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The second day of the Supreme Court hearing in the matter of a reference by the Lord Advocate of devolution issues under s.34 of Schedule 6 (the “Reference”) to the Scotland Act 1998 (the “Act”) took place on Wednesday. CMS Associates James Warshaw and Francesca Knight heard arguments from within the Supreme Court.

Day 2 of the hearing was just as busy as Day 1, with the media and the public keen to witness the close of this constitutionally significant hearing. Continuing on from the end of Day 1, the first part of Day 2 was taken up with the Advocate General’s submissions, made in opposition to the Reference by the Lord Advocate.

As it had been previously ordered that the issue of the court’s jurisdiction to hear the Reference should be rolled up with submissions on the substance of the Reference, the Advocate General (Sir James Eadie KC appearing) continued dealing with the jurisdiction issue before moving onto the substance.

Jurisdiction

The Advocate General submitted that the Reference was premature and as such the Court had no jurisdiction to hear it. He submitted further that the Court should decline to exercise its discretion in this regard.

Following on from submissions made the previous day concerning the use of s.33 of the Act (rather than s.34 of Schedule 6 in this case), the Advocate General spent some time looking at the legislative safeguards (such as in s.31 of the Act) which prevent the Scottish Parliament acting outside its competence.

The AG then proceeded to make a number of further points in relation to the jurisdiction issue. He addressed the issues that would arise if the Lord Advocate (or the other law officers) were to be allowed to make a Reference in respect of draft Bills, including the risk that references may be made in respect of policy ideas.

A running theme of the Advocate General’s submissions was that the Act was deliberately drafted in such a way as to ensure that only Bills which had been introduced to Parliament could be referred under Reference procedure.

Substance

The Advocate General then submitted that, even if the Court determined that it did have jurisdiction to hear the Reference, the answer to the Reference question should be ‘Yes’ i.e., that a referendum on Scottish independence relates to reserved matters and so is not within the legislative competence of the Scottish Parliament to legislate in this area. This was the case whether the referendum was legally binding/“self-executing” or advisory.

The Advocate General submitted that the draft bill clearly related to reserved matters, that being the Union of the Kingdoms of Scotland and England (under s.1(b) of Schedule 5 of the Act) and matters relating to the Parliament of the UK (under s.1(c) of Schedule 5). The fact that the referendum would not be ‘self-executing’ also did not mean it did not relate to the Union. The UK Parliament has deliberately reserved matters relating to the Union including questions about whether it should continue.

The Advocate General did not engage with SNP’s self-determination arguments as set out in their written pleadings.

Response

The Lord Advocate highlighted the constitutional importance of the Reference and criticised the Advocate General for belittling and undermining the importance of the issue. She said that the Reference “has been brought not because the issue is trivial or one that has been raised on a whim or willy-nilly. It is a matter of the utmost constitutional importance.” She submitted that the Reference had been brought responsibly, after detailed consideration, and at the request of the First Minister.

In response to the concerns regarding the potential opening of floodgates (ie the risk that policy ideas would be referred), the Lord Advocate highlighted that this is the first Reference in the history of devolution.

Judgment

Lord Reed commented that judgment would be delivered as soon as possible. However, as indicated on Day 1, the Court has more than 8,000 pages of written material to consider and it is likely to be some months before judgment is delivered.