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Supreme Court must decide 'highly exceptional' indyref2 case, Lord Advocate argues

Supreme Court must decide 'highly exceptional' indyref2 case, Lord Advocate argues

Lord Advocate Dorothy Bain KC has told a bench of Supreme Court judges that they do have jurisdiction to hear her indyref2 case despite the UK Government arguing that the court has no authority to oversee the matter.

First Minister Nicola Sturgeon has indicated that she wants a second independence referendum to go ahead in October next year and that her government will introduce a Holyrood bill to enable that to happen.

Bain, who is the Scottish Government’s chief legal adviser, made a reference to the court in June, asking it to determine whether Holyrood can do that without Westminster’s say-so. Essentially, she is asking the court to rule on whether the ability to legislate for a referendum is a reserved or devolved matter.

The UK Government is seeking to have the matter thrown out without consideration, with its legal adviser Lord Stewart – the Advocate General for Scotland – arguing that the Supreme Court should not even consider the matter because the law states it can only be asked to intervene on legislation that has already been passed.

Addressing the court this morning, Bain dismissed Lord Stewart’s position that without the existence of a bill the reference is “advisory, abstract, hypothetical and premature”.

She noted it is “less than ideal that this court is being asked to decide on a bill that has not yet been introduced”, but said the “circumstances of the present case are highly exceptional”.

Bain said a “concrete legal issue has crystalised” in terms of whether the Scottish Government has the right to introduce a referendum bill and so it is “not premature” to ask the court to decide whether such matters are considered devolved or reserved from a legal standpoint.

“The answer will have a concrete effect,” she said. “It will determine whether the draft bill is introduced to parliament or not.”

In her opening remarks Bain noted the importance of clarifying the rules around referendums and highlighted that the late Lord Mackay of Drumadoon – a former lord advocate and member of the Supreme Court’s predecessor, the House of Lords – had predicted that if the matter was not settled ahead of the Scottish Parliament being created in 1999 it would become “a festering issue”.

“In our submission, he has been proved right. It is an issue that I invite this court to finally resolve,” she said.

The Lord Advocate, whose legal team includes Scots solicitor-advocate Christine O’Neill KC – chairman of the law firm Brodies and a longstanding Scottish Government adviser – and barrister Tom Hickman KC, concluded her oral submissions this afternoon.

The Advocate General, whose legal team includes Scottish silk David Johnston KC, is being represented in court by lead counsel Sir James Eadie KC, an English silk.

In his opening remarks Eadie said it is “clear” that it is “not appropriate for courts generally to engage with abstract questions of law until the facts are known”, adding that it is not clear in this case whether legislation will be passed or what its “precise terms” will be.

He continued that the Supreme Court should not consider the Lord Advocate’s case because, in the absence of a bill, no appropriate trigger point for a reference has been reached and that references cannot be made “willy-nilly”.

Eadie will conclude his submissions tomorrow.

At the beginning of the hearing Supreme Court President Lord Reed stressed that while the implications of the case are overtly political, the answers he and his fellow justices are being asked to determine are of a purely legal nature.

“The questions the court has to decide are technical questions of law,” he said. “The court will decide them by applying legal principles.”

He said that he and his fellow judges – Lords Lloyd-Jones, Stephens and Sales and Lady Rose – would first consider whether they “can and should properly answer” Bain’s question and, if they decide they can, they will then look at the wider issue of whether holding a referendum is a devolved or reserved competency.

Planning for a referendum will need to get underway soon if the SNP’s October 2023 timetable is to be met. However, Lord Reed warned that, as is usual with Supreme Court cases, which are highly technical by nature, it is likely to be “several months” before he and his fellow justices are ready to deliver their judgment.

“The hearing is the tip of the iceberg,” he said. “There are more than 8,000 pages of written material to consider.”

The case has implications for each devolved nation of the UK and the panel overseeing the case includes representatives from all four jurisdictions: Lord Reed is qualified in Scots law, Lord Sales and Lady Rose are experts in English law, Lord Lloyd-Jones has a background in the Welsh court system, and Lord Stephens was previously a judge in Northern Ireland.

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