In a submission to the High Court, the party claims that holding a vote will have only a loose or consequential relationship to any reserved issue and that a Yes victory “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 join the case. The intervention led to speculation that the SNP was unhappy with the egalitarian approach of Lord Advocate Dorothy Bain. Roddy Dunlop QC, the dean of the Faculty of Law, suggested there was a risk the party’s case would “overcome” the arguments put forward by the barrister However, in their court submission, written by Claire Mitchell QC and barrister David Welsh, the SNP insist their argument is “additional and complementary to those set out by the Lord Advocate” and is not intended to “degrade” her position. Although the 1998 Scotland Act expressly states that the Union belongs exclusively to Westminster, legal academics have, for years, suggested that there is some uncertainty about whether or not it is legal for the Scottish Parliament to hold a vote. The issue was never finally resolved by a court. In her written case, Ms Bain suggested that Holyrood holding its own independence referendum would have no legal force because it would only be “advisory”. He told the court a vote was possible if the justices ignored the wider political implications. However, in their application to join the case, the SNP make clear that if voters supported independence it would lead to “a process of negotiation and subsequent legislation”, but these “discussions are separate from the referendum and do not inform its purpose”. The party’s statement said they had long believed it was unnecessary for Holyrood to require Westminster’s consent to hold an independence referendum. But for the 2014 vote, it was “politically expedient” to agree to an Article 30 provision delegating 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 the people of Scotland being asked 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 contained an express pledge to give the people of Scotland “the right to decide their own future” and “a referendum when the Covid crisis is over to decide whether Scotland should be an independent country’. The petition says: “Having secured election to both the UK Parliament and the Scottish Parliament with a clear commitment to a referendum on independence, the applicant’s position is that he has a duty to the people of Scotland to seek to implement this manifesto commitment to put beyond doubt the view of these people … as to how they choose to be governed’. They are referring to 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 has a right to expect that the parties (and groups of parties) elected to govern will implement their manifesto commitments. On this basis the public voted and on this basis they reasonably expect to be governed in a democracy.’ The SNP, as well as the Lord Advocate, say the key to any decision by the judges will lie in the phrase “relating to reserved matters” in Scotland law. Sturgeon’s party says it “should be given a narrow and limited interpretation … so that the right of the people of Scotland to exercise their right to self-determination is not infringed or infringed”. They then argue that the vote proposed by the Scottish Government “does not in itself implement the result or outcome of that referendum”. “That there will be subsequent secondary discussions between the UK and Scottish governments should the people of Scotland support Scottish independence does not change that. “These discussions are separate from the referendum and do not inform its purpose.” The SNP disputes that “the purpose of any legislation to hold a consultative referendum on Scottish independence is self-evidently to determine the view of the people of Scotland in relation to the question being asked. “This is an exercise by the people of Scotland of their right to self-determination. Implementing the exercise of this right in the event of a vote for independence would require an Act of the UK Parliament. “Whatever the outcome of any such referendum, Scotland would not – and could not as a matter of law – become an independent country by default on the day after ‘referendum day’. “The referendum itself is not an act of secession. it is not a unilateral declaration of independence. “It will take a process of negotiation and subsequent legislation to give effect to the result of a pro-independence referendum.” The SNP claims that holding a referendum will only have a loose or consequential relationship with any reserved matter in the 1998 Act. “The pursuit of testing the views of the people of Scotland through a referendum is perfectly capable and, given the continuing electoral mandate given to the applicant as set out above, it is democratically inconceivable to deny the people of Scotland such a right to express their views.” They argue that “the holding of a consultative referendum does not lead to a reduction in the scope of the UK Parliament’s powers and does not, in itself, have any effect on the Union”. They add: “The legislation enabling such a referendum therefore, in the applicant’s dignified submission, does not relate to the Union reservation nor to the UK Parliament.” The party’s Operations Assembly, Kirsten Oswald said: “The SNP’s application is now in the High Court. “It is intended to support and supplement the arguments that the Bill falls within the competence of the Scottish Parliament set out in the Lord Advocate’s written case. “The SNP application focuses on the inalienable right of all nations to self-determination, which is enshrined in the United Nations Charter, and argues that Scottish law should be interpreted in a way that supports rather than denies that right. “The Bill raises a fundamental issue of democracy – under the principle of self-determination, Scotland’s future should be decided by those who live here, not dictated by politicians in Westminster.”
