The Government lawyer alleges that the plebiscites are consultative and calling them is not a constitutional matter
Nicola Sturgeon will have to wait months for the UK High Court to decide whether the Edinburgh Parliament has the power to call a referendum. Chief Justice Lord Reed warned in a prologue to the first session that “the two-day hearing is just the tip of the iceberg.” The five judges have received 8,000 pages of documentation, Reed explained.
The Scottish Chief Minister’s commitment is to convene the second consultation on independence on October 19, 2023. Her plan could be affected depending on the court’s delay in publishing its conclusion. For the referendum of September 2014, the date of the vote was confirmed in March 2013, while now it is not yet known whether there will be a consultation or not.
The case before the Supreme Court has two issues. In the first, the parties present arguments on the jurisdiction of this court to analyze the second issue, which is whether the Home Rule Act gives the Scottish Parliament powers to call a consultation. In the small print, if he has the power to introduce a bill to organize a referendum in the Holyrood assembly.
The opposing parties are the Scottish Government and the UK Government. The first is represented by the Lord Advocate. That legal adviser exercised his functions until 1998 in the Ministry for Scotland, whose head has a seat in the London Executive. With autonomy, that legal position became an adviser to the Scottish Government. He sits in the Cabinet and is also a state prosecutor.
legality of proposal
The Lord Advocate, Dorothy Bain, has changed, like all her colleagues, the initials of her rank in the profession (Queen’s Counselor, or QC) for King’s Counsel (KC) after the accession to the throne of Carlos III. She but she retains the male title of Lord Advocate for this position. As the Ministry for Scotland was left without a Lord Advocate, in 1998 it created an Advocate General. He is now attorney Keith Stewart.
Bain explained to the judges that, in the absence of a decision from this court, she does not have the certainty to decide whether the bill that Sturgeon presented on June 28 is legal to be introduced in Parliament. Stewart will develop her arguments on Wednesday about the Supreme Court’s non-competence to analyze bills, but Bain argues that it is an earlier phase: the legality of a proposal.
The Lord Advocate wants clarity on a matter that is of public interest, according to her. In the parliaments elected since the ‘no’ victory in the 2014 referendum, there has been a majority of seats elected after committing to holding a new referendum. But the Home Rule Act of 1998 reserves powers over constitutional law to the London Parliament.
Bain reviewed the history of referendums in the UK. They were praised by the great constitutional writer, AV Dicey, at the end of the 19th century. But they began to be held in the 20th century and have all been advisory. “Although they have political consequences,” the lawyer pointed out. Her question to the court is whether the constitutional powers include an advisory vote.
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