THE UK Government kept up efforts to have the Supreme Court independence referendum case thrown out altogether as its top law officer gave evidence the Lord Advocate described as "belittling".
On the second and final day of the constitutional showdown in London, Sir James Eadie KC, representing the Advocate General for Scotland, spent most of his time arguing that the reference should be tossed rather than engaging with any of the substantive arguments.
Eadie refused to address the SNP’s written submission which set out the argument for Scotland’s right to self-determination, instead claiming that the Lord Advocate had brought a “strange” case to the UK’s highest court with arguments that go against “common sense”.
On Tuesday Dorothy Bain KC, on behalf of the Scottish Government, argued that the political implications of an independence referendum should be separated and the court only decide on a point of law - whether or not the Scottish Parliament has the legislative competence to pass a Referendum Bill.
Lord Stephens, Lord Lloyd-Jones, Lord Reed, Lord Sales and Lady Rose were told by Eadie that as the bill is in draft form it is at too early a stage for the court to offer a ruling.
The judges are being asked to make a decision on two points, first whether they should rule on the issue at all, and secondly whether it is within Holyrood’s competence.
Eadie continues his arguments
Eadie spent around two hours and 40 minutes of his morning session arguing that the court should throw out the reference as it is not in the court’s jurisdiction. He also claimed that the Scottish Government “do not like” the initial answer they received from the Lord Advocate around the competence of the draft bill.
Continuing his arguments from Tuesday afternoon, Eadie told the court that the question of whether or not a bill is within Holyrood’s competence should not be “farmed out” to the Supreme Court.
Eadie argued that the MSP in charge of a bill must make a “positive” statement of competence was part of “pre-legislative safeguards” that exist in law.
“It is for the person in charge of the bill to form that view,” Eadie said, adding that it was not “simply to be farmed out to the Supreme Court”.
He added that this would involve inviting justices “to in effect provide advice to the person in charge of the bill and or the law officer”.
The UK Government lawyer also claimed that it is “obvious” the Scottish Parliament doesn’t have competence to legislate for indyref2, and that the proposed bill is “self-evidently, directly and squarely” about a matter reserved to Westminster – the Union between Scotland and England.
Lord Advocate's rebuttal
In her rebuttal, the Lord Advocate told the Supreme Court that she did not raise the issue of a Scottish independence referendum on a “whim or willy-nilly”
She told justices in reply to arguments earlier made by Eadie: “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.
“It is a matter of the utmost constitutional importance.”
In response to a suggestion that the Supreme Court accepting jurisdiction over the issue would risk “opening the floodgates”, 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.
“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.”
Bain described Eadie’s arguments over the nature of the case as “so unfair” and set out that the matter had been a “real issue, a festering issue from the early days of devolution”.
She said Eadie’s characterisation was “just not right” and that he was trying to make a “crystalised” argument academic, adding that First Minister Nicola Sturgeon had asked her to make the reference to the court.
The conclusion
Closing her arguments, Bain said that the UK Government’s points were “belittling”, and warned that some lawyers lose cases they think they will win, while others win cases they think they will lose.
The court’s president Lord Reed brought proceedings to a close after lawyers had finished making their oral arguments.
He reiterated the panel of five justices “will require time to consider what we’ve heard” adding that they “appreciate the importance of this and we will let you have our judgment as soon as we can”.
