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The first day of the Supreme Court hearing in the matter of a Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 commenced yesterday, with five justices of the Supreme Court sitting. CMS Senior Associate, Zainab Hodgson, heard arguments yesterday from within the Supreme Court.

On arrival at the Supreme Court, it was apparent from the crowds and press gathered outside that the case is of significant public importance, not just to the Scottish electorate but to the people of the United Kingdom.  The court room was full.  Just before the hearing commenced, the room was humming with activity as people were ushered in and took their seats, while lawyers, the media and general members of the public discussed the proceedings ahead.

Lord Reed opened the hearing with an explanation that the first question for the Court’s consideration was on the issue of jurisdiction, specifically whether it had jurisdiction to hear and determine the Reference.  Lord Reed explained that it is only if the Lord Advocate succeeds on the jurisdictional issue that the Supreme Court will proceed to consider the second question, being whether the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a reference would be “Should Scotland be an independent country?” relates 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.

Despite the political context in which the Reference arose, the Supreme Court made clear that the question for its consideration was a legal question.  Lord Reed explained that in the usual way, and noting that approximately 8,000 pages of material had been submitted to the Court, it is likely to take some months before judgment is given.  The hearing was described by Lord Reed to be only the “tip of the iceberg”.

The Lord Advocate’s submissions

The Lord Advocate delivered her submissions, which followed the structure of her written case, which is available here. Beginning with the background to the Reference, the Lord Advocate remarked that this is a power that has not previously been exercised by the Lord Advocate. The Lord Advocate then addressed the issue of jurisdiction.  In the Lord Advocate’s view, the Supreme Court has jurisdiction, and it should answer the question referred to it. The Lord Advocate emphasised that the Supreme Court’s answer was necessary and in the public interest. The Lord Advocate then spent some time on the issue of legislative competence, addressing head on the contentions raised, and cases relied on, in the Advocate General’s submissions.

During the Lord Advocate’s submissions, there were various questions from the bench on matters including: (i) the application of the qualification in paragraph 34, Schedule 6 of the Scotland Act, (ii) whether a member’s bill could be challenged under paragraph 34, Schedule 6; as well as (iii) consideration of why paragraph 1(f) relates only to questions of reserved matters, and whether there is a basis for describing such matters as particularly fundamental.

The Advocate General’s submissions (partly heard)

Sir James Eadie KC appeared on behalf of the Advocate General, and his written case can be found here.  On the issues of jurisdiction and the Court’s discretion, the Advocate General’s arguments proceeded from the starting point that there is clear and consistent authority, including from the Supreme Court, that it is not appropriate for the court to deal with abstract and premature questions concerning a draft of a Bill which has yet to be introduced into and passed by the Scottish Parliament.  In response to Lord Stephens’ comments that the question before the Court is not entirely abstract and whether the Court could proceed on the basis that the Bill is going to be passed, the Advocate General contended that the mere fact that the Scottish government has a majority and that it has proposed legislation does not necessarily mean that the legislation will ultimately be passed.

Additionally, the Advocate General argued that the legislation sets out a carefully regulated and specific timetable and set of requirements before a reference can be made in respect of a Bill, which, it was argued, the Lord Advocate seeks to bypass.

The Advocate General will complete his submissions today. CMS will be live-blogging the oral arguments.