Lord Advocate lacks 'necessary confidence' on legality of indyref2

Dorothy Bain said she did not believe any referendum planned for next year would be legally binding.

Lord Advocate lacks ‘necessary confidence’ on legality of Scottish independence vote plans STV News
Indyref2: The First Minister set out plans for a vote next year.

Scotland’s top law official “does not have the necessary degree of confidence” a vote on independence from the UK can be held as planned next year.

Nicola Sturgeon set out proposals for indyref2 to be held on October 19, 2023 as part of the Scottish Independence Referendum Bill published alongside the Greens last week.

The First Minister asked Lord Advocate Dorothy Bain to refer the bill to lawmakers in London to determine whether the legal framework exists for a vote to take place.

However in a ruling published on Tuesday, Bain said the Scottish Government may not have the necessary powers to legislate on the vote under the terms of the Scotland Act 1998.

She added any referendum poll would not be “legally binding” and would simply serve as an indication of public feeling towards the issue.

The ruling states: “The Lord Advocate needs to have the necessary degree of confidence that a Bill would be within devolved competence in order to ‘clear’ such a statement.

“In the present case, the Lord Advocate does not have the necessary degree of confidence.

“The Bill does not stipulate what should happen in response to the result. The Bill provides only that the referendum should be held.

“Consequently, as a matter of law, the legal effect of a referendum held pursuant to the Bill would be nil.”

If the Supreme Court returns a verdict that even an indicative vote was not within the powers of the Scottish Parliament, the First Minister said the next general election would act as a “de facto referendum”, with the SNP running on the single issue of independence.

The case will be heard by supreme court president, Lord Reed of Allermuir, it was announced last week.

Lord Reed will have the final say on when the case will be heard, if preliminary matters are to be discussed, how many justices will consider the reference and which justices will sit on the bench.

Culture, Europe and international development minister, Neil Gray, said: “There is a substantial majority in the Scottish Parliament in favour of an independence referendum and therefore a clear democratic mandate.

“A Supreme Court decision on the matter seeks to accelerate us to the point that we have legal clarity. We hope that it will be deemed to be within the legislative competence of the Scottish Parliament. If that outcome is secured we will then introduce the Bill.

“While that decision now rests in the hands of the Supreme Court, we will not comment on the arguments in the case. Our focus remains clear – we will continue to set out the strong and compelling case for Scotland to become an independent country.”