On 23rd November, the UK Supreme Court delivered a unanimous judgment on a Reference by the Lord Advocate concerning whether the Scottish Government could introduce a draft bill legislating for a referendum on Scotland’s independence.
Can’t touch this? “Reserved Matters”
Section 29 of the Scotland Act 1998 states that the Scottish Parliament cannot legislate on “reserved matters”. Schedule 5 defines“reserved matters” so as to include various constitutional issues like the “Union of the Kingdoms of Scotland and England, and “the Parliament of the United Kingdom.” If the Scottish Parliament tries to enact a bill that “relates to reserved matters” this would not be law.
Section 30(2) of the Scotland Act 1998 states that an Order in Council can be made to modify the definition of “reserved matters” under Schedule 5. In 2013, a section 30 Order temporarily modified Schedule 5 of the Act to facilitate holding the 2014 Independence referendum. The Scottish Government wishes to hold another referendum on independence. On 28 June 2022, and for the third time, First Minister Sturgeon requested another s.30 Order. The UK government refused.
On 28 June 2022, the Lord Advocate, Dorothy Bain KC, filed a Reference with the Supreme Court on the provisions of a proposed bill legislating for a consultative referendum on Scotland’s independence. The Reference concerns whether s.2 of the draft bill “relates to reserved matters” and would, accordingly, be outside the Scottish Parliament’s legislative competence. However, before considering the draft bill, the Court addressed two preliminary issues: whether the Reference concerned a “devolution issue” and whether the Court should decline to accept the Reference.
Issue 1: Is the question referred a devolution issue?
To file the Reference, the Lord Advocate relied on para 34, sch.6 of the Scotland Act which states: “he Lord Advocate […] may refer to the Supreme Court any devolution issue that is not the subject of proceedings.”
This provision had not been previously relied upon. Schedule 6 lists what counts as a “devolution issue”. Bain relied on the definition contained in para 1(f) which includes “any other question about whether a function is exercisable within devolved competence or in as regards Scotland and any other question arising by virtue of this Act about reserved matters”.
The Lord Advocate argued that the Supreme Court’s jurisdiction was clear because the References concerned a devolution issue – whether the bill’s provision relates to two “reserved matters”. Bain submitted that – by virtue of the Scotland Act – she has an implicit role to provide legal advice on whether a draft government bill is within competence. Section 31(1) of the Scotland Act requires the person introducing a bill to state that, in his or her view, the bill is within the Scottish Parliament’s competence. The Scottish Ministerial Code requires all government bill to be paired with a statement on competence that is cleared by the Law Officers. In this case, the Lord Advocate was not confident enough that she could provide a statement clearing the draft bill.
Bain argued that the referral procedure under para 34 sch.6 of the Scotland Act exists to allow certain Law Officers to obtain authoritative legal guidance from the Court on aspects of the devolution framework. The wording of sch.6 with respect to “any other question” is framed broadly to allow Law Officers to obtain rulings in unforeseen circumstances like this. She argued that that the discretionary power conferred upon her is supposed to be exercised in accordance with her view of the public interest. In this case, the Lord Advocate clearly thought that it was in the public interest for the Supreme Court to determine whether the draft bill related to a reserved matter. Bain argues that this question of law could not be solved by Parliament and would be otherwise unlikely to be authoritatively resolved.
Counsel on behalf of the Advocate General (the UK government) disputed the grounds for bringing the Reference. Amongst other things, Sir James Eadie KC argued that:
- The question referred did not arise by virtue of the Scotland Act (as required by para. 1(f). The Act does not explicitly require the Lord Advocate to advise ministers on statements of legal competence. This requirement is created by the Scottish Ministerial Code.
- Sections 31 and 33 of the Scotland Act contain a scheme for the legislative scrutiny of bills that would be undercut. It would be surprising if the Parliament had intended to create another procedure that simultaneously enabled References on bills or proposed bills outside that scheme. Other factors support the view that s.33 of the Scotland Act is the only method of scrutinising legislation for legislative competence. These include the definition of devolved issues under para. 1 sch.6which contains no reference to bills or proposed bills.
- Para. 1(f) (ii) should be construed restrictively and in context; it concerns questions relating to certain provisions of the Scotland Act. These include questions about the non-legislative powers of the Scottish Parliament or UK ministers and cross-border authorities. This provision does not concern questions relating to the legislative competence of a bill (covered by s.33).
- The UK Parliament did not intend for the Supreme Court’s time and resources to be consumed by references, especially on straightforward questions that the Lord Advocate is able to answer.
Ultimately the Supreme Court held that the question referred was within its jurisdiction. The Court accepted the submission that the Lord Advocate’s function in clearing bills was established through the Scottish Ministerial Code, though that was beside the point. The relevant issue was whether question referred was about “reserved matters” as required by para. 1(f) sch.6. In this case, these requirements were satisfied. The Court found that the s. 33 referral procedure operates separately to para 34, sch.6. While s. 33 can be used for a bill once it is introduced to the Scottish Parliament (subject to certain time limits and exceptions), it cannot be used to refer a draft bill. By contrast, the procedure under sch.6 para 1(f) and 34 can be used to refer a draft bill. One procedure does not, in this case, undercut the other. The Court also held that sch.6 para.1(f) should be construed in line with the ordinary meaning of the words primarily due to the provision’s breadth, the Supreme Court’s general approach towards interpreting the Scotland Act 1998 in previous cases and the obvious sweeping purpose of provision.
Issue 2: To decline or not to decline?
The Supreme Court then considered whether it should not accept the Reference. Counsel for the Advocate General initially asked the Court to rule on this first. However, the Court refused and chose instead to hear these arguments alongside those relating to the question referred.
The Lord Advocate argued that it was in the public interest that the draft bill be referred to the Court. It would be “contrary to the public interest” if the question referred was not resolved because:
- It concerned “a genuine issue of law” that was disputed, and if unresolved, would have allowed the draft bill to be enacted.
- The Reference concerned an issue of “exceptional public importance”.
- The draft bill was “directly relevant to a central [SNP] manifesto pledge endorsed by the Scottish electorate.”
- There was academic literature and commentary on both sides of the debate as regarded the central issue of the Reference. This issue would have remained unresolved if the Court had declined the Reference.
Counsel on behalf of the Advocate General argued that the Court should decline the Reference because:
- It would not necessarily have allowed the Court to give a determinative answer on the proposed bill. Any bill actually introduced may have been different to the proposed bill. This would have then required a further reference under s.33.
- Even if the bill was introduced in its existing form, it could have then been amended by the Scottish Parliament, leading to the same result.
- Certain issues concerning legislative competence could not be dealt with by the Reference, like whether the proposed bill was incompatible with s.28(7) of the Scotland Act.
- The draft bill was not accompanied by certain policy documents that are required to determine the purpose and effect of legislation.
- The Reference treated the Court like a “legal advice centre”. It did not concern a difficult question of law. Providing legal advice on a straightforward issue of legislative competence was the Lord Advocate’s own responsibility.
It’s for us to answer
The Supreme Court held that it should not decline to accept the Reference. It distinguished between the cases where it had previously turned down references in the context of ordinary litigation, and this Reference which concerned the devolution scheme (where the Court has clear statutory jurisdiction). The Court acknowledged that the central question of the law had “already arisen as a matter of practical importance”. It accepted that its answer to the Lord Advocate’s question had “clear practical consequences” because it determined whether the Scottish Government brought forward the proposed bill. The Scottish Government had indicated that if the proposed bill was cleared by the Supreme Court, it would have introduced the bill. Therefore, the question was “not hypothetical, academic, or premature”. The Court also held that the purpose and effect of the draft bill were clear; they did not need to be supplemented by a policy memorandum or related papers. Finally, the Court acknowledged that the question referred was “not of a routine character”. Given the immense importance of the question referred, the Lord Advocate’s position was “understandable” – it was entirely proper to refer the question to the Supreme Court.
Issue 3: The question referred, section 2 of the draft bill
Finally, the Court was left with the substantive issue: whether section 2 of the draft bill related to a reserved matter. Section 2 made provisions for a consultative referendum on the question: “Should Scotland be an independent Country?” Two reserved matters were of relevance: the “Union of the Kingdoms of Scotland and England” and “Parliament of the United Kingdom”.
The Lord Advocate’s Written Case sets out the arguments both for and against the proposition that s.2 related to these reserved matters. This is consistent with the Law Officers’ role acting in the public interest, though at the Supreme Court hearing itself, Bain represented the Scottish Government’s interests.
On the one hand, the Lord Advocate’s Written Case argued that s.2 of the draft bill did not relate to the Union or to the UK Parliament because:
- The concept “relates to” should be construed restrictively. “Relates to” requires something to have a “direct” and “close” connection to the reservation. The effects of the draft bill would be consequential or indirect.
- The wording of s.2 indicates that the only legally relevant purpose of the referendum was to clarify the wishes of the Scottish people on their future. Any practical effects of the draft bill would be speculative and indirect, and therefore should not be considered.
- The proposed bill has no direct legal consequences. Given that the proposed bill would have established a merely advisory referendum, it would not have any legal effect.
- The draft bill does not purport to “restrict the powers, authority, or jurisdiction of the UK Parliament”. The UK Parliament’s role cannot be changed without its own volition, and certainly not by an advisory referendum.
Conversely, the Lord Advocate’s written case explained why the draft bill’s proposed subject relates to both the Union and the UK Parliament:
- The subject matter of the question in s.2 – whether Scotland should be independent – clearly relates to the Union.
- There is ample background evidence to suggest that the objective purpose of the draft bill is to achieve Scotland’s independence from the UK.
- Statements made during the parliamentary passage of the Scotland Bill indicate that the UK Parliament did not intend to give the Scottish Parliament the power to legislate for a referendum on independence.
- An independence referendum would have enormous political effects on the Union, regardless of the outcome.
Along similar lines, the Advocate General argued that the draft bill clearly related to those reserved matter for various reasons, including that:
- Clause 2 in relates to the Union, regardless of how a referendum’s question is answered, or framed.
- In line with Moohan, Scottish independence is “a matter for the UK Parliament”.
- The legal effects of the draft bill are not legally “nil” because legislation is required to facilitate the conduct of, and financial resources for a referendum. The referendum itself is technically of “no legal effect” because it is not “self-executing”, but this does not mean that a referendum would be “an abstract opinion exercise”.
- If the referendum achieved the result desired by the SNP, it would be used to achieve the termination of the Union.
- Due to the clear purpose and effect of the draft bill, it would have more than a loose or consequential effect on the Union and the UK Parliament.
Although these are fragments of the arguments advanced, the underlying logic is easy to follow.
Unsurprisingly, the Supreme Court decided that the draft bill related to the Union and the UK Parliament. The Court used two questions to answer the Reference: first, what is the scope of the matter reserved, and second whether the provision in question related to a reserved matter, considering “its effect in all the circumstances”. With respect to the scope of “reserved matters”, the scope of the Union is clear. The “reservation” of the UK Parliament was taken to encompass parliamentary sovereignty and by extension, the relationship between Westminster and Holyrood (as established in the Continuity Bill case). The Court held that the purpose of the draft bill – holding an independence referendum – “evidently encompasses the question whether the Union should be terminated”. Such a referendum would inevitably concern “whether Scotland should cease to be subject to the sovereignty” of the UK Parliament. A lawfully held referendum – as envisaged by the draft bill – would “undoubtedly be an important political event.” A “clear outcome” to such a referendum, whichever way that may be, “would possess the authority of a democratic expression of the view of the Scottish electorate”. The result would either strengthening or weakening the legitimacy of the Union. This reasoning is, again, straightforward.
In essence, the Supreme Court held that the Scottish Government cannot lawfully legislate for another referendum without the UK Government’s permission. In the immediate aftermath of the decision, the First Minister, Nicola Sturgeon, accepted the judgment. Despite saying that it was a “hard pill … to swallow”, Sturgeon clarified that the Court “does not make the law”, it only “interprets and applies the law”. This can be contrasted with the less courteous reactions of some UK ministers in the aftermath of another famous unanimous judgment, Miller 2.
Nevertheless, the Supreme Court’s decision on the Reference is not surprising. The Scotland Act is clear about what constitutes a “reserved matter”. It is tenuous to seriously assert that an independence referendum does not relate to the Union or Westminster’s powers over Holyrood. Some might say that the Reference was about political manoeuvring and cultivating a certain public image. But that is nothing to do with the courts. If anything, both Miller 2 and this Reference prove that the law does “not exist in a vacuum”. In both judgments, the Court emphasised that it was concerned purely with a legal question that arose from a loaded factual matrix. Decisions by judges are not political, but they inevitably have political consequences.
Tasneem Ghazi is a first year MPhil/PhD student at UCL Laws. Her research is about on the scrutiny of delegated legislation.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.