Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 – UKSCBlog

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. 

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; 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 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 Schedule 6 of the Scotland Act in terms of devolution issues.

1158: The Lord Advocate responds to the submission by the Advocate General that references under the Scotland Act 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. 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 Schedule 6 para 1(f)?

The Lord Advocate states that there are certain circumstances where Schedule 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. 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, 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.

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 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 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, 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. 


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