Supreme Court: Scottish Referendum Bill

23 November 2022

The Supreme Court gave a unanimous answer to the Lord Advocate’s question: Does the Scottish Parliament have power to legislate for the holding of a referendum on Scottish Independence? Devolution issues under the Scotland Act 1998, Reference by the Lord Advocate [2022] UKSC 31  Lord Reed P, Lord Lloyd-Jones, Lord Sales, Lord Stephens, Lady Rose

The answer was (1) the provision of the proposed Scottish Independence Referendum Bill that provided that the question to be asked in a referendum would be “Should Scotland be an independent country?” did relate to reserved matters. (2) In particular, it related to (i) the Union of the Kingdoms of Scotland and England and (ii) the Parliament of the United Kingdom.

To reach that conclusion the court considered, first, whether the question referred by the Lord Advocate was a devolution issue; secondly, if it were, whether the court should accept the reference; and thirdly, if so, how the question should be answered. If either of the first two questions was no, the third question did not arise.

The expression devolution issue was defined by paragraph 1 of Schedule 6 of the Scotland Act 1998.  The court held that it included any other question arising by virtue of the Act about reserved matters and was a devolution issue which the court had jurisdiction to decide. Among other things, it was consistent with the rule of law and with the intention of the Scotland Act that the Lord Advocate should be able to obtain an authoritative judicial decision on the legislative competence of the Scottish Parliament in advance of the introduction of a Bill.

The reference had been made in order to obtain an authoritative ruling on a question of law which had already arisen as a matter of public importance, the court’s answer would determine whether the proposed Bill was introduced into the Scottish Parliament. Concluding that it should accept the reference the court observed that it was not therefore hypothetical, academic or premature.

The proposed Bill would relate to a reserved matter if it had something more than a loose or consequential connection with it. The purpose and effect of the provision may be derived from a consideration of both the purpose of those introducing the legislation and the objective effect of its terms. Its effect was not restricted to its legal consequences.

Reserved matters relevant here were the Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom (which included the sovereignty of the United Kingdom Parliament).

The  purpose of the proposed Bill was to hold a lawful referendum on the question of whether Scotland should become an independent country: that is to say, ending the Union and the sovereignty of the United Kingdom Parliament over Scotland. Its effect would not be confined to holding the referendum. Even if the referendum had no legal consequences, it would be a political event with important political consequences.

The proposed Bill, therefore, had more than a loose or consequential connection with the reserved matters of the Union of Scotland and England and the sovereignty of the United Kingdom Parliament. It was therefore outside the legislative competence of the Scottish Parliament.

Intervening, the Scottish National Party made written submissions founded on the right to self-determination in international law and the principle of legality in domestic law.  The right to self-determination was not in issue here.  It did not require a narrow reading of “relates to” in section 29(2)(b) so as to give a more limited scope to the limitation of legislative competence relating to reserved matters. No reading of that subsection, whether wide or narrow, could result in a breach of the principle of self-determination in international law. The Scotland Act allocated powers between the United Kingdom and Scotland as part of a constitutional settlement. It established a carefully calibrated scheme of devolution powers.

The allocation of powers between the United Kingdom and Scotland under the Scotland Act did not infringe the principle of legality.