The UK's highest court has heard legal arguments on whether the Scottish government can hold a second independence referendum
President of the Supreme Court, Lord Reed, thanked both sides and told them it would take time to consider the oral and written evidence
Lord Advocate Dorothy Bain KC put the Scottish government's case, saying the issue was brought to court "responsibly" and not on a "whim"
She said she was seeking legal certainty on a matter which is of "exceptional public importance to the people of Scotland and the UK"
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"
The Scottish government has published a referendum bill, but it has not gone through the key legislative stages
He added that the issue was wrongly being "farmed out" to judges, risking "dragging the court into the political process"
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"
Philip Sim
BBC Scotland political correspondent, at the Supreme Court
It was striking how much more time the UK government side spent on trying to have the case thrown out, compared to a relatively brief section on whether the bill is legal.
Perhaps speaks to some confidence in their case, or maybe that the written arguments cover it well enough.
BBC Scotland political editor Glenn Campbell takes a look inside the Supreme Court and the key arguments likely to decide the fate of an indyref2.
Inside the indyref2 Supreme Court case
Image source, PA MediaIt's worth remembering that the SNP has also made a separate submission in the case as a political party, which supports the Scottish government’s arguments heard yesterday, while adding some of its own.
The party’s written argument focuses chiefly on the right of all peoples to self-determination under a UN charter – something it says is “one of the most fundamental rights of all”.
It claims that any reading or interpretation of the Scotland Act should take this into account.
The SNP will not be allowed to present its case in court, but the judges will consider it as part of their deliberations - and may use it to inform some questions to the lawyers present.
Glenn Campbell
BBC Scotland Political Editor
The presiding judge, Lord Reed, has made clear that this two-day hearing is only the ”tip of the iceberg” in the consideration of this case.
He told the court the judges have 8,000 pages of submissions to consider and that their ruling may take “some months”.
The most optimistic observers had hoped for a judgement before Christmas, with the former deputy president of the court Lord Hope anticipating a six to eight-week turnaround.
The phrase “some months” suggests a longer wait into the New Year.
The judges have two questions to answer.
Is it appropriate for them to give a ruling? And if so, has Holyrood got sufficient legal authority to hold a referendum without Westminster’s consent?
The answers to those legal questions could have a huge political impact - potentially determining whether or not there is an independence referendum on 19 October 2023.
And with that, the court adjourns for lunch. It will resume at 14:00.
The Scottish government wants to produce legislation in Scotland in order to advance their avowed political agenda of independence and thus ending the union, Sir James says.
"Yet in the same breath they assert their draft bill does not relate to the union".
Such an assertion requires "an interpretation for the words 'relate to' which is contrary to all of ordinary language, this court’s consistent case law, and common sense", he adds.
"That is neither a coherent nor attractive place for them to be, or to submit the court should find itself in."
Sir James Eadie KC says the Scotland Act of 1998 Act established a set of careful controls on the exercise of legislative powers.
The UK government's barrister says the SNP's set of arguments "fails at almost every analytical stage".
Sir James says the answer to whether such a referendum bill is within competence is "not too difficult to discern" and agrees with the lord advocate who "considers herself, correctly, unable to support a within competence statement".
The draft bill, if introduced and passed, would set up a referendum that is the most targeted form of seeking electoral views, argues Sir James.
He says the Supreme Court is well aware of all the Brexit issues that arose.
"The referendum... would be the very question of whether, in the view of those participating, the union should continue.
"Whether Scotland should become an independent country to take the referendum question proposed."
The lord advocate's case would have to be that to regulate a referendum on a reserved matter, it does not relate to that subject matter, he argues.
"That, we submit, is untenable as a submission."
"The union is the very and the sole object of the referendum that the bill purports to set up."
Philip Sim
BBC Scotland political correspondent
The UK government law officer refers to the Martin v Most precedent (see previous post) that to “relate to” a reserved matter, the bill must have “more than a loose or consequential connection”.
Sir James says this is the key test, not any idea of a “direct connection”.
Key argument klaxon: Sir James says it’s “entirely unsurprising” that the union is reserved.
It’s self-evident that “the effects of Scottish independence would be felt throughout the UK”.
He adds that the union is “the constitutional foundation of the modern British state”.
Sir James Eadie KC turns to the Continuity Case referring to the union between the kingdoms of Scotland and England.
He says the Supreme Court described it as "one of the fundamental elements of the constitution of the United Kingdom".
The UK government law officer points to the question of whether the provisions of the draft bill "relates to" that part of the United Kingdom's constitution.
The phrase "relates to" is key in this case.
Sir James says: "The reservation is of the union, not the dissolution of the union."
He says an Act of the Scottish Parliament to maintain the union would be just as outside the competence as one which dissolved the union.
Lady Rose highlights that Sir James has provided the justices with a number of provisions of the Scotland Act that generate questions about reserved matters, whether or not they are also questions about competence.
Sir James maintains that these examples provide “some real workable sense to the words” in a way that does not open up the “bull-point of incoherence against the lord advocate’s case which is entirely unexplained and inexplicable”.
He also points out two examples from the Government of Ireland Act of 1920 and the Northern Ireland Constitution Act of 1973, both now superseded.
He says those parliaments did not have powers to make laws in respect of reserved matters, and the Northern Ireland Assembly was required to obtain Secretary of State consent before dealing with a reserved matter.
“I think you’ve given us plenty of food for thought,” responds Lord Reed.
James Cook
Scotland Editor, BBC News, at the Supreme Court
Image source, PA Media and ReutersThe SNP's Joanna Cherry KC and Scottish Conservative leader Douglas Ross have been in the court
Call it what you like. Meticulous and rigorous. Complicated and arcane. Whatever word you use there is no doubt the Supreme Court is a serious place for serious issues.
For a second day, the five judges are not just picking apart the bones of the Scotland Act, they are squeezing out the marrow and putting it under the microscope.
Sir James Eadie KC, for the UK government, has faced persistent questioning from the bench about the exact technical provisions of the legislation which was passed in 1998 to set up the Scottish Parliament.
Lord Advocate Dorothy Bain KC was quizzed in detail yesterday too on the precise meaning of the law.
Watching from the public gallery are politicians and journalists who have a much more hands-on involvement with Holyrood. The Scottish Conservative leader Douglas Ross was here for a time this morning. Why? “I’m interested,” Mr Ross told me, straightforwardly, seconds before the hearing began. His fellow Tory MSP Donald Cameron has been in court for both days.
Yesterday the SNP’s Joanna Cherry KC was also here, keen to point out to me that the “chattering classes” had been wrong before in predicting Supreme Court outcomes and, in her view, they may be wrong this time in predicting defeat for the Scottish government.
Also sitting on a wooden pew, two rows back from the lawyers’ tables alongside a smattering of Scottish journalists, is First Minister Nicola Sturgeon’s chief spokesperson and special adviser, Stuart Nicolson.
And, directly beneath Ethel Mortlock’s portrait of the second Duke of Wellington, is the advocate acting for the SNP, Claire Madison-Mitchell KC, sitting with the public because the party was allowed to make a written but not an oral submission to the court.
The outcome of this hearing will determine the direction of some of these peoples lives — and possibly a lot more besides — not in an abstract legal sense but in a very direct and practical way.
The discussion about what whether something relates to a reserved matter or not continue.
There are lots of references to the tail-piece wording of the Scotland Act.
Sir James Eadie KC argues that this wording avoids all of the "substantive and procedural incoherences" he identified earlier.
Lord Reed has just brought a few chuckles to the room with his remark about the court being paper-free.
If you are unaware of his role, he is now the most senior judge in the UK Supreme Court, but with a very Scottish background.
Robert John Reed – or Baron Reed of Allermuir – is the Supreme Court President.
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.
He became a judge in 1998, sitting chiefly in the Court of Session.
He also oversaw cases at the European Court of Human Rights.
In 2012 he was sworn in as a Justice of the Supreme Court and, after a spell as deputy president of the court, he succeeded Baroness Hale as president in 2020.
He has overseen significant cases including the dispute over Boris Johnson’s prorogation of parliament, and one likely to be cited in the current case – AXA General Insurance vs Lord Advocate, which focused on the limits of the Scottish Parliament’s powers.
There is a brief delay in proceedings as Sir James Eadie KC attempts to give the justices paper copies of a section of the Scotland Act to refer to.
"It is coming to you electronically," Sir James says, "but I was told in no uncertain terms the court doesn’t receive paper anymore".
Lord Reed, the most senior judge, responds that "It’s true we are a paper-free court" but agrees to let the UK government's top barrister submit the papers on this occasion.
Lord Reed says one of the lessons of devolution case law is that because the categories listed are often expressed in general terms, there can be difficulty in deciding whether something falls within a reserved matter category.
The court president asks if there is any reason why, if the lord advocate wanted to know whether a particular topic was reserved or not, she shouldn't ask the court to decide on the issue.
Sir James says there are provisions in the Act that require you to know whether something does or does not relate to a reserved matter.
He says: "This is not a talking shop."
Sir James warns of "enormous ramifications, not least constitutionally" if a court was being dragged at the behest of the law officers into providing advice whenever something was interesting.
Image source, Getty ImagesThe focus switches to what is and what is not a reserved matter.
Sir James Eadie KC argues that there are provisions in the Scotland Act which would require the question about whether something is to be considered a matter reserved to the Scottish Parliament to be asked.
The UK government law officer says there are various examples of provisions in the Act where the boundaries of reserved matters, and what is and isn't a reserved matter, might give rise to issues of law requiring resolution by a law officer reference.
Sir James Eadie KC delves deeper into the "tailpiece wording" of Section 31 of the Scotland Act referring to devolution issues.
He says the lord advocate's interpretation of the words "do not make sense in the structure of this Act", even though the Scottish government's argument is that "competence issues" would prevent the introduction of legislation in referred matters.
He says Ms Bain's "inability to answer that question in any sensible or coherent form is "nigh-on fatal to the suggestion that the wording was intended to cover what she needs it to cover".
There is a "serious, substantial, procedural incoherence" in the lord advocate's case," he maintains.
Philip Sim
BBC Scotland political correspondent, at the Supreme Court
The Scotland Act says the lord advocate can ask the court to rule on “any other question arising by virtue of this act about reserved matters”.
Sir James says this appears very broad - but it shouldn’t necessarily include examination of a draft bill, as there are specific rules for bills.
I think Mr Eadie has actually summed up his whole argument in two words: Procedural incoherence.
He doesn’t want the court to rule because he thinks the Scottish government have strayed from normal, sensible procedure. We will get to the substantive question of competence eventually.
Lord Reed asks if the lord advocate could indeed have brought proceedings in the Court of Session seeking a declaratory order.
Sir James Eadie KC replies: "That is my submission."
He says the Court of Session will give "wonderful judgements as soon as it receives the issues".
However, the problem that arises in relation to this act is that it makes specific provision for draft bills' issues to come to the Supreme Court.
He refers to the lord president's ruling in the Keatings case (see earlier post) that if the lord advocate's argument is right, "that would be, as he put it, a recipe for chaos".
It would render the careful structures of the 1998 Act redundant.