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by Margaret Taylor
04 October 2022
Just one Scottish judge on panel for Lord Advocate's indyref2 court case

Lord Reed is one of two Scottish judges who serve the UK Supreme Court

Just one Scottish judge on panel for Lord Advocate's indyref2 court case

Just one of the UK Supreme Court’s two Scottish justices will preside over the Lord Advocate’s referendum query when a panel of five judges hear the matter next week.

In July Lord Advocate Dorothy Bain KC asked the court to determine whether it would be lawful for the Scottish Government to hold a second independence referendum without being granted a Section 30 Order from the UK Government.

Both Bain and UK Government law officer Lord Stewart, the Advocate General for Scotland, have made written submissions to the court and will have their arguments interrogated by the justices on Tuesday and Wednesday next week.

Supreme Court president Lord Reed, who is a Scots lawyer, will be on the bench for that process but fellow Scot Lord Hodge, the court’s deputy president, will not.

The other justices overseeing the case are Welsh judge Lord Lloyd-Jones, Northern Irish member Lord Stephens and English judges Lord Sales and Lady Rose.

It is usual for either five or seven judges to oversee Supreme Court cases although in matters deemed to be of particular constitutional significance, such as the 2019 prorogation of parliament cases, 11 of the court’s 12 judges will sit. An odd number is always used so the panel’s ultimate decision is never tied.

The indyref2 case was brought by the Lord Advocate after First Minister Nicola Sturgeon said in June that she intends to hold another independence referendum in October next year.

It is widely accepted that a Section 30 Order, a piece of legislation that temporarily transfers powers from Westminster to Holyrood, would be required for the Scottish Government to do so, but the UK Government has repeatedly refused to grant one.

While Sturgeon indicated that she would press ahead without a Section 30 Order, Bain, who is both Scotland’s chief prosecutor and the Scottish Government’s main legal adviser, asked the Supreme Court to rule on whether that would be lawful as she did not have the “necessary degree of confidence” to say it would be.

The UK Government had attempted to have the matter thrown out, arguing that the court should consider only whether it should accept Bain’s reference rather than looking at the substance of the question itself.

The court rejected that bid, saying that “in the interests of justice” it wanted to “hear argument on both issues at a single hearing”.

In addition to hearing the Scottish and UK governments’ positions, the Supreme Court justices will consider arguments put forward by the SNP, which was granted permission to act as an intervener last month.

The party’s legal team, which is being led by Claire Mitchell KC, will not appear in person as the court gave permission for it to provide written submissions only.

“After consideration of the application filed on behalf of Scottish National Party seeking permission to intervene in this reference the court ordered that the application be granted by way of written submissions only, limited to 20 pages and avoiding repetition of the Lord Advocate’s arguments,” it said in a statement released last month.

While the hearing will take place next week the court’s judgment is not expected to be handed down until later in the year.

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