Judgement on indyref2 court case 'requires time'

1. The UK's highest court has heard legal arguments on whether the Scottish government can hold a second independence referendum
2. President of the Supreme Court, Lord Reed, thanked both sides and told them it would take time to consider the oral and written evidence
3. Lord Advocate Dorothy Bain KC put the Scottish government's case, saying the issue was brought to court "responsibly" and not on a "whim"
4. She said she was seeking legal certainty on a matter which is of "exceptional public importance to the people of Scotland and the UK"
5. Sir James Eadie KC, who led the UK case, said the court could not rule on an "idea" for legislation but only bills in a "state of finality before assent"
6. The Scottish government has published a referendum bill, but it has not gone through the key legislative stages
7. He added that the issue was wrongly being "farmed out" to judges, risking "dragging the court into the political process"
8. The five-strong judges' panel is expected to take a number of months to deliberate over what they heard in the two-day sitting and to read about 8,000 pages of "written material"

That's all...for now

It may take the Supreme Court several months before it issues a ruling, now that the submissions are complete.

BBC Scotland will bring you all the developments on this story as and when they happen.

That's all from our live page team today. Have a good evening.

What comes next?

Philip Sim

BBC Scotland political correspondent at the Supreme Court

It will be a while before there is a result - the judges warned they may need “some months” to chew things over.

Court President Lord Reed noted that the arguments heard in court were “the tip of the iceberg”, with thousands of pages of written material to wade through.

There are three potential outcomes:

• MSPs have the power to pass an independence referendum bill
• they are specifically barred from it
• the court decides it would be premature to decide.

The Scottish government is confident that, regardless of the outcome, it will move the issue on a bit.

If they win, they will move to get the bill through Holyrood swiftly. But they will also use it as a lever to try to box the UK government into signing up to the contest.

If they lose, Scottish ministers will still look to exert pressure - but this time via the public, by arguing that the existing setup blocks Scottish democracy at every turn.

They hope the perceived unfairness of this will prompt a wave of support - which in itself may force UK ministers to engage, or risk the wrath of the electorate.

Whatever happens, the debate over Scotland's future is far from over.

'We will let you have our judgement as soon as we can'

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As Scotland's Lord Advocate concludes, Lord Reed says the Supreme Court justices are "most grateful for the submissions received".

"As I said at the outset, we will require time to consider what we have heard and what we will be reading," he adds.

"We appreciate the importance of this and we will let you have our judgement as soon as we can.”

And with that, the two days of oral submissions are over.

But as Lord Reed pointed out yesterday, the judges also have some 8,000 written pages of submissions to consider, and their ruling may take “some months”.

Sir James's characterisation 'is so unfair'

Bringing this issue to the Supreme Court was "the constitutional right thing to do" says Lord Advocate Dorothy Bain KC.

Sir James's characterisation of what was involved here is unfair. It's just not right that he should say what he said about why we were here. It's so unfair and it's reflected in everything that we've put forward in our case."

Dorothy Bain KCScotland's lord advocate

Ms Bain explains the trigger was the first minister of Scotland, because she recognised the importance of the issue.

Nicola Sturgeon also recognised the importance of making sure that everything is done legally, adds Ms Bain.

'A festering issue since the days of devolution'

BBC

Scotland's lord advocate explains that she decided to make this reference to the Supreme Court "after having given the matter a great deal of consideration".

She goes on to say: "Sir James was suggesting things were to be done willy nilly, just when something popped into somebody's head, that they would make a reference.

"It's to belittle, to minimise the enormity of the issue that's being brought to this court.

"And it's to determine, to show, that the issue is not academic."

Ms Bain says: "It is a real issue, that has been a festering issue since the days of devolution."

'Entirely appropriate' that Supreme Court rules on this case - Lord Advocate

The lord advocate reads out to the court several paragraphs about when a court might deal with such issues that "might otherwise may not be considered ripe for a decision".

While a court must retain its proper role within the constitutional framework, it must also determine whether:

• the question is purely political in nature and should be determined in another forum
• or whether it has a sufficient legal component to warrant intervention on the judicial side.

Ms Bain is drawing a distinction between a litigation process that the courts are so familiar with, as opposed to a reference process under the constitutional role of the court.

It is a different function, but one which raises "legitimate and crucially important constitutional questions not only for Scotland, but the whole of the UK," she says.

"It is entirely appropriate that his court, the Supreme Court, deals with this issue," the lord advocate adds.

'Gold standard of referendums'

Scotland's lord advocate tells the court a Section 30 order can be made to change Schedule 5 for reserved matters.

Ms Bain explains: "A Section 30 order was obtained in order to permit, as was at that stage seen, the gold standard of legality in relation to the first referendum."

The question is whether the issue is a reserved matter, explains the lord advocate.

Who is the lord advocate?

Getty Images

Dorothy Bain KC has been the Scottish government’s top law officer since 2021.

Born in Edinburgh, she studied law at the University of Aberdeen before becoming an advocate.

She worked in the prosecution service for nine years, including two as the Principal Advocate Depute, before returning to private practice in 2011.

She led the first prosecution of the serial killer Peter Tobin as well as cases against a major paedophile ring and a drug gang, and represented the family of one of the victims of the 2014 Glasgow bin lorry crash.

She replaced James Wolffe KC as the Lord Advocate following the 2021 election.

UK government's submissions 'should be treated with caution'

The lord advocate takes issue with several of the judicial review claims Sir James Eadie KC made in his earlier submissions.

Ms Bain says "one should treat with caution" the submission that Parliament has legislated against the backdrop of cases he has cited to this court, since the cases cited all post-date the Scotland Act.

She maintains there is "no reason" to accept Sir James's submission that Parliament intended to create a narrow or restricted jurisdiction.

On the contrary, it was the Scottish Parliament's intention to create a jurisdiction whereby law officers could refer questions to the Supreme Court on reserved matters “of the broadest amplitude”.

Had Parliament wanted to create a more "circumscribed" power, it could have done so, Ms Bain adds.

It wanted to create a "sweep-up provision" that ensured no issues about reserved matters could arise that were not in principle capable of being referred by a law officer to the Supreme Court.

'This is a matter of the utmost constitutional importance'

Lord Advocate Dorothy Bain KC begins her response to Sir James Eadie's submission about the bringing of this reference to the Supreme Court.

Scotland's lord advocate emphasises "that this reference has been brought responsibly and after careful consideration as to whether it was appropriate to do so" .

She points out this is the first reference since devolution.

The reference has been brought, not because the issue is trivial or one that has been raised on a whim - or willy nilly as one of the phrases that was used yesterday. It is a matter of the utmost constitutional importance."

Dorothy Bain KCScotland's lord advocate

Now for rebuttal arguments from Scotland's lord advocate

BBC

It is now the turn of Scotland's Lord Advocate, Dorothy Bain KC, who gets the opportunity to raise rebuttal points.

Ms Bain begins with a preliminary matter when she confirms she has provided notes on the role of the lord advocate and other law officers at Stage 3 of the passage of legislation in the Scottish Parliament.

We turn our attention to widgets...

Lord Reed uses the example of if the "dimension of widgets" falls within reserved matters, then the Scottish government would have to promote a bill, "the Widgets Scotland Bill" and wait to see if the matter was then referred under Section 33 to the Supreme Court.

Rather than the question of whether widgets fall within reserved matters being taken to the court at a much earlier stage, the judge adds.

The lord advocate can refer at that point, says Sir James Eadie KC.

"The real sting of the argument against me is to say that there will be some examples when the lord advocate, or the person who is in charge of the bill, is unable to make the statement, as a result of which the parliament will never get to debate widgets."

Lord Reed goes on to say that the Act gives rise to a lot of questions about reserved matters and Sir James is saying that's too broad an approach.

Eadie warns of 'some pretty unwelcome consequences'

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Lord Reed says that in a constitutional statute of this kind, the view might rationally be taken that you entrust the power exclusively with the law officers.

You could then be confident that references would only be made when they were within the competence of the parliament, with the judgement of the public interest by the relevant government, the judge says.

Sir James Eadie KC says the "difficulty is potentially you end up with some pretty unwelcome consequences from the lord advocate's perspective".

He says: "The only thing that we're really dealing with here are things or subject matter in areas that are to do with draft bills."

Sir James is rehashing one of his arguments for the case to be thrown out.

He says the Scotland Act is set up “very carefully” to deal with referring bills to court under one section (s33), which means the lord advocate can’t refer a draft bill to court under the “devolution issues” part (schedule 6).

The dividing line between the UK and Scottish parliaments

Lord Scales then argues that the "dividing line" between the authority of the UK parliament and the Scottish parliament is "the dividing line based around reserved matters".

There may be disputes about other things but that is the division about the authority between them, he points out.

Sir James questions whether, when these demarcation issues arise, by being allowed to go to the Supreme Court, it "sucks the court into either an advisory or a political process".

"Where is the principal line at what point can you do that?" he asks. "When, and under what controls?"

'Demarcation of authority' between governments questioned

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Lord Reed

Lord Reed says that when the Scotland Act was being drafted, it was inevitable questions would arise about whether subjects fell within reserved matters or not, and the demarcation of responsibilities between the two governments.

He imagines this must happen regularly on matters of agriculture, trade and industry, and that usually they either arrive at a solution by negotiation, or through an arbitrator, or via litigation.

Who are the Supreme Court justices?

Supreme Court

Lord Lloyd-Jones, Lord Reed and Lord Sales

We've been hearing from the Supreme Court justices as they ask questions of the first treasury counsel - but who are the UK's most senior judges?

Lord Lloyd-Jones

David Lloyd Jones, The Right Hon Lord Lloyd-Jones, was born and brought up in Pontypridd, Glamorgan, where his father was a schoolteacher.

A Welsh speaker, he was the first Justice of the Supreme Court to come from Wales. He is known for his expertise in international and criminal law.

Although he retired when he reached 70, he was recently reappointed to the court after Parliament increased the judicial retirement age to 75.

Lord Reed

Robert John Reed – or Baron Reed of Allermuir – is the most senior judge in the court. He was educated at George Watson’s College in Edinburgh, and worked in the Scottish Office in the 1980s and 1990s before entering the prosecution service.

Lord Sales

Philip Sales became a Supreme Court justice in January 2019. He went to school in Guildford in Surrey and then went to university at both Cambridge and Oxford.

As a barrister, he worked in the chambers that Tony Blair and Lord Irvine were associated with before becoming an appeal court judge.

He famously appeared as one of the three judges on the front of the Daily Mail, listed as “enemies of the people”, after the court’s ruling on the use of royal prerogative during court cases on Brexit.

Supreme Court

Lord Stephens and Lady Rose

Lord Stephens

The Right Hon Lord Stephens of Creevyloughgare, is one of Northern Ireland’s most senior legal figures.

Educated at Manchester University, he became a QC in 1996 and a High Court judge in Northern Ireland in 2007.

He recently ruled on a landmark privacy case against Bloomberg News that could make it harder for British media outlets to publish information about individuals subject to criminal investigations.

Lady Rose

Dame Vivien Rose, Lady Rose, became a Justice of the Supreme Court in 2021. A former civil service lawyer, she was the fourth woman to be appointed to the Supreme Court.

Educated at a London comprehensive school, she comes from a civil law background rather than criminal law.

She is known for her technical expertise in finance law and has experience in international humanitarian law.

Supreme confidence, or a huge gamble?

Philip Sim

BBC Scotland political correspondent, at the Supreme Court

It was striking how quickly Sir James Eadie zipped through his arguments on Holyrood’s competence to pass a referendum bill during this morning's session.

He spent the vast majority of his submission focused on why the court should throw out the case, and mere minutes on why a ruling should go his way.

This is in part because his argument is very straightforward - it boils down to “advisory? Aye, right”.

He said a referendum would be “self-evidently, squarely and directly about the union”.

It may also be a question of courtroom tactics - Sir James’s argument is that the law is plain, in black and white, and does not need to be elaborated on.

Meanwhile he leaves the lord advocate looking like she is weaving around trying to construct an intricate argument around the provisions of the Scotland Act.

It is a sign that the UK government side are confident that if the court rules at all, it would be in their favour - but flying through those points could prove to be a huge gamble if the judges are ultimately unconvinced by their straightforward argument.

Devolved competence discussed

The judges and counsel are going back and forth on issues of devolved competence.

Sir James Eadie draws attention to all of the examples handed up to the judges this morning, which he says fall within "the tail-piece", because they all relate specifically to reserved matters as conditioning the powers.

The UK government's senior counsel explains some technical details relating to the devolved competence.

A discussion ensues on Holyrood's subordinate legislation and its competence.

Lord Advocate Dorothy Bain KC will get to raise some rebuttal points of her own next.

The Supreme Court resumes...

Lord Reed begins with a "matter of housekeeping" as he gets the afternoon session of the Supreme Court under way.

The judge asks Sir James Eadie KC to provide a section of information that is missing and the UK government lawyer says he will do so.

What is the Supreme Court being asked to decide?

The lord advocate is asking the Supreme Court for a ruling on a short question:

Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be “Should Scotland be an independent country?” relate to reserved matters? In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England (para.1(b) of Schedule 5); and/or (ii) the Parliament of the United Kingdom (para.1(c) of Schedule 5)

Dorothy Bain KCLord Advocate

It may look short and to the point, but over these two days leading lawyers representing the Scottish and UK governments are poring over complex legal arguments to persuade the court that their intepretation of the question is right. In the end, it will be for the five Supreme Court justices to decide.