Today the UK Supreme Court delivered its judgment in the reference by the Lord Advocate, the Scottish Government’s senior law officer, to ask the court to determine whether the proposed Scottish Independence Reference Bill is within the legislative competence of the Scottish Parliament.
The Bill makes provision for a referendum on Scottish independence and the key issue the court considered was whether the proposed bill relates to reserved matters i.e. those under the jurisdiction of the UK Parliament.
Having decided that the question referred by the Lord Advocate was a devolution issue and one that the court could accept, the court ruled the bill was outwith the legislative competence of the Scottish Parliament. That means that the Scottish Parliament does not have the power to legislate for a Scottish independence referendum, unless it is granted a Section 30 Order under the Scotland Act 1998 by the UK Government. The decision of the five judges was unanimous, with Lord Reed, President of the Court, providing a brief oral summary, with a detailed written judgment following.
Road to the Supreme Court
Up to now, it has not been clear which legal route would allow for a mechanism to advance the Scottish Government’s manifesto commitment to an independence referendum. In summer 2021, the Scottish Government stated its intention to introduce a bill in the Scottish Parliament to make provision for a referendum on Scottish independence, asking the question: “Should Scotland be an independent country?”.
The First Minister had intended that the referendum be held on 19 October 2023, and that a simple majority in favour of independence would be sufficient to start the process required to move towards independence.
Unlike most cases before the Supreme Court, this is an unusual situation in that the Lord Advocate, Dorothy Bain KC, referred the question for consideration. The Lord Advocate is the senior law officer for Scotland, which is a non-political role. Amongst other functions, the Lord Advocate certifies bills as being within the legislative competence of the Scottish Parliament before these bills are introduced. In this case, the Lord Advocate did not have the necessary confidence that the bill was within legislative competence and so referred it to the Supreme Court for determination.
The case was heard over two days, 11 and 12 October 2022, by a five-judge bench, led by Lord Reed, with Lord Lloyd-Jones, Lord Sales, Lord Stephens, and Lady Rose. The decision today has been issued just six weeks after the hearing – this is a relatively quick turnaround for the court, with Lord Reed confirming that the case had been prioritised over other matters, in recognition of its importance. At the hearing, the Lord Advocate appeared for the Scottish Government, with the Advocate General for Scotland, her counterpart in the UK Government, as respondent. The SNP as a party, not in its role in the Scottish Government, intervened in the case, submitting written pleadings arguing that the bill was competent. The position of the Scottish Government (as represented by the Lord Advocate) was that the referendum would be consultative and not binding, and therefore was within the powers of the Scottish Parliament. The Advocate General, representing the UK Government, argued that it pertains to constitutional law-making, therefore is out with the competence of the Scottish Parliament.
Decision
The Court addressed three questions: firstly, did the reference raise a devolution issue; secondly, if there was a devolution issue should the court accept the reference; and third, how should it determine the question posed.
In response to the first question, the court determined that the reserved matters in this case related to the union of the Kingdoms of Scotland and England and/or the Parliament of the United Kingdom. The Court stated “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”.
The court rejected the Scottish Government’s argument that the referendum would not of itself end the union. The court decided that the effect of any Referendum Bill would not be confined to its legal effect but must take into account its practical effect. The court considered that any bill would have major consequences, for example it would strengthen or weaken both the union and UK Parliament’s sovereignty, depending on the view that prevailed. Accordingly, the court determined that the proposed bill would have more than a loose or consequential connection to reserved matters and so there was a devolution issue to determine.
On question two, the court did not agree that this was a hypothetical or academic question, as suggested by the Advocate General for Scotland. The Court determined it is right and fair that the Lord Advocate can seek from the Supreme Court an authoritative ruling on a point of law in advance of a bill being introduced. The court determined that a genuine question had arisen in this matter, and it was in the public interest that it should be determined. Therefore, it was correct that the court should determine this question and not decline to decide matters.
Finally, on the question of whether the bill fell within the legislative competence of the Scottish Parliament, the unanimous conclusion of the court was that the bill relates to reserved matters (ie it relates to the union of Scotland and England and the Parliament of the UK) and accordingly, in the absence of any modification to the Scotland Act (or a Section 30 Order made by the UK Government) the Scottish Parliament does not have power to legislate for a referendum on Scottish independence.
The Scottish Government will clearly wish to take time to consider this opinion, its future options and where it may wish to go from here given the First Minister’s commitment to holding a referendum in Autumn 2023.
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