Nicola Sturgeon’s request for a supreme court ruling on the legality of holding a second Scottish independence referendum without Westminster’s permission should be thrown out as “premature”, the UK government has suggested. Scotland’s lord advocate, Dorothy Bain QC, wrote to the supreme court at the first minister’s request two weeks ago seeking clarity on whether the Holyrood parliament can legislate to stage a second referendum without clearance from Westminster under a section 30 order, which Boris Johnson has repeatedly refused to grant. Last week the text of that letter was released, confirming that Bain fears such a bill would not be legislatively competent under Holyrood’s devolved powers. Lodging an initial response with the supreme court on Tuesday, UK government lawyers say their “clear view” remains that a bill legislating for a referendum on independence would be outside the legislative competence of the Scottish parliament. Further, they point out that the Scotland Act 1998 sets out a statutory process to test whether legislation is within Holyrood’s competence, but that this process only starts after a bill has been debated and passed by MSPs, and so that current request for the court to examine the bill is premature. This echoes a judgment from the court of session, Scotland’s highest court, made last year in response to a case brought by independence campaigner Martin Keatings. He wanted judges to rule on whether Holyrood had the legal powers to hold another referendum, but the case was dismissed as “hypothetical and premature”.
A UK government spokesperson said:“We have been clear that now is not the time to be discussing another independence referendum, when people across Scotland want both their governments to be working together on the issues that matter to them and their families. However, following the lord advocate’s referral of the Scottish government’s draft Scottish independence referendum bill, the UK government has today lodged its initial response with the supreme court. “The papers confirm that the advocate general for Scotland will become a formal party to the case, and ask the court to consider whether it should accept the lord advocate’s referral.”
The development comes as early candidates for the Tory leadership make their pitches to Scottish members. Writing in the Scottish Daily Mail on Tuesday, Penny Mordaunt vowed to overturn the SNP’s electoral dominance by breaking down its “yellow wall”, and said she would refuse to “play Nicola Sturgeon’s games” on the timing of a second vote. On Sunday Sajid Javid and Jeremy Hunt told BBC News that at least a decade should pass before another referendum on independence is held.