The Supreme Court does not have “jurisdiction” to rule on the legality of a second Scottish independence referendum, the UK government has said in a written submission to the court.
The Solicitor General for Scotland, Lord Stewart QC, published his written submission on behalf of UK ministers on Wednesday.
It argues the case of whether a potential bill, which would enact a new referendum, would be within Holyrood’s powers.
But the case, brought by Scotland’s Lord Advocate, Dorothy Bain, “does not fall within the jurisdiction” of the High Court, according to British lawyers.
Lord Stewart went on to advise the court to “decline to determine the reference as a matter of its inherent discretion”.
However, he also argues that even if the court rules that it has jurisdiction over the case, Holyrood would not be able to hold a legal referendum.
Scotland’s First Minister, Nicola Sturgeon, has stated that she intends to hold a referendum on 19 October 2023, subject to the court’s ruling.
Lord Stewart QC said: “A referendum on Scottish independence is clearly (at least) related to the reserved matters of the United Kingdom of Scotland and England and the Parliament of Great Britain.
“This conclusion is unaffected by whether the outcome of the referendum is advisory or legally binding.”
A UK Government spokesperson said: “People across Scotland want both of their governments to work together on issues that matter to them and their families, and not talk about another referendum on independence.”
The spokesman added: “On the question of legislative competence, the UK Government’s clear view remains that a bill enacting a referendum on independence would be outside the Scottish Parliament’s legislative competence.”
The UK government’s submission also says there are “surprising consequences” that could arise from the Lord Advocate being referred to the court.
It said it could allow UK lawyers to make “preemptive” references to any Scottish bill deemed to be “outside legislative competence”.
In its submission to the court, submitted last month, the Scottish Government strongly relied on the fact that any future referendum would not be “self-executing”, meaning it would be purely advisory and only intended as a way to find out of the views of the Scottish people.
But Lord Stewart QC said it was wrong to regard the referendum as “advisory”.
If the decision favored independence, he said it would be used to “build momentum” towards “ending the union”.
His submission said: “It is of course true that the result of the referendum provided for in the Bill has no legal effect: it is not self-executing.
“But it also cannot be credibly suggested that the outcome of the referendum will be advisory in the sense that it will only be treated as a matter of academic interest.”
It continued: “Were the result to favor independence, it would be used (and arguably used by the SNP as the central plank) to seek to build momentum to achieve that goal: the end of the union and the secession of Scotland.
“It is precisely in that hope that the bill is being proposed.”
The SNP has also made an attempt to intervene in the case, arguing that – as a public body – it would be “just, fair and reasonable” for the party to make arguments to the tribunal.
The hearings will be heard on 11 and 12 October.