The Lord Advocate referred the question whether a proposed Scottish Independence Referendum Bill related to reserved matters under the Scotland Act 1998. The Supreme Court unanimously held that such a Bill did relate to the reserved matters of the Union and the UK Parliament, meaning the Scottish Parliament lacked legislative competence to enact it.
Background
The Scottish National Party, which has formed the Scottish Government since 2007, wished to hold a second referendum on Scottish independence. A previous referendum in 2014, authorised by an Order in Council under section 30(2) of the Scotland Act 1998 modifying Schedule 5 reserved matters, resulted in a majority vote against independence. The UK Government was unwilling to agree to a further Order in Council. The Scottish Government therefore wished to legislate for a referendum without any such Order, relying solely on the Scottish Parliament’s legislative competence.
The Lord Advocate, as senior Law Officer of the Scottish Government, considered that she would be unlikely to have the necessary degree of confidence that the proposed Scottish Independence Referendum Bill did not relate to a reserved matter, as required to clear a Ministerial statement under section 31(1) of the Scotland Act. At the First Minister’s request, she referred the question of the Bill’s legislative competence to the Supreme Court under paragraph 34 of Schedule 6 to the Scotland Act.
The Issue(s)
Three questions arose for the court:
- Whether the question referred by the Lord Advocate constituted a ‘devolution issue’ within the meaning of paragraph 1 of Schedule 6, such that the court had jurisdiction to determine it;
- If so, whether the court should exercise its discretion to accept the reference;
- Whether the provision of the proposed Bill, asking ‘Should Scotland be an independent country?’, related to reserved matters — specifically (i) the Union of the Kingdoms of Scotland and England (paragraph 1(b) of Schedule 5) and/or (ii) the Parliament of the United Kingdom (paragraph 1(c) of Schedule 5).
The Court’s Reasoning
Jurisdiction: Devolution Issue
The Advocate General for Scotland raised four arguments against the reference being a ‘devolution issue’. The court considered each in turn. On the construction of paragraph 1(f) of Schedule 6, the court held that the words ‘any other question arising by virtue of this Act about reserved matters’ were wide enough to encompass a question about whether proposed legislation related to reserved matters, even before a Bill had been introduced. The court stated:
The terms of paragraph 1(f) are very wide: “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”. When paragraph 1(f) is seen in its context, following paragraph 1(a) to (e), it has the appearance of a sweeping-up provision, designed to supplement the more precise provisions which precede it, so as to ensure that no gap is left.
The court accepted that a reference could not be made under paragraphs 1(f) and 34 after a Bill had been introduced in the Scottish Parliament, as that would render the time limits in section 33(2) nugatory. However, there was no bar to a reference before introduction. The court also rejected the argument that the Lord Advocate should simply answer the question herself, noting that Law Officers are not infallible and that it would be more consistent with the rule of law for an authoritative judicial decision to be obtainable.
Discretion to Accept the Reference
The court acknowledged its inherent discretion to decline references, as exercised in two prior Northern Ireland cases. However, the court found the present circumstances exceptional. The question had already arisen as a matter of practical importance, the Scottish Government intended to introduce the Bill if the court found it within competence, the material provisions would remain in the same form, and the purpose and effect of the provisions were apparent without additional documentation. The court concluded:
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 practical importance.
Does the Bill Relate to Reserved Matters?
The court applied section 29(2)(b) and (3) of the Scotland Act. It reiterated that the phrase ‘relates to’ indicates more than a loose or consequential connection, citing Martin v Most, Imperial Tobacco, and the Continuity Bill case. The court rejected the Lord Advocate’s submission that the Welsh Asbestos case introduced a different ‘direct connection’ test, and clarified that ‘effect in all the circumstances’ in section 29(3) extends beyond purely legal effects to include political consequences.
On the purpose of the Bill, the court held:
The purpose of the Bill is to hold a lawful referendum on the question whether Scotland should become an independent country. 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.
Regarding the effect of a referendum, the court emphasised the political significance of a lawfully held referendum, even one that was advisory and non-self-executing:
A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom Government had not given any political commitment to act upon it. A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.
The court cited the majority in R (Miller) v Secretary of State for Exiting the European Union regarding the 2016 EU referendum:
[T]he referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.
The court found it plain that a Bill making provision for a referendum on independence had more than a loose or consequential connection with both the Union of Scotland and England and the sovereignty of the UK Parliament.
Self-Determination and the Principle of Legality
The Scottish National Party intervened, arguing that the right to self-determination in international law required a narrow reading of ‘relates to’ in section 29(2)(b). The court identified ‘insuperable obstacles’ in this argument. Applying the reasoning of the Supreme Court of Canada in Reference re Secession of Quebec, the court held that the right to self-determination in international law generates a right to external self-determination only in situations of former colonies, foreign military occupation, or where a definable group is denied meaningful access to government. The court stated:
In our view these observations apply with equal force to the position of Scotland and the people of Scotland within the United Kingdom.
Furthermore, the court held that no reading of section 29(2)(b), whether wide or narrow, could result in a breach of the principle of self-determination, since the Scotland Act establishes a carefully calibrated scheme of devolution powers and nothing in that allocation infringes any such principle.
Practical Significance
This judgment definitively establishes that the Scottish Parliament lacks legislative competence to legislate for a referendum on Scottish independence without the authorisation of the UK Parliament, whether through an Order in Council under section 30 or through Westminster legislation. Even an advisory, non-self-executing referendum relates to the reserved matters of the Union and the sovereignty of the UK Parliament. The judgment also clarifies the scope of ‘devolution issue’ under paragraph 1(f) of Schedule 6, confirming that pre-introduction references about reserved matters are possible under paragraph 34. The decision underscores that political effects of legislation are relevant when assessing whether a provision ‘relates to’ a reserved matter under section 29(3).
Verdict: The Supreme Court unanimously held that the provision of the proposed Scottish Independence Referendum Bill, providing for a referendum asking ‘Should Scotland be an independent country?’, does relate to reserved matters — specifically both (i) the Union of the Kingdoms of Scotland and England and (ii) the Parliament of the United Kingdom. Accordingly, the proposed Bill is outside the legislative competence of the Scottish Parliament.
Source: Devolution issues under the Scotland Act 1998, Reference by the Lord Advocate (Rev1) [2022] UKSC 31
