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 (Dorothy Bain KC), will make arguments on behalf of the Scottish Government. The Advocate General (Lord Keith Stewart KC), 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.
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, ie, 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 recognized 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 several 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 Schedule 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 that “In the context of the present Reference, if the Court has jurisdiction, it should inherent discretion 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 answers 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, Dorothy Bain KC. Tomorrow we will hear from the Advocate General, Lord Keith Stewart KC.
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.