An INDEPENDENCE referendum without the consent of Westminster “would have no effect on the Union”, the SNP has said.
In a submission to the Supreme Court, the party claims that holding a vote would have no more than “a loose or consequential connection with any reserved matter” and that a victory for Yes “is not an act of secession”.
The argument comes as the SNP tries to intervene in the Scottish Government’s indyref2 legal battle.
Last month, in a surprise move, the party’s ruling national executive committee unanimously agreed to seek permission to participate in the case.
The intervention led to speculation that the SNP was unhappy with Lord Advocate Dorothy Bain’s impartial approach.
Roddy Dunlop QC, the dean of the Faculty of Law, suggested there was a risk the party’s case could “cut through” the arguments put forward by the bar officer.
However, in its submission to the court, drawn up by Claire Mitchell QC and barrister David Welsh, the SNP insists its argument is “additional and complementary to those set out by the Lord Advocate” and is not intended to “destroy” its position. .
Although the Scotland Act 1998 explicitly states that the Union is reserved to Westminster, legal scholars have suggested for years that there is some uncertainty about whether or not it is lawful for the Scottish Parliament to hold a vote.
The issue has never been definitively resolved by a court.
In her written case, Ms Bain suggested that Holyrood holding its own independence referendum would have no legal effect because it would only be “advisory”.
He told the court that a vote could be taken if the justices ignored the broader political implications.
However, in its application to join the case, the SNP makes clear that if voters back independence it would lead to “a process of negotiation and further legislation”, but these “discussions are separate from the referendum and they don’t report on their purpose.”
The party’s submission said they have long believed that it is not necessary for Holyrood to require Westminster’s consent to hold an independence referendum.
But for the 2014 vote, it was “politically expedient” to agree a Section 30 order transferring the necessary powers as it “removed the threat of legal challenge from the process”.
The application goes on to say that “there have been a number of material changes in circumstances since the 2014 independence referendum which collectively justify asking the Scottish people again for their views in relation to Scottish independence “.
These include Brexit and the “dramatic growth in support” for the SNP and other pro-independence parties.
The SNP also argues that weight should be given to its 2021 manifesto which included an explicit commitment to give the people of Scotland “the right to decide our own future” and “a referendum when the Covid crisis is over to decide whether Scotland should be an independent country”.
The submission says: “Having won election to both the UK Parliament and the Scottish Parliament with a clear manifesto commitment to holding a referendum on independence, the applicant’s position is that he has a duty to the people of “Scotland to try to implement this manifesto. commitment to put into question the vision of those people … in terms of how they choose to be governed.”
They are referring to the convention in the House of Lords which prevents peers from voting against a manifesto commitment made by the UK government.
SNP lawyers argue that “the public have a right to expect the parties (and party groups) that are elected to govern to deliver on their manifesto commitments. It is on this basis that the public casts its votes and it is on this basis that it reasonably expects to be governed in a democracy”.
The SNP, like the Lord Advocate, say the key to any decision by the judges will be on the phrase “relating to reserved matters” in the Scotland Act.
Ms Sturgeon’s party says it “must be given a limited and restricted interpretation … so as not to infringe or to grant the right of the Scottish people to exercise their right to self-determination”.
They then argue that the Scottish Government’s proposed vote “does not itself implement the result or outcome of this referendum”.
“That there will be further secondary discussions between the UK and Scottish governments in the event that the Scottish people indicate their support for Scottish independence does not change that.
“These discussions are separate from the referendum and do not inform its purpose.”
The SNP counters that “the purpose of any legislation to hold a consultative referendum on Scottish independence is, of course, to determine the view of the Scottish people in relation to the issue raised.
“This is an exercise by the Scottish people of their right to self-determination. Implementing the exercise of that right in the event of a vote for independence would require an Act of the UK Parliament.
“Whatever the outcome of such a referendum, Scotland would not become an independent country by default on the day after ‘referendum day’, and could not by law.
“The referendum itself is not an act of secession; it is not a unilateral declaration of independence.
“A negotiation process and subsequent legislation would be necessary to give effect to the result of a referendum in favor of independence.”
The SNP claims that holding a referendum would have no more than a “loose or consequential connection with any matter reserved to the 1998 Act”.
“To attempt to test the views of the Scottish people through a referendum is perfectly competent and, given the continued electoral mandate given to the applicant as set out above, it is democratically unthinkable that the people of Scotland should be deny this right to express his opinion”.
They argue that “the holding of a consultative referendum does not result in a reduction in the scope of the UK Parliament’s powers and also has no effect on the Union”.
They add: “Legislation enabling such a referendum therefore does not concern the respectful submission of the applicant, the Union reservation or the UK Parliament.”
The party’s business co-ordinator Kirsten Oswald said: “The SNP’s application is now before the Supreme Court.
“It is intended to support and complement the arguments for the Bill being within the competence of the Scottish Parliament which are set out in the Lord Advocate’s written case.
“The SNP’s application focuses on the inalienable right of all nations to self-determination enshrined in the UN Charter and argues that the Scotland Act should be interpreted in a way to maintain that right instead of denying it.
“The bill raises a fundamental question of democracy: under the principle of self-determination, Scotland’s future must be decided by those who live here, not dictated by politicians in Westminster.”