During the course of today and tomorrow, the UK Supreme Court will hear oral arguments in the Lord Advocate’s Reference in relation to the Scottish Independence Referendum Bill (the “Bill”). The Court has been asked to determine whether it would be within the Scottish Parliament’s power to legislate for a second referendum on Scottish independence. 

The specific question posed by the Lord Advocate is “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 Lord Advocate will make arguments on behalf of the Scottish Government. The Advocate General will make arguments on behalf of the UK Government. Written arguments filed on behalf of the SNP will also be considered but the SNP will not be represented in Court.

Five Justices of the Court will hear the arguments and determine the question; Lord Reed, Lord Lloyd-Jones, Lord Sales, Lord Stephens, Lady Rose. Lord Reed is the President of the UK Supreme Court.

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 Jessica Eaton, Charlotte Edgar, Sophie Campbell, Natalie Haefner, Amelia Mah, and Brooke Nisbet. Zainab Hodgson, Senior Associate at CMS, 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. 

Court will begin at 10:30am. 

1600: Adjourned for the day and will return at 1030 tomorrow.

1557: The Advocate General asks to make twin submissions to conclude for the day. First is that Parliament has departed from the norm. Second is that the Lord Advocate’s interpretation of Sch 6 para 1(f) by-passes/undermines this. The Lord Advocate says this is not a Bill reference so s 33 is irrelevant. That is no answer to objection that submitting a draft Bill at this stage circumvents the legislative scheme. The Advocate General advises that they will return to this point tomorrow.

1555: The Advocate General continues by saying that lots can happen during the legislative stages of a Bill and this careful structure has been recognised by Lord Carloway in Keatings.

1551: The Advocate General makes a second point in relation to the Scotland Act 1998; that a variety of documents that are likely to be created before the introduction of a Bill into the Scottish Parliament usually accompany the Bill at the introduction, for example the explanatory notes. Those sorts of documents have been held to be important when considering when a Bill is within competence and in this case they will be lost. The Court intervenes and asks whether these documents may include political party manifestos.  The Advocate General responds that he doesn’t think that they do include this. 

1547: The Advocate General continues by stating that as part of that structure, only specified office holders can refer (see s 33(1)).  Specified office holders are the Lord Advocate, Advocate General or the Attorney General. S 32(2) which is part of the provisions governing references precludes the presiding officer from submitting a Bill for assent if a reference is made within the 4-week period. Therefore, it must be construed that the UK Parliament and the Scotland Act 1998 has required the stages of the legislative process in Scottish Parliament be completed first.

1543: The Advocate General continues to discuss the Scotland Act 1998. S 36 by submitting that the Act provides mandatory provision of parliamentary standing orders and provides the various stages of a bill. All of the stages have to be passed before the trigger point for a reference. Therefore, the Advocate General submits there is an intricate scheme and prescribed legislative stages, including the re-consideration of a Bill if the Supreme Court determines it is not within competence. This presupposes the Bill has gone through the first stages.

1539:  The Advocate General turns to the Scotland Act 1998 now. He provides that there are two key initial points. Firstly, the legislation sets out a carefully regulated and specific timetable and set of requirements before a reference can be made of a bill. The position is that the Bill must have been passed or approved in accordance with any standing orders that are made under s 36(1) and (5). The basic position is therefore that there cannot be any reference by the law officers until the Bill has passed. Then there is a set period of 4 weeks within which the reference has to be made.

1536: The Advocate General refers to the Keatings case which, he states, is closer to the facts of our situation. It was a draft Bill. The Court rejected the advisory referendum. The Advocate General submits that this is the key starting point.

1534: The Court intervenes and says that if this Court rules on a matter, then it will be deciding on a Bill rather than the abstract. The Advocate General responds by stating that however in this case, it is in context of a draft Bill and yet to go through the relevant processes and that usually, the final stage of passing then involves the Court. The Court comments that the Supreme Court is exercising an original jurisdiction which can only be initiated by law officers and that this is different to, for example, judicial review proceedings in the Counsel General case.

1532: The Advocate General states the theme is that individuals must decide whether legislation is within competence or not. In the Counsel General case, the Court held that the equivalent law officers in Wales were likely to have to form a view regarding competence and reference.

1530: The Advocate General continues to discuss authorities in written case then moves onto the Counsel General of Wales v The Secretary of State for Business, Energy and Industrial Strategy case [2021] EHWC 950.

1528: The Court intervenes and submits that there is a majority in the Scottish Parliament and asks if the Court can take it that the Bill is going to be passed. The Lord Advocate disagrees and provides that there has not been a vote yet and it may not be passed in the same terms as it has been introduced. The Court intervenes and says that it cannot imagine amends to the Bill, it is a short piece of legislation. The Advocate General responds by saying that there may be operative parts of the Bill changed my amends and there also may not.

1527: The Advocate General continues discussing authorities which have been made in their written case, particularly the case of R (Yalland) v Secretary of State for Exiting the European Union [2017] EWHC 630.

1524: The Advocate General states they are going to deal with jurisdiction and discretion together.  There is clear and consistent authority that it is not appropriate for the Court generally to engage with abstract questions of law until the facts are known. The facts include whether possible legislation will be passed, what its precise terms will be and the factual matrix to which the legislation applies.

1524: The Lord Advocate has concluded submissions.

1522: Court intervenes to ask what the Lord Advocate’s role is at stage 3.  The Lord Advocate states he has this in writing which can be provided to the Court (along with any further relevant background info). The Lord Advocate says that Stage 3 is the point at which Bill has been introduced and been through process in Parlaiment such as debate and committee & amendment stage. Stage 3 is the final stage where the Lord Advocate considers whether case should be referred to the Scottish Court in relation to competence issue and the Lord Advocate offers to provide flowchart on this. Lady Rose asks if this is different from the s 33 process and the Lord Advocate confirms this is part of same process.

1521: Lady Rose asked a question on whether a member’s bill could be challenged under para 34 of Sch 6. Where a member chose to introduce legislation and in their view was within the competence. The Lord Advocate submitted that in practice the Lord Advocate doesn’t refer a Bill till after stage 3 so this wouldn’t happen in practice. The Lord Advocate did not rule out that it couldn’t be challenged though.

1520: Lord Reed intervenes and asks a question regarding the devolution of Ireland. The Lord Advocate is still to look into this as she hadn’t looked before Northern Ireland Act 1998.

1518: The Lord Advocate continues by saying that 2 questions need answered and that they might need further time for investigations on this. She continues by saying that information is available to indicate why para 1(f) to a Sch to the Act relates to reserved matters only. This was looked at and came across internal communications between UK and Scottish Office but no assistance was provided from Parliament. Reserved matters are a new thing and there is no jurisprudence that was available. Therefore, it may have been thought there was need for particular provisions to ensure these questions could be brought before consideration of the Court.

1515: The Lord Advocate makes concluding observations. firstly, being that since 2007, the SNP has won elections in Scotland. Majority of MPs from Scottish constituencies are also SNP. The Lord Advocate provides that this issue, despite political importance, is a matter of law for the Scottish Court to decide. It is in the public’s interest that this is allowed. This is of particular importance to Scottish Ministers who wish to introduce a Bill. The Lord Advocate seeks the Court’s ruling on this important question.

1511: The Lord Advocate continues by saying that Sch 5(1)(c) provides that the parliament of the UK is a reserved matter. If Scotland became independent, this would involve a reduction of the UK Parliament’s powers. It would become the Parliament of England, Wales and Northern Ireland.

1510: The Lord Advocate discusses reservation of the Union.

1508: The Lord Advocate summarises that the Scottish Ministers are not precluded from consulting with Scottish people on the issue of independence. The legally relevant purpose of the Bill is to ascertain the wishes of people of Scotland in relation to their own future. The wider issue of the aspirations of political parties is not legally relevant. Anything beyond ascertaining the views of Scottish people is indirect and should not be taken into account. That is entirely speculative. 

1504: The Lord Advocate continues that the scheme of devolution itself allows for participation by the people, for example the Peoples Assembly of Scotland and Citizens Assembly on Climate Change. There is also a regulated process for holding referendums under the 2020 Act. Given these features, there are reasons for concluding the Scottish Parliament is not constrained when ascertaining the will of the Scottish people and can do so even when the subject matter relates to a reserved matter.

1503: The Lord Advocate continues that it is therefore inherent that both Parliament and Government can consider, discuss, debate and vote upon proposed changes to legislative and executive competence. To do this in an informed way it must be able to canvas views of people of Scotland on such issues. Political parties can and do campaign on policies relating to reserved matters to test views of the electorate.

1500: The Lord Advocate continues that other features of the Scotland Act 1998 do support advisory referendums being within competence. It is a necessary implication of devolution that the Scottish Government may negotiate with the UK Government regarding reserved matters. S 30 of the Scotland Act 1998 provides that modifications can be made to Sch 5 if approved by both Houses of the UK Government. S 30 has been used to modify in the past. S 63 of the Scotland Act 1998 reinforces this, it provides a conferral of functions.

1558: The Lord Advocate continues to say that the UK parliament should not consider effects that are contingent on further legislation to be enacted.  The consequences would be political. The UK Government has given no assurance or undertaking on how it would act if the Scottish people vote yes. Even if the majority of voters vote yes, then the practical relation would be dependent on political decisions.

1455: The Lord Advocate begins to discuss the Advocate General’s submissions. As we have seen, holding a referendum is not reserved. Beyond the immediate effect of ascertaining the will of the people, the advisory effects are properly characterised as speculative and do not establish the requisite nexus required.

1454: The Lord Advocate further states that particular attention is to be given to the practical effect of the Bill. The Bill would not alter or impede any legal rule affecting the kingdoms of Scotland and England. It would have no prescribed legal consequences arising from its result. It is not self-executing, like for example the 2011 referendum on the parliamentary voting system. 

1451: The Lord Advocate continues by stating that the purpose of the Bill does not extend to obtaining independence. The purpose of the bill is to obtain the views of Scottish people. The question which would be posed to the Scottish people is neutral between a yes and a no vote. The form of the question is to be approved by the electoral commission. The proposed bill is not directed at any particular outcome. The bill is directed towards ensuring a fair and balanced campaign. Therefore, the motivations and wider ambitions of the Scottish Government represent subjective intention which is not to be equated with the objective purpose of the bill. The objective purpose is to obtain the views of the people of Scotland. This is not changed by the motivations of Parliament.

1449: The Lord Advocate submits that whilst there is some care to be taken to applying those cannons of construction, they do point to the purpose of the bill being the holding of a referendum to ascertain views of people of Scotland on independence.

1446: The Lord Advocate notes the process of statutory construction in looking at this act. It is important by way of analogy to look at the process this Court has to go through to look at the purposes of s 29(3). The Lord Advocate notes the court has considered two canons of statutory interpretation.

1445: Lord Sales notes that usually you can have reference to the wider context rather than just the words of the statute.

1444: The Lord Advocate continues by saying that the third strand is that, if identifying the purposes of a provision is analogous to that adopted in statutory construction, that suggests a narrower rather than a wider purpose (that being the legally relevant purpose).

1441: The Lord Advocate turns to the argument that the Scottish Parliament does have competence. The Lord Advocate will spend more time looking at this argument. There are six strands. First, the statutory test is expressly directed to ascertaining whether the purpose of the provision relates to a reserved matter. The focus is not on the subject matter of the question, it is therefore not sufficient to establish the requisite nexus between leg measure and res matter, that the leg asked people about the subject matter. Secondly, there must be a sufficiently close connection between the purpose of the provision and a reserved matter. The Lord Advocate refers to the Welsh Asbestos case and the Continuity case. The Court has stated that there is relatively little scope for the Scottish leg to relate to international relations.

1440: The Lord Advocate that they are relevant to inform the whole circumstances and to inform the effect. That is why the Lord Advocate has referred to them here. The case of Miller wasn’t looking at the purpose of the reference under the Scotland Act 1998. There is no question about the background being relevant. However, the decision of this court must be on a legal basis and it must be a legal question for this Court.

1440: The Lord Advocate is intervened, and she is asked as to whether the background materials are admissible.

1439: The Lord Advocate submits that it was recognised that there would have to be a vote in Parliament and the members of Parliament had a constitutional responsibility to vote in relation to that matter as to whether they approved or otherwise.

1438: The Lord Advocate answers that it does have political significance. But ultimately when determining the provision and the political effects, the political fallout is irrelevant to the court. The Lord Advocate submits that this is the approach that the Court has taken when dealing with sensitive constitutional matters.

1437: The Lord Advocate is intervened; comment is made that the s 31 statement cannot be advised on and the Lord Advocate is asked whether she submits that it does not have political significance.

1435: The Lord Advocate moves onto the fifth argument against competence. Noting that the bill would be politically significant. The Lord Advocate refers to the case of R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant). 

1434: The Lord Advocate moves onto the fourth argument against competence and notes it is not devoid of legal consequences.

1432: The Lord Advocate returns to arguments against competence. The third argument is that although the immediate purpose of the bill is to obtain the views of the Scottish electorate, the background materials identify the purpose of the legal provision as being for Scotland to take steps towards being independent from the UK.

1431: The Lord Advocate notes that she will come onto this point later and then submits that it might be relevant to think of the intention of the UK Parliament. In creating a reserved matter, it is not to prevent the Scottish Parliament asking the Scottish people their view on things important to the Scottish People. The important thing would be whether the case law points to some kind of direct rather than inconsequential effect.

1429: Lord Reed intervenes with reference to the Christian Institute case. Lord Reed refers to the first sentence of page 805 as it is of some significance. Lord Reed notes that the matters listed in sch 5, such as the union and Parliament of the UK, are obviously examples of areas in which the UK as a whole has interest.

1428: The Lord Advocate submits that the argument has five elements. The first is the subject of the reference. It contains the union of Scotland and England. The question does not resolve the issue itself. The second is that the purpose of the provision must have more than a loose and consequential connection to the Union. 

1427: The Lord Advocate continues by saying that the arguments turn on what it means for the legislation to relate to the Union.

1425: The Lord Advocate now turns to argument that the proposed bill relates to the union. The Lord Advocate says that there is no real difficulty as to what the reserved matter means. The union is a legal union, between formally politically and legally independent kingdoms. The purpose of reserving matters relating to constitution, the matters in which the UK as a whole have an interest should continue to be the responsibility of the UK Parliament. The Lord Advocate refers to the Imperial Tobacco and Christian Institute cases. 

1425: In submission a matter will only relate to a reserved matter within s 29(2)(b) in circumstances where the purposes are directly and closely related to a reserved matter. In this context, requiring some actual or practical effect. An indirect, lose or consequential connection is insufficient.

1422: The Lord Advocate discussing the Christian Institute case notes that the Court found that the Bill did not relate to the Data Protection legislation because it was not “truly distinct” from the overall purpose of protecting the wellbeing of children.

1421: The Lord Advocate noting that the Advocate General objected to submissions because he did not address the Christian Institute case. For the purposes of this reference, the relevant issue in the Christian Institute & Others case is that the data sharing provisions were outside the competence because they related to the Data Protection directive that was not reserved.

1420: The Lord Advocate continues by saying that the Court’s reasoning in continuity; that there needs to be practical or legal effect on the law in the reserved matter. That reasoning is also in line with the Welsh Asbestos and Imperial Tobacco cases. The Lord Advocate argues that it is reasonable to suggest that holding an advisory referendum on an issue of international affairs would not relate to a reserved matter.

1418: The Lord Advocate notes that it is helpful to look at para 33 of that judgment. The court listed the things that the bill in that case did not do, including that the bill did not purport to affect the way current negotiations between the EU and UK are conducted, it simply regulates the legal implications of the withdrawal from the EU in Scotland. The Court noted in that case that this was something that the SP had the power to do.

1416: The Lord Advocate submitting that further consideration was given in the Continuity Bill case. Held that a bill of the Scottish Parliament would only relate to international relations if it interferes with or interrupts international relations of the UK Government. The Court here stated there is relatively little scope for Scottish Legislation to deal with international relations.

1414: The Lord Advocate continuing to refer to Lord Brodie, deals with the provision that relates to reserved matters. The Lord Advocate quotes from Lord Brodie and submits that rather than Lord Mance’s approach, Lord Brodie’s approach is entirely consistent with how it was approached in Imperial Tobacco. There was no criticism of this approach in the House of Lords. The Lord Advocate notes how we approach the reservations in the Scotland Act 1998 and how we approach the questions of subject matter. 

1412: The Lord Advocate continues by saying that the attention to detail and the need to understand whether there was more of an incidental effect. The Lord Advocate referring to para 124 where Lord Reed was dealing with a provision enacted to deal with a numbered of objectives. The language Lord Reed used here was important. Lord Reed used the hypothetical example used in Martin (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland).

1411: Lord Reed intervenes and says that the purpose of the provisions was the protection of health which was the restriction on the display of cigarettes. The purpose was the protection of health which was a reserved matter. This was to show we should look at more immediate purposes.

1407: Lord Advocate agrees with Lord Reed and continues to quote paragraph 123 of Imperial Tobacco. What is important is when we see how Lord Reed brings all authority together. In the context of the Imperial Tobacco case, that dealt with the sale of tobacco products. The Lord Advocate refers to Lord Reed’s judgment, that the legal effect of s 1 of that legislation’s short term practical consequences will depend on how Scottish Ministers use regulatory powers. The purpose of s1 is to allow the Scottish Minister’s to take steps, the legal effect is consistent.

1406: Lord Reed intervening, noting that this case referred to in his judgment is an early case. Trying to explain how position differed.

1403: The Lord Advocate submitted that Lord Mance’s approach highly consistent with Lord Reed’s in Imperial Tobacco case. In Imperial Tobacco, Lord Reed deals with s 29 of the Scotland Act 1998. The Lord Advocate refers to Lord Walker, explaining that the relevant rules are contained within the provisions of the Scotland Act 1998. The Lord Advocate notes that Lord Reed stated that there is a requirement to refer to s 29(2). The Lord Advocate referring to Lord Reed’s opinion that “related to” does not mean the same as “effects”, it should not be given a wide construction. The Lord Advocate continues to quote Lord Reed to discuss the interpretation of the reserved matters, noting that it should not reflect an assumption.

1401:  The Lord Advocate resumes and begins with saying that the Advocate General submitting that the Welsh Asbestos case hadn’t created a different approach to Imperial Tobacco is not correct. Lord Mance expressly including a requirement of directness. The reasoning and ratio of the case turned on the fact that the purpose and effect of the Welsh law was not closely and directly related to competence. It is not difficult to see why directness was at the heart of the reasoning in that case. The Advocate General further complained Lord Mance’s words were taken out of context and context was highly important to determining whether the law affected the funding of health services in Wales.

1301: Lord Reed adjourns the Court until 2pm.

1259: The Lord Advocate observes that the Welsh Asbestos case held that the connection between the purpose of a measure and in that case, a conferred power, must be close and direct. It is not sufficient that its general aim or subject matter concerns the subject matter of a conferred power. The Welsh asbestos law concerned funding the NHS in the sense it would raise money for the NHS but that was not sufficiently related to the conferred power for organisation and funding of the NHS. This is relevant to the issue as to whether an advisory referendum is related to the Union, and provides an illustration of a case where it was not sufficient that the law was concerned with the same subject matter but lacked direct connection. The Advocate General’s approach is not correct.

1256: The Lord Advocate argues that in Lord Mance’s reasoning in the Welsh case, it is directed to the degree or closeness of the connection between the purpose and effect of the legislation and the matter of funding the NHS. The provision was only indirectly related to the funding of the NHS and so the legislation was not within legislative competence. Lord Mance was concerned with the closeness of connection in this case.

1253: The Lord Advocate states the approach of the Welsh Act is exactly the same as what should be the approach to the Scotland Act 1998. Wales moved from a conferred to a reserved powers model in 2017.

1252: The Lord Advocate notes that the areas of competence are set out in the Welsh legislation. A question is asked from the Bench whether the Wales legislation contains a similar provision to s 29(3) of the Scotland Act 1998, and the Lord Advocate confirms there is.

1250: The Lord Advocate is referring the Court to the relevant statutory provisions considered in that case.

1248: The Lord Advocate says that guidance on what “relates to” a reserved matter is found in the Medical Costs for Asbestos Diseases (Wales) Bill case.

1241: Whilst that is the general framework, the Lord Advocate submits that taking the case law as a whole there is doubt about two matters: the precise relevance of connection to the statutory test set out in s 29(3); and secondly, the nature and degree of the connection that must exist before the possibility arises that a provision relates to a reserved matter.

1239: The approach to the term “relates to” was summarised in the Supreme Court’s case regarding the UK’s withdrawal from the EU (the continuity Bill case). The Supreme Court said that to relate to a reserved matter, the provision of a Scottish Bill must have more than a loose and consequential connection to it.

1238: The Lord Advocate notes the Union of the Kingdoms of Scotland and England, and the Parliament of the United Kingdom, are listed as reserved matters. The constitution is not reserved itself; only specified aspects of it.

1236: The Lord Advocate will consider the meaning of the term “relates to” reserved matters in s 29(3) of the Scotland Act 1998. This is a term of art.

1232: The limits on legislative competence of the Scottish Parliament are set down in s 29(a) of the Scotland Act 1998. This section provides that an Act of the Scottish Parliament is not law if it is outside the legislative competence of the Scottish Parliament. One of the relevant considerations is that the Act relates to reserved matters. This question is to be determined by reference to the purpose of the provision and having regard to its effects in all the circumstances (s 29(4)).

1228: The Lord Advocate is now discussing the creation and nature of the Scottish Parliament.

1227: The Bill is in materially the same terms as that which was authorised for the 2014 referendum.

1226: No provision is made for the effect of any result of the referendum in the Bill. It simply produces a result, so no legal consequences automatically flow from it.

1225: The Lord Advocate notes that the question in the proposed Bill is the same question as posed in the 2014 referendum.

1222: The Lord Advocate outlines her submissions on legislative competence, she will address: 1) the draft Bill; 2) then consider the relevant case law on the test to be applied under s 29(2) and (3) regarding “relates to” under the Scotland Act 1998; 3) next she will address the argument that the Bill relates to the Union and therefore is not within the competence of Scottish Parliament; 4) then addressing the opposing case to the effect that the draft Bill does not relate to the Union and is therefore within the competence of Scottish Parliament and recognising the thrust of Advocate General submissions; and 5) addressing the competing arguments on whether the Bill relates to the UK Parliament. The Lord Advocate now turns to the draft Bill.

1220: The Lord Advocate is addressing the case of Keatings and states that none of the reasons in that case apply to this Reference. The Bill may or may not be passed, and a statement on its legislative competence is needed. The issue cannot be referred to the Court post-enactment. The present Reference is not academic or premature. The suggestion that the Court should refuse to entertain the reference should be rejected.

1218: The Lord Advocate is now addressing case law cited by the Advocate General.

1213: There is no burden on the Supreme Court as references are limited to specialised Law Officers and the Lord Advocate. That is an assurance that references should be made sparingly. This is the first reference made in twenty-three years. The Supreme Court retains the power to ensure that references to it are appropriate.

1212: The Lord Advocate argues there is no basis for the Advocate General’s contention that the Supreme Court’s time should not be taken up with these questions. In accordance with the rule of law, Parliament has authorised the Supreme Court to make such a determination where the Lord Advocate considers the reference is appropriate and in the public interest. The Lord Advocate should not be the ultimate arbiter of the issue and be prevented from seeking a ruling by the Supreme Court where appropriate.

1209: The Lord Advocate states that the requirement for advice to Scottish Ministers is embodied in the Ministerial Code. Even if the Code does not require the Lord Advocate to clear Scottish Bills before they are introduced, the Scotland Act 1998 requires they must be within the legislative competence of the Scottish Parliament.

1205: The Lord Advocate notes that the Advocate General’s contention is very narrow and no example is provided by him regarding reserved matters. This narrow construction has implications for Sch 6 of the Scotland Act 1998 in terms of devolution issues.

1158: The Lord Advocate responds to the submission by the Advocate General that references under the Scotland Act 1998 to the Supreme Court could burden the Court in terms of resources. The Lord Advocate notes that if such a reference cannot be made, the issue cannot be determined. The burden on the finite resources of the Court is not realistic.

1147: Lord Sales intervenes to ask why there might be a difference between reserved matters as opposed to other matters which might cause difficulty with certification of competence of a Bill (for example the Convention rights issue).

The Lord Advocate notes that the point is that there is an opportunity to bring forward the issue expeditiously before the Court to allow the smooth running of the Scotland Act 1998. It is a way in which the Lord Advocate and the Scottish Ministers can seek an authoritative ruling from the Court.

Lord Sales says he wonders whether there might be any basis for saying reserved matters are particularly fundamental.

Lord Advocate says she will come back on that point. 

Lord Sales asks whether there are any explanatory notes which relate specifically to para 1(f) which might help answer the question.

The Lord Advocate says “no”, there are not but states that there is an internal government memo on this point. 

Lord Sales notes that would not be a document to which the Court could have regard. He invites the Lord Advocate to consider whether there is anything in that document which might assist in making her submission.

Lord Reed intervenes to clarify the thread of questions from the bench regarding why it is that “reserved matters” are specifically mentioned in para 1(f).

1142: Lady Rose intervenes to ask whether once a bill has been introduced, the s33 mechanism supersedes Sch 6 para 1(f)?

The Lord Advocate states that there are certain circumstances where Sch 6 para 1(f) would come into play. She states she wouldn’t wish to rule out that possibility.

1138: The Lord Advocate is clear that a question relating to a reserved matter has arisen under the Scotland Act 1998. The issue is not hypothetical and it is not premature for it to be resolved, contrary to the submissions for the Advocate General.

1119: The Lord Advocate is currently responding to the Advocate General’s position on jurisdiction. The Lord Advocate has not yet come on to deal with the substance of the Reference. 

Lord Reed intervenes to ask a question. He is wondering whether in the parties arguing that the ministerial code may be given more significance than it deserves, whether, under s31 of the Scotland Act 1998, a person in charge of a bill shall on or before the introduction of the bill state that in his view the bill would be within legislative competence. The person in charge of the bill may not be the Lord Advocate. It would be some minister of the Scottish Government and that person in order to make the statement would require legal advice from someone and the law officer is obviously the authoritative source of legal advice so far as the Government is concerned?

The Lord Advocate says that is correct.

Lady Rose asks whether the Lord Advocates have the power to refer a bill to the Court before introduction to Parliament if she were to disagree with the competence statement made by the person introducing the Bill. 

The Lord Advocate says she will come back to that query. 

1117: The Lord Advocate says if she could “sign off” the Bill at this stage, then no legal issue would arise.

1116: The Lord Advocate says she is not “seeking to refer a Bill at all”. She says this Reference is regarding a question about proposed legislation which currently cannot be cleared by her for introduction to Parliament. This is a question about proposed legislation.

1114: Lord Sales intervenes to ask a question about the qualification in para 34, Schedule 6 of the Scotland Act 1998.

1110: The Advocate General’s position is that the Court does not have jurisdiction. The Lord Advocate’s position is that the Court does have jurisdiction. She submits it is in the public interest for the Court to deliver judgment on the substance of the question referred.

1108: The Lord Advocate is turning to her “speaking note” on jurisdiction which was filed with the UKSC. This is a separate document to the Lord Advocate’s written case. The “speaking note” on jurisdiction is effectively a response to the Advocate General’s arguments regarding jurisdiction.

1106: The Lord Advocate makes reference to the case of Keatings. She says that case does not answer the question referred to this Court. That that case was premature, does not apply to this case. In the current context, the question is now one of considerable practical importance. The issue does not arise in the abstract, it is a live issue. Nothing said by the Lord President in Keatings should be said to exclude the present Reference.

1105: The Lord Advocate submits it is necessary and in the public interest to obtain an authoritative ruling from the Court. There is a genuine issue of law that is unresolved and if it is resolved, it would permit the proposed Bill to be introduced. The issue is one of exceptional public importance and is directly relevant to the manifesto pledge endorsed by the Scottish electorate.

1101: The Lord Advocate takes a positive argument regarding jurisdiction. She submits that the Court has jurisdiction and should answer the question referred to it.

1100: The Lord Advocate turns to the jurisdiction argument.

1056: The Lord Advocate explains that referendums may be “self-executing” but more commonly no provision is made regarding the consequence of the referendum, i.e., a non-self-executing referendum. This Bill would provide for a non-self-executing referendum. It would be “entirely advisory”. The 2014 Scottish independence referendum was also a non-self-executing referendum. In other words, a “yes” vote does not mean that Scotland becomes independent.

1054: The Lord Advocate is now making reference to materials regarding the history of referendums in the UK. She highlights that the referendum as a constitutionally significant device was recognised by Dicey. Dicey saw the referendum as sitting above parliament in the hierarchy of constitutional decision makers. The Lord Advocate submits that there is no consistent practice regarding the legal effect of referendums in the UK.

1050: The Lord Advocate is running through a number of academic articles on the question before the Court today.

1046: The Lord Advocate refers to the SNP election manifesto of 2021. She notes this is the basis on which the Scottish Government contested the recent election.

1045: The Lord Advocate says she is going to spend no more than an hour looking at materials before the Court.

1043: The Lord Advocate is explaining why the Reference came about. It is because she did not have the necessary degree of confidence to “sign off” on the Bill.

1041: The Lord Advocate refers to the comments from Lord MacKay who predicted this would become a “festering issue”. She says he was right. She submits it is now time for the Court to decide the question of whether it would be within Holyrood’s powers to legislate for a second referendum. 

1040: The Lord Advocate is addressing the context in which the Reference was made. She says the issue of Scottish independence is a live one in Scottish politics. The question of whether a bill allowing this within competence is controversial and undecided.

1039: The Lord Advocate says it is in the public interest to answer the substantive question referred to the Court.

1037: The Lord Advocate will begin by explaining the reason for the Reference to the Court. She says this is set out in her written case at paras 19-24. She says this is a power that has not previously been exercised by the Lord Advocate. 

1036: The Lord Advocate says she will deal with the jurisdiction arguments made by the Advocate General.

1035: The Lord Advocate has begun her submissions.

1034: Lord Reed has opened Court. He states that this court is the highest Court in civil matters for the whole of the UK including Scotland. This Court has a special function under devolution legislation. It is possible for the Lord Advocate to refer legal questions about devolution to the Court. The UK Government argues this power cannot properly be used in the circumstances of this case and that even if it can be used, the court should decline to exercise its discretion. 

The first question for the Court is one of jurisdiction.

Despite the political context of this reference, the question for the court is a legal question. 

The hearing is the tip of the iceberg. Lord Reed says the Court has more than 8,000 pages of written material to consider. It is likely to be some months before judgment.

1014: There are 15 minutes to go before oral submissions begin before the UK Supreme Court in the Lord Advocate’s Reference of devolution issues under para 34 of Sch 6 to the Scotland Act 1998.

1011: The Court’s summary of the issues and facts is available here: REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 (Expedited) – The Supreme Court

1009: The Advocate General argues that the Court does not have jurisdiction. The Advocate General’s written submissions state thatIn the context of the present Reference, if the Court has jurisdiction, it should nonetheless refuse the Reference in its inherent discretion to decline to determine abstract and premature issues in connection with a draft of a Bill which has yet to be introduced into and yet to be passed by the Scottish Parliament.”

1007: In addition to the substantive arguments, the Court will also hear submissions on whether the Court has jurisdiction to determine the Lord Advocate’s Reference.

0944: The SNP argues that “The right to self-determination, as a fundamental and inalienable right, must inform the interpretation of the 1998 Act when considering the answer to the questions posed by the Lord Advocate.” The SNP’s written case can be accessed in full on the SNP’s website. The SNP has not been granted permission to make oral arguments in Court.

0925: Today we will hear submissions from the Lord Advocate. Tomorrow we will hear from the Advocate General.

0921: You can read the biographies of the UKSC Justices here.

0917: You can read the UKSC Blog’s summary of the written arguments here.

0915: Good morning from the UKSC Blog team. The public will be able to watch the UK Supreme Court’s live feed of the proceedings from 10:30am on the UKSC website. The Lord Advocate’s written case can be found here. The Advocate General’s written case can be found here. The SNP’s written case can be found here. Five Justices will hear the case; Lord Reed (President of the UK Supreme Court and Scottish Justice), Lord Lloyd-Jones, Lord Sales, Lord Stephens, and Lady Rose.