like the answer that she has given on competence.”

Finishing his submission, he added: “This is, to put it at its lowest, a strange reference legally. It comes to the Court in circumstances in which the Scottish Government has not even felt able to introduce a Bill into the Scottish Parliament on the apparent basis that their own law officer is unable to say that the Bill will be within competence. 

“And it comes to the court in circumstances in which it is perfectly obvious that the Scottish Government want to produce legislation in Scotland in order to advance, as they see it, their avowed political agenda of independence and thus ending the Union. 

“And yet, in the same breath, they seek to assert that their draft Bill does not even relate to the union. 

“If in this context, this draft bill does not relate to the Union, it requires an interpretation of the words ‘relates to’ which is contrary, we submit, to all of ordinary language, this Court's consistent case law and common sense, and that is neither a coherent, nor we submit, an attractive place for them to be or to submit that the court should find itself in.”  

Earlier, court president Lord Reed said the present independence referendum case was a “constitutional issue of the greatest significance”.