By The second day of the Supreme Court docket listening to within the matter of a reference by the Lord Advocate of devolution points underneath s.34 of Schedule 6 (the “Reference”) to the Scotland Act 1998 (the “Act”) happened on Wednesday. CMS Associates James Warshaw and Francesca Knight heard arguments from inside the Supreme Court docket.
Day 2 of the listening to was simply as busy as Day 1, with the media and the general public eager to witness the shut of this constitutionally important listening to. Persevering with on from the top of Day 1, the primary a part of Day 2 was taken up with the Advocate Basic’s submissions, made in opposition to the Reference by the Lord Advocate.
Because it had been beforehand ordered that the problem of the court docket’s jurisdiction to listen to the Reference must be rolled up with submissions on the substance of the Reference, the Advocate Basic (Sir James Eadie KC showing) continued coping with the jurisdiction situation earlier than shifting onto the substance.
Jurisdiction
The Advocate Basic submitted that the Reference was untimely and as such the Court docket had no jurisdiction to listen to it. He submitted additional that the Court docket ought to decline to train its discretion on this regard.
Following on from submissions made yesterday regarding the usage of s.33 of the Act (quite than s.34 of Schedule 6 on this case), the Advocate Basic spent a while wanting on the legislative safeguards (reminiscent of in s.31 of the Act) which stop the Scottish Parliament appearing outdoors its competence.
The AG then proceeds to make various additional factors in relation to the jurisdiction situation. He addressed the problems that will come up if the Lord Advocate (or the opposite regulation officers) had been to be allowed to make a Reference in respect of draft Payments, together with the chance that references could also be made in respect of coverage concepts.
A operating theme of the Advocate Basic’s submissions was that the Act was intentionally drafted in such a approach as to make sure that solely Payments which had been launched to Parliament could possibly be referred underneath Reference process.
Substance
The Advocate Basic then submitted that, even when the Court docket decided that it did have jurisdiction to listen to the Reference, the reply to the Reference query must be ‘Sure’ ie, {that a} referendum on Scottish independence pertains to reserved issues and so shouldn’t be inside the legislative competence of the Scottish Parliament to legislate on this space. This was the case whether or not the referendum was legally binding/“self-executing” or advisory.
The Advocate Basic submitted that the draft invoice clearly associated to reserved issues, that being the Union of the Kingdoms of Scotland and England (underneath s.1(b) of Schedule 5 of the Act) and issues regarding the Parliament of the UK ( underneath s.1(c) of Schedule 5). The truth that the referendum wouldn’t be ‘self-executing’ additionally didn’t imply it didn’t relate to the Union. The UK Parliament has intentionally reserved issues regarding the Union together with questions on whether or not it ought to proceed.
The Advocate Basic didn’t interact with SNP’s self-determination arguments as set out of their written pleadings.
Response
The Lord Advocate highlighted the constitutional significance of the Reference and criticized the Advocate Basic for belittling and undermining the significance of the problem. She stated that the Reference “has been introduced not as a result of the problem is trivial or one which has been raised on a whim or willy-nilly. It’s a matter of the utmost constitutional significance.” She submitted that the Reference had been introduced responsibly, after detailed consideration, and on the request of the First Minister.
In response to the issues concerning the potential opening of floodgates (ie the chance that coverage concepts can be referred), the Lord Advocate highlighted that that is the primary Reference within the historical past of devolution.
Judgment
Lord Reed commented that judgment can be delivered as quickly as potential. Nevertheless, as indicated on Day 1, the Court docket has greater than 8,000 pages of written materials to contemplate and it’s prone to be a number of months earlier than judgment is delivered.