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Peter Davidson

All you need to know from final day of Supreme Court independence referendum hearing

Judges in the Supreme Court heard evidence for and against First Minster Nicola Sturgeon's plan to hold a second independence referendum for the second and final day today.

James Eadie KC, representing the Advocate General for Scotland, continued his arguments before a panel of five justices on Wednesday morning.

During his submission to the court he argued the Scottish Government should not have "farmed out" the referendum Bill to the UK's top court. While in the afternoon session the Lord Advocate Dorothy Bain, representing the Scottish Government, said her reference over the issue of a referendum was not raised "on a whim or willy-nilly".

Judges have been asked to decide whether the Bill relates to "reserved matters" - meaning it is outwith Holyrood's competence.

At the start of the hearing on Tuesday the president of the court Lord Reed said the outcome of the case would not be communicated for "some months".

So, here's all you need to know from the second and last day of the hearing:

SNP accused of 'farming out' Bill

The question of whether a bill is within the legislative competence of the Scottish Parliament should not be "farmed out" to the Supreme Court, justices were told.

Sir James Eadie KC, continuing arguments on behalf of the Advocate General for Scotland, told the court that a person in charge of a bill at Holyrood must make a "positive" statement that it is within the competence of the Scottish Parliament.

The barrister said this was part of the "pre-legislative safeguards" that exist in law, and with the UK Parliament including such a provision so that someone in charge of a bill can "pin their colours to the public mast on competence".

"It is for the person in charge of the bill to form that view," he said, adding that it was not "simply to be farmed out to the Supreme Court".

Sir James said this would be inviting justices "to in effect provide advice to the person in charge of the bill and or the law officer".

Challenging the Lord Advocate's arguments over her reference of a proposed independence bill, he asked: "Where is the limit on her case? Suppose the Scottish Government have an early draft of a bill? ... What if there isn't a bill at all and they simply have an abstract policy idea?"

Sir James Eadie KC, representing the Advocate General, in the Supreme Court (Supreme Court)

Parliament doesn't have competence

Sir James Eadie KC has told the Supreme Court it is "obvious" that the Scottish Parliament does not have competence to legislate for a second independence referendum.

The UK Government's legal representative said the proposed Bill for a referendum were "self evidently, directly and squarely" about a matter reserved to Westminster - the union between Scotland and England.

He told the court: "The impacts and effects of Scottish independence would be felt throughout the United Kingdom. All parts of the United Kingdom have an interest in that issue, not just Scotland. It's obvious why it's reserved to the United Kingdom parliament. It's of critical importance to the United Kingdom as a whole."

"It's equally obvious why the Union could not be a matter over which the Scottish Parliament has competence. It would be fundamentally at odds with the purpose of devolution to grant powers to the Scottish Parliament within the Union."

Eadie said the Lord Advocate's argument that the Bill did not relate to the Union was "untenable". Despite not being a "self-executing" referendum, the draft Bill still related to the Union, he argued.

He said: "The purpose of the draft Bill is not to have an opinion poll, but to seek to take political advantage and another advantage of this being a referendum."

Scottish Government brought 'strange' case

Sir James Eadie KC said the Lord Advocate had brought a "strange" case to the Supreme Court, with arguments that go against "common sense".

He said shortly before the court rose for a lunch break that it was a "strange reference legally" as it "comes to the court in circumstances in which the Scottish Government has felt not even able to introduce a bill to the Scottish Parliament on the apparent basis that their own law officer is not able to say that it comes within competence".

Sir James added: "And yet in the same breath they seek to assert that their draft bill does not even relate to the Union".

He said this required an interpretation of "relates to" that was contrary to "ordinary language", case law and "common sense".

Issue not raised 'on a whim'

The Lord Advocate Dorothy Bain KC told the court that her Supreme Court reference over the issue of a Scottish independence referendum was not raised "on a whim or willy-nilly".

She told justices in reply to arguments earlier made by Sir James Eadie KC : "The reference has been brought responsibly and after careful consideration as to whether it would be appropriate to do so."

Bain continued: "The reference has been brought not because the issue is trivial or one that has been raised on a whim or willy-nilly. It is a matter of the utmost constitutional importance," she added.

In response to a suggestion that the Supreme Court accepting jurisdiction over the issue would risk "opening the flood gates", she told the court: "The power to make a reference... is conferred on law officers who can be assumed to exercise the function responsibly."

"The court may have regard to the reality of the situation," Bain said. The reality here is that I have used the power to make this reference as Lord Advocate and it's the first reference since the beginning of devolution."

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