Lindsay McCosh, a Trainee Solicitor in our Litigation team, reflects on the UK Supreme Court decision on a second Scottish independence referendum.
28 November 2022
There is rarely a dull moment in the world of public law. The United Kingdom Supreme Court (UKSC) recently delivered its highly anticipated judgment in relation to the Lord Advocate’s reference on the Scottish Government’s Indyref2 Bill – a decision with critical constitutional and political implications.
The UK and Scottish Government are at an impasse in relation to the granting of an order which would allow the Scottish Parliament to legislate for a second independence referendum. In an attempt to break this deadlock, the Scottish Government published the Scottish Independence Referendum Bill (“the Bill”) in June this year. At the request of the First Minister, the Lord Advocate (the senior law officer of the Scottish Government) made a reference to the UKSC to determine whether the Bill fell within the legislative competence of the Scottish Parliament.
Under section 29(2)(b) of the Scotland Act 1998 (“the Scotland Act”), a provision is outside the Scottish Parliament’s legislative competence (and therefore not law) if it relates to matters reserved to the UK Parliament. Reserved matters include the “Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Schedule 5(1)).
The Advocate General for Scotland (the Scottish law officer of the UK Government) opposed the reference, and raised two preliminary issues: whether the question referred by the Lord Advocate constituted a “devolution issue”, and whether the UKSC should decline to accept the reference in the exercise of its discretion. Additionally, the Scottish National Party intervened in the reference and made written submissions on the right to self-determination in international law and the principle of legality in domestic law. A hearing took place on 11-12 October.
“Does the Scottish Parliament have power to legislate for the holding of a referendum on Scottish independence?”
This is the subject matter of the Lord Advocate’s reference, as reframed by the UKSC in the first paragraph of its judgment.
To answer the reference, the court considered three questions: whether the question referred by the Lord Advocate is a devolution issue, whether the court should accept the reference, and how the question should be answered.
In relation to the first question, the court dismissed the Advocate General’s arguments and held that the question referred is a devolution issue falling within the definition in paragraph 1(f) of Schedule 6 of the Scotland Act. Accordingly, the UKSC has jurisdiction to decide the reference.
In relation to the second question, the court accepted the reference was made to obtain an authoritative ruling on a question of law which has arisen as a matter of practical importance. The UKSC noted that the answer to the question would have practical consequences, as it would determine whether the Bill was introduced into the Scottish Parliament or not. The reference was therefore not hypothetical, academic, or premature. The UKSC accepted the reference.
Finally, the UKSC turned to the question referred, noting that the critical issue was whether the proposed Bill would relate to the Union or the UK Parliament. The Scotland Act provides that the question whether a provision relates to a reserved matter is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances (section 29(3)). In previous cases, the court has held that “relates to” indicates more than a loose or consequential connection.
The court noted that the purpose and effect of legislation in this context may be understood from a consideration of both the purpose of those introducing it and the objective effect of its terms. Additionally, the court held that “effect in all the circumstances” extends beyond purely legal effects.
In applying the test to the proposed Bill, the UKSC held that the purpose of the Bill is to hold a lawful referendum on the question whether Scotland should become an independent country, which evidently encompasses the question as to whether the Union should be terminated and whether Scotland should cease to be subject to the sovereignty of the UK Parliament. Additionally, the court found that a lawful referendum would be an important political event, possessing the authority of a democratic expression of the view of the Scottish electorate. It would therefore have important political consequences relating to the Union and UK Parliament.
The court held that it was clear that a Bill which makes provision for a referendum on independence has more than a loose or consequential connection with the Union and the sovereignty of the UK Parliament, and therefore relates to reserved matters. Accordingly, the Bill is outside the legislative competence of the Scottish Parliament.
The UKSC dismissed the SNP’s submissions on the right to self-determination and the principle of legality, holding that nothing in the allocation of powers under the Scotland Act infringes the principles of self-determination or legality.
In many ways, this was the outcome which was largely expected by constitutional and legal experts. Notably, the judgment was delivered a mere six weeks after the case was heard, both due to its prioritisation by the court as well as the fact that the court’s decision was unanimous. The judgment provides both a clear statement of the law and an unambiguous answer to the Lord Advocate’s reference.
Significantly, in line with its case law on the 2014 referendum on Scottish independence and the 2016 referendum on membership of the European Union, the court recognised the constitutional principle that a lawfully held referendum is not merely “an exercise in public consultation or a survey of public opinion”. Rather, it is a democratic process of great political significance. The court states that: “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.”
This recognition of the democratic and political importance of a lawful referendum makes the finding that the Bill relates to reserved matters seemingly inevitable. As the Bill is outside the legislative competence of the Scottish Parliament, the matter of a second referendum on Scottish independence has swiftly returned to the political arena.
Trainee SolicitorLindsay McCosh