Lord Advocate Dorothy Bain has referred to a range of case law on the issue before the court.

Imperial Tobacco vs Lord Advocate was another case centred around Holyrood’s competence, with Imperial Tobacco arguing that MSPs had strayed beyond their remit when regulating the display and sale of tobacco products.

The judgement specifically endorsed the idea that a bill “relates to” a reserved matter if it has a “loose or consequential connection” with it.

And it noted that judges should pay attention to “what the provisions are really about” – the substance and purpose of the legislation, rather than the bare legal framework of it.

The UK government’s written case argues that Scottish minsters would clearly use a referendum bill as “the means to achieve the aim of independence itself”.

The lord advocate refers to the Imperial Tobacco case, when the company objected to the Scottish Parliament banning tobacco advertising, as she continues.

Dorothy Bain looks at what makes a reserved matter and what does not.

Lord Reed says Imperial Tobacco v Lord Advocate was an early case in the years following devolution and they were trying to explain the position under the Scotland Act.

The lord advocate says, in the context of the Imperial Tobacco case, the main focus of the bill was the display of tobacco in shops and efforts to reduce smoking, not incidental consequences.

Proceedings are back under way after lunch.

Lord Advocate Dorothy Bain gets to her feet to return to presenting her case for the Scottish government to the judges.

Half-time round-uppublished at 13:47 British Summer Time 11 October 2022

13:47 BST 11 October 2022

Philip Sim
BBC Scotland political correspondent, at the Supreme Court

Half-time on day one at the Supreme Court and the lord advocate is starting to get into her stride.

We’ve moved from the issue of whether the court should rule at all to the substantive issue - whether a referendum bill is within Holyrood’s competence.

There has been a whirlwind of case law concerning everything from cigarette displays in Scotland to asbestos compensation claims in Wales.

But it all builds to her core point - that the core purpose of a referendum bill is only to seek the views of the people, and that this might not in itself tip over into a reserved area.

The judges have taken a keen interest in the precise drafting of the Scotland Act, and what it means for how laws are made at Holyrood.

So one useful effect of this case may be to iron out other uncertainties about little-used procedures, setting a precedent for future planning.

Indeed the idea that a backbench MSP could bring forward a referendum bill, or that ministers could legally do so without the lord advocate’s blessing, could prove significant in terms of future strategy.

Political row is now a legal disputepublished at 13:28 British Summer Time 11 October 2022

13:28 BST 11 October 2022

James Cook
Scotland Editor, BBC News, at the Supreme Court

The vote on independence in 2014 was held after Downing Street recognised a pro-referendum majority in the Scottish Parliament and granted formal consent for the poll.

Scotland voted in favour of remaining in the three centuries old union by 55% to 45% but since then the UK has left the European Union against the wishes of most Scottish voters, a “material change” which the Scottish government says means the issue of independence should be tested at the ballot box again.

The current UK government strongly disagrees, responding to a Holyrood election result last year, which saw voters returning another pro-referendum majority this time comprised of SNP and Green MSPs, by saying, simply, no.

The political row which has followed is now a legal dispute.

If the Supreme Court also says no, Nicola Sturgeon intends to take her case for leaving the UK directly to the people of Scotland at the next general election although she has not set out exactly how that would work in practice.

Her opponents say the de facto referendum plan is illegitimate and would not provide a mandate for Scotland to negotiate its exit from the UK.

But with the polls split more or less down the middle on the question of independence, the issue looks set to dominate Scottish politics for years to come, whatever the judges decide.

The Supreme Court is now taking a break for lunch.

So far, it has been hearing from lord advocate Dorothy Bain, Scotland's principal law officer.

She has mainly been presenting the case for the Supreme Court justices to actually allow her reference to be heard.

The lord advocate stated it was in the "public interest" to settle the question.

But the UK government wants the court to refuse to rule on the case.

It argues that the question is beyond the court's jurisdiction.

Ms Bain spent a great deal of time going through each of the arguments put forward by the UK government's law officer, the advocate general for Scotland.

The hearing will restart at 2pm.

Image source, Getty Images

There has been a lot of legal argument during the opening session of the Supreme Court hearing.

If you are just joining us, here's a quick reminder of what the Scottish government's argument is.

The Scottish government’s case rests on the idea that a vote would only seek the views of Scots about the union, rather than directly breaking it up.

Lord Advocate Dorothy Bain wrote that Scottish ministers might have the “subjective intention” of independence, but that the bill itself was objectively neutral.

She said that even if a majority backed independence it could only happen if Westminster passed a law to bring it about.

In other words, it should be possible for Holyrood to consult the public without Westminster support.

Here's the Lord Advocate's written case., external

The lord advocate answers concerns put forward by the UK government law officer that the case could be brought back to the Supreme Court after the legislation was passed.

Dorothy Bain says there is no prospect of it coming back to the court unless the Act has undergone "a material amendment" during its passage through the Scottish Parliament.

The burden on the finite resources of this court mean that is simply not realistic, she says.

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

Image source, Supreme Court

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.

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.

Image source, Supreme Court

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.

Lord Stephens returns to Section 31 of the Scotland Act 1998 - one of the pre-legislative safeguards.

Dorothy Bain reminds the judge of the terminology of the ACT.

She says it requires that the person responsible, the government minister, should state that the provisions of the bill would be within the legislative competence of the parliament.

"That is what is required in terms of the statutory certificate before the introduction of the bill," the lord advocate says.

The minister has a duty to make the statement on a rational basis, she says, and that is informed by the law officer's advice.

At the heart of the case is proposed legislation in the Scottish Parliament called the Scottish Independence Referendum Bill.

This would allow for a second vote on Scottish independence to take place next year.

However, there are questions over the legality of an independence referendum which does not have a section 30 order from Westminster - the legal instrument which can grant Holyrood the power to organise a vote.

The five judges have been asked to decide whether the Bill relates to "reserved matters" - meaning it is beyond Holyrood's competence.

Dorothy Bain says a bill can be introduced by an individual MSP which does not require taking legal advice.

In that instance, the MSP must only say if the bill, in their view, is within legislative competence.

The lord advocate explains the bill can then be introduced with a positive or negative statement on competence by Holyrood's presiding officer.

She says the lord advocate, the advocate general for Scotland and the attorney general can refer a bill that is considered to be outside competence to the Supreme Court.

Image source, supreme court

Lord Reed, the president of the Supreme Court, returns to the argument put forward in a written case by the UK government's law officer.

It argues the relationship between the Scotland Act and the requirement to have proposed bills cleared by a law officer is not sufficiently direct.

It is mediated through the internal practices of the Scottish government, reflected in the ministerial code, Lord Reed says.

Lord Reed says the person in charge of the bill would be a Scottish government minister and that person would require legal advice from somebody.

The law officers are the authoritative source, he contends.

Ms Bain says, despite the ministerial code, the whole issue of legislative competence arises from the Scotland Act and the minister is not bound by the law officer's advice.

Lady Rose asks what prevents the minister taking a different view to the law officers.

"That would be a significant departure from the way in which government operates currently," replies Dorothy Bain.

The lord advocate says: "As a matter of law, the minister is not bound by the lord advocate's advice."

However, it would be unusual for the minister not to accept the law officer's advice, she says.

Image source, PA Media

The lord advocate cites various references to back up her position that she is allowed to refer this matter to the Supreme Court.

The advocate general for Scotland, the UK government's law officer, has put forward written arguments saying it does not allow for bills or draft bills.

In response, Dorothy Bain says she is not seeking to refer a bill at all. She says the reference is on a question of proposed legislation that has not been introduced to the Scottish Parliament.

The circumstances that led to the reference being made are "highly exceptional", she adds.

Should the judges rule at all?published at 11:57 British Summer Time 11 October 2022

11:57 BST 11 October 2022

Philip Sim
BBC Scotland political correspondent, at the Supreme Court

A big part of this case will focus on whether judges should rule at all.

The UK government side are pressing hard for the case to be thrown out without any judgement, arguing that it’s premature to rule before a bill has been passed at Holyrood.

The Lord Advocate insists that she needs the matter to be settled before she would green-light a government bill.

It may seem technical but there are wider political points here, and hints about what might happen following the case.

The UK government side hope to put Ms Bain in a Catch-22, where she cannot introduce the bill without legal clarity - but cannot get legal clarity until the bill is passed.

And the lord advocate has pointed out that there are other ways a bill could move through Holyrood - namely by an individual MSP tabling it as a members bill.

However, she noted that a members bill could still be challenged by UK law officers and end up back in this very court.

That’s why she’s keen for the judges to settle the question once and for all, rather than kicking it back into the long grass.

An early attempt to get a ruling on Holyrood’s ability to legislate for a vote was made by a citizen campaigner, Martin Keatings, in 2021.

Many of the same arguments from the current case were rehearsed in the Court of Session, but judges ultimately refused to make a ruling.

As well as ruling that Mr Keatings did not have the standing to bring the case, Lady Carmichael said it was hypothetical and premature to consider legislation before “it is in its final form and has been passed by parliament”, noting that a bill could fall or be amended. Her decision was later endorsed by three senior judges, including the lord president.

This is key to the UK government’s argument that judges should not make a ruling at all.

They say it would be “abstract and premature” for the court to rule on a bill which “has yet to be introduced into and yet to be passed by the Scottish Parliament”.

The lord advocate refers to an early court case brought by citizen campaigner Martin Keatings in 2021. Judges refused to make a ruling in the case.

Dorothy Bain says the judgement does not answer the question in this case.

Whereas Keatings' case was deemed "academic", she says her reference to the court considers an issue of "considerable practical importance".

James Cook
Scotland Editor, BBC News, at the Supreme Court

Image source, PA Media

Hand on hilt and resplendent in red, the second Duke of Wellington looks down from the Portland stone wall of the Supreme Court’s splendid home, the former Middlesex Guildhall in the heart of Westminster.

The gaze of the eldest son of the hero of Waterloo falls on carved wooden pews which would look at home in an especially grand church, where journalists, lawyers and other interested parties are straining to hear the soft but sure tones of Dorothy Bain KC.

In case anyone was in any doubt, the lord advocate began by setting out the magnitude of the case, the result of which could — in theory at least — set in train the end of the 315-year old union between Scotland and England. Many legal experts and commentators regard that as highly unlikely. Others point out that the “chattering classes” have been wrong before.

The courtroom is busy but not packed. The watchers sit in respectful silence, of course, but the atmosphere is much more relaxed than during a criminal trial at, say, the Old Bailey or the High Court in Edinburgh.

Perhaps that is because of the absence of the sense of drama often present in those forums — there is not a feeling of direct, immediate jeopardy for anyone in this room.Still, that may be misleading. Many people, not least the UK prime minister and Scottish first minister, are deeply invested in the outcome of this case and what happens here does have the potential to touch not just a handful of lives but to affect millions of people, one way or the other.

The Lord Advocate repeats her statement that there is a genuine issue of law that is unresolved.

She says she could not clear the referendum bill for introduction to the Scottish Parliament without a decision from the highest court.

"The issue is one of exceptional public importance to the people of Scotland and the United Kingdom," she says.

It is also directly relevant to the central manifesto pledge of the Scottish government, Bain says.