It is of “exceptional importance” that the question of whether the Scottish Parliament can legislate for a second referendum on independence is resolved, the Supreme Court has been told.
On Tuesday morning, justices at the UK’s highest court began hearing evidence 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 set out the function of the court and said it would likely be “some months” before a decision was reached.
Two days have been set aside for the hearing at the Supreme Court in London, with the UK Government expected to respond on Wednesday.
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 in London.
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.
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.
She told the court: “That was the case in the Scottish Independence Referendum Act 2013, which provided for a referendum on independence.
“It was a position adopted by the Westminster Parliament in the European Union Referendum Act 2015. And it is the position in respect of the draft Bill.
“A non self-executing referendum invariably has political consequences, but in law, it has no effect. They are entirely advisory.”
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.
She said there is a “genuine issue” that is unresolved, adding: “The issue is one of exceptional importance to the people of Scotland and the UK.”
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.
She also said the circumstances which have led to the reference being made to the court are “highly exceptional”.
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”.
“It’s simply not the correct characterisation of the reference,” she told justices.
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.”
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.
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.
“The court will decide them by applying legal principle,” Lord Reed said.
He said justices had “more than 8,000 pages of written material to consider”.
Lord Reed added: “It is likely to be some months before we give our judgment.”
