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The three key parts of UK’s anti-indyref2 Supreme Court arguments explained

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THE UK Government has published in full its written arguments to the Supreme Court against Scotland having a second vote on independence – these are the key quotes you need to know.

The thrust of the UK argument is this: the Supreme Court should reject the Scottish Government’s reference to have a ruling on its referendum bill and if it does not do so, it must reject the bill on the grounds it is “plainly” outwith the powers of Holyrood to legislate for a second referendum.

Why the Court should reject the reference

This is the UK Government’s first line of defence in the argument. It urges the Supreme Court simply to not accept the reference and decline to rule on the referendums bill.

Keith Stewart is the Advocate General for Scotland

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They argue there is no precedent for the Supreme Court to decide on a bill before it has been introduced to Holyrood.

More interestingly, they also argue that doing so could create a dangerous standard – one that would inflame tensions around devolution.

The key quote

“The Lord Advocate’s approach gives rise to surprising consequences… the effect would be that on any occasion in which the [Advocate General for Scotland] (for example) understands the Scottish Government to be formulating a legislative proposal which he considers to be outside legislative competence, a pre-emptive reference can be made of the issue, rather than waiting for the appropriate moment… if it arises.”

In layman’s terms, this would mean the UK Government would be able to challenge the Scottish Government on its legislative plans in the courts before a bill is even brought forward, which would create serious problems for any Holyrood administration that found itself at odds with the powers in Westminster.

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The UK Government took the Scottish Government to court over two bills about incorporating UN charters into Scots law and won – but it could only do so under the current arrangement of intervening after the bills were passed.

At present, the Lord Advocate advises the Scottish Government on whether Holyrood has the necessary power to legislate before a bill is introduced to parliament. 

If the Supreme Court ruled on the referendum bill before it was even presented formally to MSPs – it was instead referred immediately to the Court – it could allow Westminster to block and legislation in Holyrood, the UK Government argues. 

Opinion polling

Our democracy is not run by opinion polls, as one Scottish audience member reminded a Question Time in Inverness earlier this year.

The National: Dorothy Bain is the Lord Advocate - the Scottish Government's top lawyer Dorothy Bain is the Lord Advocate – the Scottish Government’s top lawyer

But Lord Advocate Dorothy Bain has essentially suggested a second referendum would be merely “abstract opinion polling at considerable public expense”, the Advocate General has argued.

The key quote

“[It cannot be credibly] suggested that the outcome of the referendum will be ‘advisory’ in the sense of being treated as a matter of academic interest only: a referendum is not, and is not designed to be, an exercise in mere abstract opinion polling at considerable public expense. Were the outcome to favour independence, it would be used (and no doubt used by the SNP as the central plank) to seek to build momentum towards achieving that end: the termination of the Union and the secession of Scotland.”

A key plank of the Scottish Government’s argument is that, because referendums are advisory – for example, the Leave vote in 2016 did not automatically eject Britain from the EU – it is perfectly feasible for a referendum to be held without encroaching on the reserved matter of the Union.

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The Lord Advocate has declared this school of thought complete bunk, in so many words.

The effect of the bill

The above argument is sustained in the following paragraphs of the submission, accusing the Scottish Government of  “unrealistic casuistry” – casuistry being clever but fundamentally flawed reasoning – by suggesting the UK Government would need to prove a referendum would have a “direct” effect on the Union.

The key quote

“Indeed, there is an air of unrealistic casuistry about a contention which emphasises that the question of competence to legislate for a referendum on independence is of exceptional public importance where a further referendum on independence is a central manifesto pledge of the governing political party, whilst also characterising the legal effects as nil and the practical effects as limited and speculative.”

Obviously the effect of the vote would be to determine the future of the Union, the UK Government has argued.

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But they have taken direct aim at the coherence of the Lord Advocate’s reasoning here, accusing her of trying to both argue that it is of vital importance the vote is held, while simultaneously claiming it would theoretically be of little importance once conducted; the argument falls between two stools.

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What happens next?

The case will be heard on October 11 and 12 this year – just under a year prior to the date the Scottish Government hopes to hold a second vote.

The SNP have also applied to intervene in the case but this has yet to be approved by the Court.

Supreme Court judges will hear both sides of the argument and decide whether a referendum can go ahead.

If it can, it is planned for October 19, 2023, and the campaigns both to save and end the Union begin.

But if the Court sides with Westminster, then the SNP and the Scottish Greens have vowed to fight the next election on the sole issue of independence. Should pro-Yes parties reap more than 50% of the vote, the Scottish Government would take this as a mandate for independence.

You can read the full submission here.

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