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The UK government's independent barrister says: "If you can't even persuade your own law officer that you are within competence, the shutters come down."

James Eadie tells the court he will return in more detail to Section 31 tomorrow.

The court adjourns for the day and will resume at 10:30 tomorrow morning.

James Eadie sets out at great length the stages in the Scotland Act that need to be followed before a reference can be made to the Supreme Court.

He concludes by saying: "The key point to be derived from this suite of provisions with all their intricacy is that the United Kingdom parliament in the Scotland Act has required that the stages of the legislative process in the Scottish Parliament be completed."

Eadie says the legislation specifically sets the end of the Scottish Parliamentary passage as the trigger for a four-week window in which a reference can be made to the Supreme Court before it is given Royal Assent.

"The clear intention is therefore that the bill has gone through all its stages so it is in final form and simply awaiting assent," he says.

"Legislatively, it is the point at which the issue that will come before the Supreme Court is as close to not being abstract as possible."

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The lawyer putting the UK government’s case in the Supreme court is James Eadie KC - one of the best-known lawyers in the UK.

His role is First Treasury Counsel – also known as the “Treasury Devil” – which makes him the “go to” lawyer the UK government uses for major complex cases.

As such, he represented the UK government in its Brexit court battles – the Miller cases. He also represented the home secretary when the Supreme Court ruled on whether runaway schoolgirl Shamima Begum should be allowed back into the UK from Syria.

Eadie's own chambers describes him as "the best Supreme Court advocate with more experience before the court than anyone else".

The UK government's independent barrister argues there are a number of criteria that must be met before a reference is made, and "you can't just do it willy nilly".

James Eadie KC explains a variety of documents are likely to be produced before a bill is introduced to the Scottish Parliament.

Those documents normally accompany the bill at introduction, he says, including a financial memorandum and financial notes.

Eadie says these documents have long been important in case law in relation to competence.

The UK Parliament clearly recognised lots can happen to a bill once it has been introduced, he continues.

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Eadie cites case law which says it will rarely be appropriate to consider issues when they may depend in part on factual matters or future events.

He says the court should not rule on legislation until the precise terms are known.

Lord Stephens asks Eadie if this case is not different because there is a majority in the Scottish Parliament in favour of the independence referendum.

"Surely we can take it it is going to be passed," the justice says.

"My lord, I don't think you can take that as read," says Eadie, for the UK government.

"Why not?," asks Lord Stephens

"People might have different views, MPs have not yet voted, the mere fact there is a government majority may lead to that result and it may not," Eadie says.

Lord Stephens shrugs his shoulders. He says he can hardly imagine fundamental changes to the legislation.

James Eadie says the court is being asked to rule on a draft bill that hasn't been introduced to the Scottish Parliament.

The UK government's independent barrister says this is the basic starting point and is well established, against the backdrop of which the UK parliament then legislated in the Scotland Act.

He says the Scotland Act 1998 represents a narrow and carefully subscribed exception to this basic principle.

Eadie argues there are a number of imponderables caused by not having introduced the bill, for example it may be amended.

Sir James Eadie KC, the UK government's independent barrister on legal issues of national importance, is now beginning to address the justices at the Supreme Court.

He says it is not appropriate for courts to engage in "abstract" questions of law until the facts are known.

Eadie says the facts that are not known in this case are whether the legislation will be passed, what its precise terms will be and what the legislation actually applies to.

Dorothy Bain concludes by saying the wider motivations of the Scottish government are not legally relevant.

"The legal consequences of the bill are relatively nil," she says.

Political parties can and do campaign on reserved matters in Scottish elections, the lord advocate says.

Most obviously this includes independence - but is true of a number of matters, she adds.

She reiterates the Scottish Parliament can hold referendums to ascertain the views of the people of Scotland on particular issues.

And the Scottish Parliament can only be abolished after a referendum of the Scottish people.

The lord advocate says an advisory referendum would only affect the Union in an indirect way.

"The legal effect of the bill would be limited to the facilitating or holding of a referendum vote," she says.

The bill would not alter any legal rule constituting the union of the kingdoms of Scotland and England - either directly or indirectly, she says.

It would have no prescribed legal consequences, she says.

Bain says: "It is not, like some referendums, self-executing."

Beyond the immediate effect of ascertaining the will of the people of Scotland, the practical effects of an advisory referendum are speculative, she says.

Bain goes on to say the court ought not to engage in such speculation because it is not equipped to do so.

The lord advocate argues the Scottish government should not be precluded from ascertaining the views of the Scottish people on any subject matter reserved to Westminster.

She says other features of the Scotland Act do support argument in favour of an advisory referendum being within competence.

Ms Bain argues that, under devolution, the Scottish government may negotiate with the UK government about reserved matters.

She also says: "It is inherent in the entire scheme of devolution that both the parliament and the government can consider, discuss, debate and ultimately vote upon, proposed changes to the boundaries of legislative and executive competence."

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Lord Advocate Dorothy Bain says the stated purpose set out in the referendum bill would be to ascertain the views of the people of Scotland on independence.

"The purpose does not extend to securing independence," she says.

Bain says ascertaining views is the legally relevant purpose and would not "relate to" reserved powers on the Union.

The question that would be posed to the Scottish people would be "neutral" between a Yes and No vote, she says.

"The terms of the proposed question are therefore neutral as to whether Scotland should be independent," she adds.

Arguing for and against is a balancing actpublished at 15:17 British Summer Time 11 October 2022

15:17 BST 11 October 2022

Philip Sim
BBC Scotland political correspondent, at the Supreme Court

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The lord advocate has to walk a delicate tightrope in this case.

She needs to stress that there are good arguments on both sides of the case, because she wants judges to accept the quandary she is in and agree to answer the question before them.

She doesn’t want there to be any chance of them just throwing it out; she needs to be clear there is an issue to settle.

That’s why she rattled through a series of arguments AGAINST Holyrood’s right to legislate, accepting there was a “clear and cogent” case there.

But she then dedicated far more time and energy to the arguments IN FAVOUR of the Scottish government’s own position - because, obviously, she wants the court to come down on her side.

Although the referendum would have no legal effect on the union of the kingdoms of Scotland and England, the practical effect of the vote would be "politically significant", Dorothy Bain says.

This was a point made in the Gina Miller Supreme Court case on Brexit.

Even when a referendum was advisory, it would be difficult for parliament to ignore a decisive expression of public opinion, she says, quoting from a House of Lords report.

Questioned by Lord Stephens, the lord advocate says the referendum would have great political significance.

"But ultimately when it comes to determining the purpose of the provision and its legal effect, the political fallout is irrelevant for this court," she says.

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The lord advocate continues to argue that the referendum bill doesn’t “relate to” the union.

"Ultimately the decision of this court is a decision that has to be one on a purely legal basis and it is a legal question for this court."

She now turns to the argument that the Scottish Parliament does have competence to legislate for the referendum.

The connection between an advisory referendum and a reserved matter would be insufficiently close and direct, says Dorothy Bain.

She adds there is relatively little scope for Scottish legislation to relate to international relations.

It is important to identify the purpose of a statutory provision and it is reasonable to look at the legal cases she has cited.

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Lord Reed asks the lord advocate about the purpose of reserved powers.

She responds: "It might be relevant to think that the intention of the UK Parliament in creating reserved matters is not to be taken to prevent the Scottish Parliament asking the people of Scotland about matters of importance to the Scottish people even if reserved.

"It might be thought the intention of the constitutional arrangements, reflected in the Scotland Act, was to prevent the Scottish Parliament unilaterally changing laws in matters that are the responsibility of the UK as a whole."

She says an advisory referendum would not take Scotland out of the UK and therefore would have no practical consequential effect.

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Lord Advocate Dorothy Bain continues to cite case law in reference to whether provisions in legislation "relate to" reserved matters.

She speaks about the European Union (Continuity) Bill which was passed by the Scottish Parliament as a result of Brexit.

She says the Supreme Court placed considerable emphasis on the need for there to be some form of practical or legal effect on the law on the reserved matter.

The lord advocate says it is implicit in the reasoning of the Supreme Court when it dealt with the reference on the European Union (Continuity) Bill that it would be reasonable to suggest that holding an advisory referendum on an issue of international affairs would not relate to a reserved matter by the Scottish Parliament.

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Dorothy Bain turns to the Christian Institute case and the scrapping of the Scottish government's named person scheme.

The scheme was part of the Children and Young People Act of 2014, external, a fairly wide-ranging piece of legislation which also included provision for free school meals for younger pupils and extra help for looked-after children.

The Supreme Court and its judges ruled against it.

While they said the aims of the bill were "unquestionably legitimate and benign", they raised concerns about specific parts of the named person scheme.

The lord advocate says this case turned on the identification of the core purpose of the legislation and data-sharing issues were not to be treated as distinct from the core purpose.

She says a matter will only relate to a reserved matter in circumstances where its purpose is directly and closely related to a reserved matter.

You can read more about the scrapping of the named person scheme here.

At its heart, this part of the case hinges on a single sentence in the 1998 Scotland Act

What does this mean in practice? Well, that's what the judges are going to decide.

Another case referred to by the lord advocate is Martin vs Most.

This 2010 case could have a crucial bearing in that it set the precedent for the currently accepted definition of whether a bill “relates to” a reserved matter.

The case was one of the first at the Supreme Court to study the precise limits of devolved competence.

Brought to the court via two drivers who challenged their jail terms for road traffic offences, it centred on whether MSPs had exceeded their powers when drawing up criminal sentencing reforms.

The critical section of the judgement opined that legislation “relates to” a reserved matter if it has “more than a loose or consequential connection” to it.

This interpretation has been cited in a number of cases since – notably Imperial Tobacco v Lord Advocate - and thus endorsed by other judges.

And that is why the two sides in this case are arguing over whether a referendum bill would have a “loose or consequential” relationship with the union itself.