Today the UK Supreme Court will hear a second day of oral arguments in the Lord Advocate’s Reference in relation to the Scottish Independence Referendum Bill (the “Bill”).

Most of the day will be dedicated to the Advocate General’s submissions which will begin with his jurisdiction argument. As Lord Reed noted at the start of the court day yesterday, there are two questions for the Court to answer:

(1) “Does the Supreme Court have jurisdiction to determine the Lord Advocate’s reference? In any event, should the Court decline to determine the reference as a matter of its inherent discretion?” (the jurisdiction question) and

(2) 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; and/or (ii) the Parliament of the United Kingdom?” (the competence question)

This is a live Blog covering the oral arguments in real time. Please refresh the UKSC Blog homepage throughout the day in order to get the latest posts. Today’s live blog team comprises Tobias Seger, Finn O’Neill, Andrew Park, Jessica Eaton, Gideon Green and Jonathan Goodyear. Francesca Knight and James Warshaw will be in-person within Court 1 today and will provide a round-up of the key takeaways this evening. All bloggers are CMS Cameron McKenna Nabarro Olswang LLP Associates and Trainee Solicitors.

For a summary of the arguments, and the SNP’s written case, please refer to the excellent case preview drafted by CMS Senior Associate, Alan McDonald. Yesterday’s live Blog is available here, and a Day 1 round-up here.

1521: The Court has now adjourned. 

1520: Lord Reed thanks Counsel for their helpful submissions. He states that the Court will deliver judgment as soon as it can. Court has adjourned.

1519: The Lord Advocate submits that the point made by the Advocate General about the reason for the Lord Advocate being here is simply not correct. The Lord Advocate submits that given the importance of the matter, the First Minister asked the Lord Advocate to make the reference. The Lord Advocate submits that the constitutionally right thing to do is to bring the reference to the Court.

1516: The final issue that the Lord Advocate wishes to address is the point on the issue of law that has crystalised. The reason for the reference is that a legally sound piece of legislation is to be introduced, the First Minister requested that a reference be made under para 34 and the Lord Advocate decided to make the reference.

1509: The Lord Advocate refers to case law which had been lodged by the SNP. The Court intervenes, advising they have not looked at this and if there are issues, the Advocate General will be given an opportunity to reply. The Lord Advocate takes the court to various paragraphs within the case. The Lord Advocate relies on the case to draw a distinction between a litigation process and reference process.

1503: The Court intervenes and suggests that para 4 could be referred to this Court under para 34. The Lord Advocate agrees and suggests that the 2013 order could have been referred to this Court.

1500: The Lord Advocate refers the Court to the Explanatory Note which was referred to by the Advocate General.

1456: The Lord Advocate refers the court to para 1 of Sch 6 and takes the Court through the Schedule. The Lord Advocate submits that Sch 6 para (1)(f) is not limited by reference to any other sections in the Scotland Act 1998. The Lord Advocate suggests that to look narrowly at para 1(f) would be to restrict the amplitude which parliament did not intend.

1450: The Lord Advocate submits that there is no reason to accept the Advocate General’s submission that Parliament intended to narrow power, instead there is an international jurisdiction on law officers to refer matters of the broadest magnitude. The Court intervenes and asks why it is not swept up legal competency. The Lord Advocate submits that the fact there is a distinction does not mean that Sch 6 para 1(f) does not entitle any question under reserved matters.

1449: The Lord Advocate advises the Court that consideration was given before the Reference was brought. In addition, the Lord Advocate highlights the constitutional importance of the Reference. The Lord Advocate notes that this is the first reference in the history of devolution.

1448: The Lord Advocate gives her response to the Advocate General’s submissions.

1445: The Lord Advocate confirms that a number of notes have been provided in relation to private member bills. The Court confirms that a clip was provided to the Court which contained 3 documents: Sch 7, s 63 and the third in respect of private member bills. The Lord Advocate confirms that the Court has all documents provided.

1441: The Court confirms that the Advocate General’s position is that this should not be swept up with (f)(i) or (f)(ii), as the matter is dealt with in the wording of s 31. The Advocate General notes that these matters are not easy, but the consequence of this, if a Scottish Minister questions the competency, then they can avoid s 33 and simply apply to the Supreme Court.

1425: The court intervenes and wishes to deal with comments made in terms of s 23. The Advocate General accepts that references can be made under s 34 using s 23 (6). The Court suggests implication of argument under s 1(f)(ii) – any other question which arise really mean expression under this Act.

1421: The Advocate General submits that the court may be sucked into an advisory or constitutional question. The question is ‘where is the line?’ and suggests the answer may simply be with having discretion.

1416: Court intervenes – when the Scotland Act 1998 was drafted, a list of devolved matters was required to be typed up. The Court notes that disputes would arise between the Scottish Government and UK Government. It is noted that negotiation would likely resolve this. However, sometimes this would not happen. The Advocate General interjects and suggests this is when a s 30 order would be sought. The Court goes on to suggest two ways forward in this situation: 1) someone adjudicates or 2) to litigate. 

1415: The Advocate General has advised that (f)(i) – exercise power of legislation ministers – and (f)(ii) applies as a separate category, by things done in Scottish Parliament.

1408: The court intervenes, suggesting orders of counsel within s 118 would fall within devolved competence. The Advocate General submits that all examples given before are within (f)(i).

1403: The Advocate General continues his submissions. The Advocate General in order to assist the Court with his submissions has subdivided para 1 (f) into two additional numbers. The Advocate advises that he will refer to (f)(i) as “any other question about whether a function is exercisable within devolved competence or in or as regards Scotland” and (f)(ii) “any other question arising by virtue of this Act about reserved matters. The Advocate General wishes to draw the Court’s attention to all the examples in the clip – handed up are examples within the tailpiece, not (f)(i). The Advocate General refers to s 54, which is not in the bundle but deals with matters out-with devolved competency.

1400: Court has resumed. Lord Reed wishes to raise a matter of housekeeping. Lord Reed takes the Advocate General to explanatory notes at para 1(f) and notes a missing note. The Advocate General advises that a copy will be provided.

1248: The Court has adjourned and will resume at 2pm.

1246: The Lord Advocate asks the Court if she can reflect on matters over the break for lunch.

1244The Advocate General notes that, having focused on the union, he will not deal with the separate matters of the UK Parliament, which deals with similar points. He does not propose to engage on the SNP’s reliance on self-determination under international law as he notes that it fails at every analytical stage and is dealt with in his written pleadings.

1241: The Advocate General submits that the United Kingdom Parliament has reserved matters relating to the entire Union, including questions about whether the Union should continue.

1235The Advocate General makes three points in respect of the submission of principles. The subject matter of the draft Bill relates to the Union because all parts of the UK would be affected by the issue, not just Scotland. It would be an important issue for both Scotland and the United Kingdom. The draft Bill, if passed, would set up a referendum that would pose the very question of whether the Union should continue and whether Scotland should become independent. The fact that the referendum is not self-executing does not mean the draft Bill does not relate to the Union. The draft Bill would provide the legal basis for the referendum. The Advocate General suggests that the purpose of the draft Bill is not an opinion poll, but to create a referendum.

1222: The Advocate General continues to address statutory interpretation, including in terms of the legal and practical effect of the legislation and Imperial Tabacco.

1218The Advocate General submits that he has considered how to identify the purpose of the Scotland Act 1998 and how to identify that through statutory interpretation. He notes that a range of documents, including political manifestos, can have a bearing on that process.

1213: The Advocate General concludes his arguments on jurisdiction and discretion with no further questions from the Court.

1210: The Advocate General submits that the Northern Ireland Act 1998 and its corresponding provision to para 1(f) has been considered. He notes too that an equivalent provision could not be found in the Welsh legislation as it is structured differently.  

1203: Lady Rose and Lord Reed queried the definition of devolved competence and how that impacted the Advocate General’s discussion of case law, and the extent to which it affected the scope of para 1(f) of the Scotland Act 1998 with Sch 6 in mind.

1157: Lord Stephens asks which of those examples fall into the second part of para 1(f). The Advocate General responds that, in his submission, all of them do.

1155: The Advocate General submits that the reference in the tailpiece wording is a reference to those provisions set out above. This has, in his submission, the virtue of avoiding all of the substantive and procedural incoherence identified earlier, and avoids cutting across the careful scheme as to when and how bills need to have reached fruition before a reference can be made under the Scotland Act 1998 in s 3.

1151: The Advocate General is providing examples of sections of the Scotland Act 1998 that he has been referring to. Looking at s 23, the power of the Scottish Parliament to require a person to attend as a witness for the purpose to give evidence, s 23(6) states that where all the functions of a body relate to reserved matters, the UK Parliament cannot require such a person to attend. The Advocate General also turns to s 35(1)(b), where there is the power to intervene in the legislative process if the Minister or Secretary of State in question believes it makes modifications in relation to reserved matters. 

1145: The Advocate General argues that this is not an uncontrolled regime where the Scottish Government can come to ask for advice, unless the Court declines to give an opinion. In his submission, the Scotland Act 1998 is specifically designed to ensure that the matters come to the Court with the Bill in its finalised form, with the democratic matters completed. Alternatively, the Scotland Act 1998 provides for a reference, in relation to devolution, once the legislation has already been enacted.

1140: Lord Reed observes that the categories listed in Sch 5 are often expressed in very general terms which can result in difficult decisions in terms of whether an activity is caught by it or not. This could very well include issues such as those raised in Imperial Tabacco. He therefore asks whether there is a reason why, if the Lord Advocate wanted to know whether a particular topic was reserved or not, she should not ask the Court to decide that question. The Advocate General’s response is that there are examples where that could be done. Lord Reed notes that the Lord Advocate might want to know the answer to such a question in order to advise on a legislative proposal. The Advocate General submits that this is more difficult, referring back to his previous submissions. 

1134: The Advocate General turns to the explanatory notes dealing with sub para 1(f) of Sch 6. There are provisions in the Scotland Act 1998 that would require the function of para 1(f) to be asked. In the Advocate General’s submission, there are various examples of provision in the Scotland Act 1998 where the boundaries of reserved matters may require a Law Officer reference.

1129: The Advocate General continues that, in the Lord Advocate’s case, there would be two stages for a bill. One for devolution issues and a second, later one, dealing with other matters, such as human rights. The Advocate General submits that this is a serious procedural incoherence in the Lord Advocate’s case.

1127: The Advocate General argues that the UK Parliament did not intend it to be a catch all provision, picking up on doubts about a s 31(1) statement. If that had been the intention, why does the tailpiece wording not refer to competence?

1124: The Advocate General submits that the Lord Advocate’s interpretation of those tailpiece words does not make sense in the structure of the Scotland Act 1998. He argues that the Lord Advocate’s case gives rise to a question arising about reserved matters and they say that it is important that this should be able to be referred, otherwise competence issues would arise. The Advocate General argues that the difficulty about this case is that this tailpiece only refers to reserved matters. That does not square with the purpose the Lord Advocate wants to give to that provision. There could be the same doubt as a result of any of the grounds in s 29(2).

1121: Lord Reed asks whether the Advocate General is arguing that the Lord Advocate could have raised proceedings in the Court of Session asking for an order for declarator? Why is there a problem with that procedure? The Advocate General states there is no problem with the procedure, it makes specific provision for draft bill issues to come to this Court directly.

1116: The Advocate General asks who determines legislative competence before Royal Assent? If it is a devolution issue under para 1(f), then the Law Officer can issue proceedings for determination under para 4 of Sch 6. There is no requirement for these proceedings to be instigated in the Court. It renders it unlikely that the UK Parliament intended to undo all the careful controls in the Scotland Act 1998 by “general tailpiece words in 1(f)”.

1114: Turning to Sch 6 para 1(f), the Advocate General submits that despite the apparent breadth of the words in that paragraph they need to be interpreted in the scheme of the legislation.

1110: Moving to his fourth point, the Advocate General argues there is nothing with legal effect that has occurred, but cannot be brought before the Court. The Advocate General states that it is not as though the Lord Advocate cannot answer the question in ss 33(1) of the Scotland Act 1998. In his view she can answer it and has done so, but the Scottish Government does not like the answer that is given.

1104: The Bench is asking a number of questions about the above matters. Lady Rose asks, where a reference is made under para 1(a) the Scotland Act 1998, is it correct that the Act in question continues to be in force pending this Court’s decision? The Advocate General confirms this. The Advocate General argues that if the Court is only looking at the matter prior to Royal Assent, then the Court removes itself from any political debate.

1103: The Advocate General is going to make five points. The first one is the point set out above. The second one is that the UK Parliament was concerned to ensure that the people in charge of the Bill pin their colours to the mast on competence. This should not be farmed out to the Court. Third, the Advocate General asks where is the limit of the Lord Advocate’s case? What if the Scottish Government have an early draft of a bill? What if there is no bill but only a policy idea? The Advocate General asks at what stage is the Lord Advocate allowed to make a reference?

1056: The Advocate General’s submission is that the existence of ss 31(1) does not enable the person in charge of the Bill to bypass the careful structural pre-conditions and temporal pre-conditions to make a reference in relation to draft bills through Sch 6 para 1(f).

1054: Lord Sales asks whether this does not underline the fact that the Court should give an interpretation if there is doubt about competence. The Advocate General says that his position is “so be it”, but Parliament was deliberate in the structure of the Scotland Act 1998 when it was drafted.

1051: There are further questions from Lord Reed and Lady Rose expanding on the above point. Lady Rose points to the oddity that arises when the Bill is introduced by the Minister. In that case, the Lord Advocate needs to make this statement, but if the Bill is introduced by a Member of the Scottish Parliament the same issue would not arise. The Advocate General agrees that this is an oddity of the Scotland Act 1998. The problem arises whenever the person in charge of the Bill has doubts about competence.

1046: Lord Sales notes that the thrust of the case against the Advocate General is that there is an arguable case that such a measure would be within competence but because of the uncertainty about the Law Officer and the Minister acting on their behalf, they cannot make the necessary positive statement. It may be the case that if the matter were determined by the Court it would show that the matter was competent. The effect of the Advocate General’s position is that because the Law Officer cannot positively make a statement, that arguable case is never tested. The Advocate General responds that this is the structure of the Scotland Act 1998 and in his submission the Law Officer must make a statement that it is within legislative competence.

1036: The Advocate General argues that there is a distinction between ss 31(1) and 31(2), as the UKSC implied, in the language in those two provisions. If the Presiding Officer is of the view that the bill is not within competence, it would not prevent the Bill being introduced, but it would be an important signal to consider in terms of whether a reference to the UKSC should be made. A person in charge of the Bill is required, on or before it being introduced, to state that in their view the Bill would be in the legislative competence of the Parliament. If they cannot do that, then the Bill could not be introduced.

1033: This is the continued hearing regarding the Lord Advocate’s Reference to the United Kingdom Supreme Court regarding the Scottish Independence Referendum Bill. The Advocate General continues his submissions. He is moving on to the question whether s 31 of the Scotland Act 1998 fits into the legislative structure as described yesterday.