Supreme Court asked to rule on ‘critically important question’ of Indyref2

Judges at the UK’s highest court heard arguments in the case around the Scottish Independence Referendum Bill.

11 October 2022

Judges at the Supreme Court have been asked to rule on the “critically important question” of whether the Scottish Parliament can legislate for a second independence referendum.

On Tuesday, justices at the UK’s highest court began hearing arguments in the case concerning the Scottish Independence Referendum Bill, a proposed law in the Scottish Parliament.

The Lord Advocate, the Scottish Government’s most senior law officer, began making her arguments after a short introductory statement from Lord Reed, who is presiding in the panel of five judges.

Supreme Court president Lord Reed said it would likely be “some months” before a decision was reached.

Justices of The Supreme Court swearing in
Lord Reed said it would be ‘some months’ before there was a decision (Kevin Leighton/UK Supreme Court)

Two days have been set aside for the hearing at the Supreme Court in London.

The UK Government’s legal representative began making his argument later on Tuesday, saying the court should not rule on the issue.

Judges have been asked to decide whether the Bill relates to “reserved matters” – meaning it is outwith Holyrood’s competence.

Dorothy Bain KC, the Lord Advocate and the Scottish Government’s top law officer, began her argument by outlining why she had referred the issue to the court.

Supreme Court centenary
The case is being heard in London (John Stillwell/PA)

She told a panel of five justices that it was “necessary” and “in the public interest” that the question of legislative competence was answered by the court.

Ms Bain told the court that a majority of Scottish MPs were elected in 2019, and MSPs in 2021, on manifesto commitments to hold a further referendum.

“The issue of Scottish independence is a live and significant one in Scottish electoral politics and the Scottish Government wish to introduce a Bill in the Scottish Parliament to provide for the holding of a referendum,” she said.

Ms Bain later discussed arguments around the legality of an independence referendum.

(PA Graphics)
(PA Graphics)

She referred to comments made in Parliament regarding the Scotland Act of 1998, as well as the views of legal academics.

The referendum proposed by the Scottish Government is “non self-executing”, she said.

The Lord Advocate later said that without a ruling from the Supreme Court to resolve the issue of whether Holyrood has the legal power to bring forward a referendum Bill, she would not be able to “clear” the introduction of such a Bill herself.

The Lord Advocate also said there is a “risk” that a referendum Bill could be introduced by an individual member of the Scottish Parliament, and said this underlined the need for a ruling from the court on the legal issues.

First Ministers Questions FMQs Scottish Politics
Dorothy Bain KC is representing the Scottish Government (Fraser Bremner/Scottish Daily Mail/PA)

Ms Bain rejected arguments by the Advocate General for Scotland, who represents the UK Government, that the Supreme Court should refuse to determine the referendum case because it was “advisory, abstract, hypothetical” and “premature”.

She argued that the role of Lord Advocate should not be one of “ultimate arbiter” on the issue.

The Lord Advocate went on to argue that the Scottish Government’s draft Bill for an independence referendum is within Holyrood’s legislative competence.

She said: “Holding a referendum is not a reserved matter.”

James Eadie is speaking for the UK Government (Aaron Chown/PA)

Nobody disputed that the Referendums (Scotland) Act 2020, which set out provisions for the conduct and regulation of referendums, was within Holyrood’s legislative competence, she said.

She said there were various examples of the Scottish Parliament debating and passing motions on matters reserved to Westminster.

She said: “Scottish ministers, it can be argued, are not precluded from consulting the people of Scotland on a wide variety of issues.

“And they are not precluded to consult with the people of Scotland on the issue of independence.”

Continuing her legal arguments, she said: “The politics of the issue is not for this court.”

The Lord Advocate said in relation to the proposed Bill that “it does have some political significance” just as the UK’s vote to leave the EU had “great political significance”.

As she brought her oral legal arguments to a close, the Lord Advocate said she was seeking the Supreme Court’s ruling on a “critically important question” and echoed comments made in her written case.

Later on Tuesday afternoon, Sir James Eadie KC began outlining the UK Government’s arguments to the court.

Sir James, representing the Advocate General for Scotland, told the Supreme Court justices that it is not appropriate for courts to “deal with abstract questions of law, when the facts are not known”.

The proposed independence referendum Bill is at too early a stage for the court to offer a ruling on it, he argued.

He suggested that the legislation should not be continued if the Scottish Government’s law officer was not persuaded of its legislative competence.

He said: “If you can’t even persuade your own law officer that you are within competence the shutters come down within the scheme of this legislation.”

Earlier, Lord Reed told those following the hearing that it was likely to be “some months” before justices gave their ruling.

He said that “despite the political context” of the case, the issues the court had to consider were “limited to technical questions of law”.

The first is whether the court should have jurisdiction over the case and, if it does, how it should answer the question over whether or not the proposed referendum Bill relates to “reserved matters” and is outside the Scottish Parliament’s legislative competence.

Lord Reed added: “It is likely to be some months before we give our judgment.”

The case is due to continue on Wednesday morning, when Sir James will set out more of his arguments.

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