This blog considers the Lord Advocate’s reference to the Supreme Court of devolution issues under paragraph 34 of Schedule 6 of the Scotland Act 1998. Specifically, the reference relates to whether section 2 of the Scottish Government’s proposed draft Scottish Independence Referendum Bill (which provides that a question be asked in a referendum and that the question would be “Should Scotland be an independent country?”) relates to reserved matters.
It also looks at the judgment on the reference and its implications for the Scottish Government’s plans for a second independence referendum.
Basis for the reference
In a statement on a second independence referendum on 28 June 2022, the First Minister indicated a wish for ‘legal clarity’ on whether a second independence referendum is within the legislative competence of the Parliament. The First Minister said:
If the issue of legislative competence remains unresolved at the point of formal introduction of the bill, the UK Government will almost certainly use section 33 of the Scotland Act 1998 to refer the matter to the Supreme Court after the legislation has passed. Similarly, challenge could be brought by private individuals in the form of judicial review…Either way, at the point of Parliament passing the bill, there would be no certainty about when or even if the legislation could be implemented. A court challenge would still lie ahead and the timetable that I have set out today would quickly become difficult to deliver.
The First Minister announced that the Lord Advocate has exercised her power under paragraph 34 of schedule 6 of the Scotland Act 1998 to refer the question of whether a Bill providing for a referendum on Scottish independence would relate to a reserved matter to the Supreme Court.
The reference to the Supreme Court was filed on the afternoon of 28 June 2022.
In the Lord Advocate’s written case to the Court it is stated that the Lord Advocate:
seeks from this Court a determination of the following question:
Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be “Should Scotland be an independent country?” relate to reserved matters? In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England (para.1(b) of Schedule 5); and/or (ii) the Parliament of the United Kingdom (para.1(c) of Schedule 5)?
In essence, the reference aims to get a decision from the Supreme Court as to whether a referendum on Scottish independence is within the legislative competence of the Scottish Parliament. In an article for the Scotsman, Professor Aileen McHarg explained:
Essentially, the issue turns on whether an advisory referendum – one which seeks to ascertain the views of the Scottish people on independence, but does not do anything, legally, to bring it about– “relates to” the Union and/or the UK Parliament, both being matters reserved to Westminster. While a referendum Bill undeniably has something to do with those reserved matters, previous decisions have held that “relates to” requires more than “a loose or consequential connection”, and depends on how the purpose and effect of the Bill are understood. A narrow reading of “relates to” would bring a referendum Bill within devolved competence, whereas a broad reading would render it outwith competence.
The route for the reference
The established route for challenging a Bill, or a provision of a Bill, passed by the Parliament is via section 33(1) of the Scotland Act 1998. Such a challenge can be made in a four week period after the Parliament has agreed a Bill, but before it received Royal Assent. A challenge via section 33 can be brought by the Advocate General (a UK law officer who advises the UK Government on Scots Law), the Lord Advocate (the Scottish Government’s most senior law officer) or the Attorney General (the UK Government’s most senior law officer). A number of Bills, for example the UK Withdrawal from the European Union (Legal Continuity) Scotland Bill and, more recently, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, have been referred to the Supreme Court in this way by the UK law officers who believed provisions of the Bills were outside the Parliament’s legislative competence.
The section 33 procedure can be seen as a safeguard to ensure that a Bill passed by the Scottish Parliament is within its competence before it receives Royal Assent and becomes law.
The reference concerning the draft Scottish Independence Referendum Bill is the first via paragraph 34 of schedule 6. Devolution issues are defined in the Scotland Act 1998 (paragraph 1 of schedule 6) and the definition includes:
(f) any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters.
The Lord Advocate’s argument is that this provision in the Scotland Act 1998 allows a law officer to “refer to the Supreme Court any devolution issue which is not the subject of proceedings” and that, given the question is not the subject of other proceedings and that it “raises a devolution issue (within the meaning of para.1(f) of Schedule 6) and accordingly that this Court is able to provide authoritative legal guidance on the issue.”
Not the subject of proceedings is generally taken to mean not the subject of another case before the courts.
The UK Government’s argument to the Court is that the reference, and the question posed by it, does not fall within the jurisdiction of the Supreme Court afforded by paragraph 34 of schedule 6 of the Scotland Act 1998. Further, the UK Government argues that this referral route was not intended to circumvent the section 33 procedure for testing bill provisions and, as a result, the Lord Advocate’s submission is premature because no Bill has been passed by the Scottish Parliament (at present a draft Bill has been published by the Scottish Government but not formally introduced in Parliament). The UK Government’s written case states:
In the context of the present Reference, if the Court has jurisdiction it should nonetheless refuse the Reference in its inherent discretion to decline to determine abstract and premature issues in connection with a draft of a Bill which has yet to be introduced into and yet to be passed by the Scottish Parliament.
Professor Aileen McHarg has explained the issues about the route used for the reference:
Typically, challenges to legislative competence are raised either once a Bill has been passed by the Scottish Parliament, or after it has received Royal Assent and become an Act. In this case, though, the Lord Advocate has referred the draft Bill before it has been introduced at Holyrood, invoking a broad, but previously unused, power to refer questions about reserved matters to the Supreme Court. She argues that it is in the public interest to settle the question whether Holyrood has power to legislate for a referendum, and that there might not be any other way of doing so, because the degree of uncertainty is so great as to prevent a Bill ever being introduced.
By contrast, the Advocate General argues that it is inappropriate to use this procedure to challenge a draft Bill, and indeed he sought to have the reference struck out as incompetent.
This is a point also covered by Professor Stephen Tierney in a recent blog for the Bennett Institute for Public Policy in which it is explained:
The Advocate General argues that the Lord Advocate’s reference procedure (under Schedule 6, para 34) cannot be used to test the legality of a proposed bill.
In the event, the Court chose not to rule on this jurisdictional question (that is whether paragraph 34 of schedule 6 to the Scotland Act 1998 can be used to refer a question to the Court in this way and hence whether the Court has the authority to make a decision on the case) as a first step and instead chose to hear arguments on jurisdiction along with arguments on the substance of the reference.
What questions has the Supreme Court considered?
The Court heard the case over two days – 11 and 12 October 2022. The case summary highlights the three key questions of the case:
(1) Is the question referred by the Lord Advocate a “devolution issue”? If not, it cannot be the subject of a reference under paragraph 34 of Schedule 6, which would mean that the Court does not have jurisdiction to decide it.
(2) Even if the question referred by the Lord Advocate is a devolution issue, should the Court decline to determine the reference as a matter of its inherent discretion?
(3) Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be “Should Scotland be an independent country?” relate to reserved matters? In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England; and/or (ii) the Parliament of the United Kingdom?
What does the judgment say?
At 9:45 on Wednesday 23 November 2022 the UK Supreme Court delivered its judgment on the reference. The judgment can be found on the Supreme Court website.
The Court decided that that the question referred by the Lord Advocate is a devolution issue and therefore it did have jurisdiction to make a decision on the substance of the case (i.e., the route of the reference via paragraph 34 of Schedule 6 to the Scotland Act was acceptable).
It further concluded that is should accept the reference.
The reference has been made in order to obtain an authoritative ruling on a question of law which has already arisen as a matter of public importance. The Court’s answer will determine whether the proposed Bill is introduced into the Scottish Parliament. The reference is not therefore hypothetical, academic or premature.
The Court’s judgment on the substance of the case – specifically, whether section 2 of the Scottish Government’s draft Scottish Independence Referendum Bill related to reserved matters – was unanimous. The Court decided that the section of the Bill does relate to reserved matters. As such, the Court’s judgment is that it is not within the Scottish Parliament’s legislative competence to legislate for a referendum on independence.
In a unanimous judgment, the Court answers the questions before it as follows. First, the question referred by the Advocate General is a devolution issue, which means that the Court has jurisdiction to decide it. Secondly, the Court should accept the reference. Thirdly, the provision of the proposed Bill which makes provision for a referendum on the question, “Should Scotland be an independent country?” does relate to matters which have been reserved to the Parliament of the United Kingdom under the Scotland Act. In particular, it relates to the reserved matters of the Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom. Accordingly, in the absence of any modification of the definition of reserved matters (by an Order in Council or otherwise), the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence.
How did the Court reach its decision?
The Court held, in line with established case law, that a provision “will relate to a reserved matter if it has something more than a loose or consequential connection with it.”
In deciding the question before the Court (“whether the provision of the proposed Bill which provides for a referendum on Scottish independence would relate to matters which have been reserved to the United Kingdom Parliament under the Scotland Act (section 29(2)(b))”), the Court considered both the purpose of the provision and its “effect in all the circumstances”.
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.
The Court determined the purpose of the Bill “is to hold a lawful referendum on the question whether Scotland should become an independent country.” The Court decided that:
That question evidently encompasses the question whether the Union between Scotland and England should be terminated, and the question whether Scotland should cease to be subject to the sovereignty of the Parliament of the United Kingdom.
On effect, the Court determined that section 2 of the draft Bill (the holding of a referendum on whether Scotland should be an independent country) “is not restricted to its legal consequences”. The Lord Advocate had argued that because section 2 of the draft Bill provided for a consultative referendum (meaning that those eligible to vote are asked to vote on a principle rather than a set proposal) rather than a legally binding one, there was no legal effect. The Court’s view was that:
The effect of the Bill, however, will not be confined to the holding of a referendum. Even if it is not self-executing, and can in that sense be described as advisory, a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion. It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion. Its importance is reflected, in the first place, in its official and formal character. Statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.
Taking into account the purpose and effect, the Court’s judgment was that:
It is therefore clear that the proposed Bill has 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. Accordingly, the proposed Bill relates to reserved matters and is outside the legislative competence of the Scottish Parliament
Sarah McKay, Senior Researcher