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In this post, Alan McDonald, Senior Associate in the Disputes team at CMS, previews the decision awaited from the UK Supreme Court in the Reference by the Lord Advocate in relation to the Scottish Independence Referendum Bill. The case will be heard on 11 and 12 October 2022. CMS will run a live blog of the oral arguments.

The Scottish Government (“SG”) intends to hold another referendum on whether Scotland should become an independent country before the end of the current term of the Scottish Parliament. The stated intention is to hold this vote on 19 October 2023. The question of whether there should be a second referendum on this issue is the subject of much political debate and contention.

The legal issue at the centre of this debate is whether the Scottish Parliament can legislate to allow a referendum on Scottish independence to take place, without the consent of the UK Parliament. Schedule 5 of the Scotland Act 1998 (“SA”) contains a list of matters that are reserved to the UK Parliament. These are commonly referred to as ‘reserved matters’. The Scottish Parliament, as a devolved legislature, can legislate for all areas not listed as reserved matters.

Prior to the previous vote on Scottish independence which took place on 18 September 2014 (“the 2014 referendum”), the then SG and the then UK Government had entered into an agreement (“the Edinburgh Agreement”). This provided for a legislative consent order (“LCO”), to be granted by the UK Parliament under Section 30 of the SA, allowing the Scottish Parliament to pass legislation that would permit the referendum. The current SG has submitted a request for a LCO in the same terms but, the current UK Government has refused to grant one.

Under paragraph 34 of Schedule 6 to the SA, the Lord Advocate (who is the chief Law Officer for the SG) has the power to refer a question relating to a ‘devolution issue’ to the UK Supreme Court for determination. Such a reference was filed with the UK Supreme Court (“the Court”) on 28 June 2022 (“the Reference”) in relation to the Scottish Independence Referendum Bill (“the Bill”). Oral submissions will be made to the Court by the Lord Advocate, on behalf of the SG, and the Advocate General, on behalf of the UK Government, on 11 and 12 October 2022.

In this post, we consider the written arguments submitted by the Lord Advocate and the Advocate General. The Court has allowed the Scottish National Party (“SNP”) to enter the proceedings as an intervener, but they have not been granted permission to make oral submissions. The SNP’s written submissions have been published and have also been considered. The Lord Advocate and the Advocate General have until 5 October 2022 to lodge written responses to the SNP’s written case.

The Bill

The Bill itself is eight sections long. The Reference is concerned with Section 2 only. It states as follows:

2 Referendum on Scottish independence
(1) A referendum is to be held in Scotland on a question about the independence of Scotland.
(2) The question is—
“Should Scotland be an independent country?”.
(3) The ballot paper to be used for the purpose of the referendum is to be printed—
(a) in the form set out in Parts 1 and 2 of the schedule, and
(b) according to the directions set out in Part 3 of the schedule.
(4) The date on which the poll at the referendum is to be held is 19 October 2023, unless before then regulations are made under subsection (6).
(5) Subsection (6) applies if the Scottish Ministers consider—
(a) that it is impossible or impracticable for the poll at the                                       referendum to be held on 19 October 2023, or
(b) that it cannot be conducted properly if held on that date.
(6) The Scottish Ministers may by regulations appoint a later date as the date on which the poll at the referendum is to be held.
(7) Regulations under subsection (6)—
(a) may include incidental, supplementary or consequential                                    provision,
(b) may modify any enactment (including this Act), and
(c) are subject to the affirmative procedure.

This section of the Bill is a replica of Section 1 of the Scottish Independence Referendum Act 2013, which provided the framework for the 2014 referendum.

The question referred by the Lord Advocate to the Court

“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) [of the SA]?”

When it was being drafted, it was conceived that the SA would operate on a basis of ‘everything is devolved unless it is reserved.’ If a matter was specifically reserved in Schedule 5 of the SA, then the UK Parliament would have the exclusive right to legislate in these areas.

Items (i) and (ii) of the Reference are specifically listed in Schedule 5 of the SA. The question is whether the Bill treads into these areas and, as such, whether it is out with the legislative competence of the Scottish Parliament.

Preliminary issues dealt with by the Court

Prior to fixing a date for oral submissions, the Advocate General asked the Court to deal with a jurisdictional question. The UK Government submitted that because no bill had been passed by the Scottish Parliament, the current Reference by the Lord Advocate under paragraph 34 of Schedule 6 of the SA is premature.

Paragraph 34 of the SA states as follows:

“The Lord Advocate, the Attorney General, the Advocate General or the Advocate General for Northern Ireland may refer to the Supreme Court any devolution issue which is not the subject of proceedings.”

In the submission of the Advocate General, the question of whether the Bill was within or out with the legislative competence of the Scottish Parliament, and therefore whether there is a ‘devolution issue’, can only arise once a bill has been passed and prior to it being submitted for Royal Assent.

The Court chose not to rule on this jurisdictional question but instead to hear arguments on that point together with submissions on the substantive questions contained in the Reference.

The Lord Advocate’s Case

(i) The jurisdictional point

In her written submissions, the Lord Advocate first seeks to deal with the jurisdictional point raised by the UK Government.

The provisions of paragraph 34 of Schedule 6 of the SA, it is submitted, confer on the Lord Advocate as the chief Law Officer of the SG, the ability to refer the question contained in the Reference to the Court. The other Law Officer is the Solicitor General, deputy to the Lord Advocate. A Minister of the SG must consult the Law Officers before presenting a bill to the Scottish Parliament for consideration.1 The Law Officers must assess whether, as a matter of law, the bill is within the legislative competence of the Scottish Parliament. It is further submitted that “The issue to which this Reference relates therefore “arises by virtue” of the terms and operation of the SA.” 2

The framework provided by paragraph 34 of Schedule 6 of the SA is intended to allow the Law Officers to ask the question seek guidance from the Court in circumstances where it is not clear whether Scottish Parliament has the power to enact the provisions of a particular bill.

The Lord Advocate also addresses the decision of the Inner House of the Court of Session in Keatings v Advocate General.3 That case was raised by a pro-independence campaigner who asked the Court of Session to provide several declarators that the Scottish Parliament was able to legislate for a referendum on Scottish independence. The case was dismissed on the basis that the questions before the Court of Session were academic; no bill had been put before the Scottish Parliament, at that time, that sought to legislate for a referendum on Scottish independence.

The fact that paragraph 34 of Schedule 6 of the SA specifically gives the Lord Advocate the ability to refer any questions relating to a devolution issue to the Court, it is submitted, sets the Reference apart from the observations made by the Inner House in Keating.4

The submissions then move to consider the historical and constitutional context relative to the Reference. A narrative of the history from the Act of Union of 1707 (“the Union”) to the legislative events following the 2014 referendum, and a note on referendums in the UK, is set out.

(ii) The Reference

The Lord Advocate’s written submissions on the question contained in the Reference are split into an analysis of the legal framework of the devolution settlement and the function of the Court within that framework; whether the Reference relates to the Union; whether the Reference relates to the UK Parliament; and what relevance the LCO made in 2013 by the UK Parliament has to the present proceedings.

Section 29 of the SA, which sets out the restrictions on the legislative competence of the Scottish Parliament with reference to the items listed in Schedule 5, is considered. An in-depth consideration of how a bill in the Scottish Parliament may “relate to” a reserved matter, within the statutory context, is set out by the Lord Advocate.5 This analyses the scope and terms of the restrictions placed upon the Scottish Parliament by the SA.

The Lord Advocate submits that the UK constitution is not a specifically reserved matter but that the Union and the UK Parliament are. It is acknowledged that the question contained in the Bill asks whether the voters in Scotland want to remain part of the Union. The intention of the UK Parliament when passing the SA is considered in-depth. Reference is made to statements, made prior to the SA becoming law, that point to the UK Parliament not intending for the Act to allow the Scottish Parliament to pass legislation that would lead to a referendum on Scottish independence.6

It is further noted by the Lord Advocate that for a provision within a bill of the Scottish Parliament to “relate to” a reserved matter it must have “more than a “loose and consequential” connection to that matter”.7 It is accepted by the Lord Advocate that a referendum on Scottish independence has a significant connection to the reserved matter of the Union.

Whilst the intention of the UK Parliament should be considered, the wording of the SA dictates that the “effect” of the wording of a bill must be considered.8 Section 1 of the Bill states that it is intended to ascertain “the views of the people of Scotland”.9 The legal effect of the Bill and a subsequent referendum would not be to immediately alter the status quo of the Union.10 The referendum would be advisory in nature only.11 The UK Parliament would be required to give effect to the result of a ‘Yes’ vote in a referendum. However, the UK Parliament being sovereign, would not be bound to pass such legislation. It could choose to ignore the result though there would doubtless be political ramifications for doing so.

The terms of the LCO granted by the UK Parliament in 2013 are not relevant to the Reference, in the Lord Advocate’s submission. It was the fruit of an agreement by the then Scottish and UK Governments and did not deal with the question contained in the Reference. It is submitted that “the Edinburgh Agreement contains no assertion or concession, express or implied, that absent the making of the [LCO] it would be outside the Scottish Parliament’s legislative competence to pass an Act providing for the holding of a referendum.” 12

The Advocate General’s Case

(i) Jurisdictional point

The Advocate General has maintained the initial position raised by the UK Government in relation to the jurisdiction question, discussed above. It is argued that the Reference is premature and should only have been made after the Bill was passed by the Scottish Parliament and prior to being submitted for Royal Assent. Until that happens there is no genuine question of law for the Court to consider.13 The view of the Inner House in Keatings14 is therefore applicable to the Reference.

The SA must be interpreted in the same way as any other statute. It does not enjoy special status, as has been suggested by some constitutional and political commentators. It must be read with the intention of the UK Parliament in mind. Paragraph 34 of Schedule 6 of the SA was never intended to allow a reference to the Court prior to an Act of the Scottish Parliament being passed.

The Court ultimately has the discretion to reject the Reference without dealing with the substantive question contained within it. The Advocate General has submitted that if the Court agrees with the initial position taken by the UK Government, it should exercise its discretion in this manner.15

(ii) The Reference

The arguments in relation to the jurisdictional point are adopted by the Advocate General in dealing with the substantive question contained in the Reference. It is repeated throughout the written case for the UK Government that the SA must be interpreted in the same way as any other statute. It is submitted that the Reference should be answered in the positive. There is no doubt, in the submission of the Advocate General, that the Bill concerns reserved matters as provided for by the SA. It is clear from the terms of the statute that it relates to a question concerning the Union and the UK Parliament.16

The Advocate General goes on to argue that the scope and purpose of the Bill, whether in whole or in part, are outside the legislative competence of the Scottish Parliament.17 The Scottish Parliament does not have the ability to legislate for a referendum about Scottish independence.18 This is a matter, as it relates to the Union and the UK Parliament, entirely within the legislative purview of the UK Parliament.19

The fact that the referendum proposed by the Bill would not be binding on the UK Parliament is not a relevant consideration. Merely seeking to confirm the view of the Scottish voting population is an electoral exercise relating to the Union and it remains a reserved matter.20

The effect of a ‘Yes’ vote in such a referendum would have an effect on the constitutional settlement of the United Kingdom, though it is acknowledged21 that the referendum would not be self-executing. It is also clear that the subject matter of the Bill has a clear connection to a reserved matter. There is no ambiguity, from the perspective of the UK Government, on that point.22

The SNP’s Case

As noted above, the SNP has been allowed to lodge written submissions with the Court only. The arguments contained in the SNP’s written case are intended, in their submission, to supplement those of the Lord Advocate. They also submit, as the Lord Advocate does, that the answer to the question in the Reference should be answered in the negative (i.e. to legislate in relation to a second referendum on Scottish independence would not concern a reserved matter).

The main focus of the SNP’s submissions is on “the requirement to construe the [SA] in accordance with – rather than contrary to – the right of all peoples to self-determination.” 23

Consideration is given to the operation of the right to self-determination under international law and the recognition of this right by the UK Government in particular circumstances. The submissions also deal with what constitutes “a people” under international law. It is submitted that the people of Scotland are such a people and are entitled to the inalienable right to self-determination.

The submissions conclude as follows:

“Taking all of the above matters into account, it is the respectful submission of the Intervener that:

1. The people of Scotland are ‘a people’ for the purposes of the right to self-determination;
2. The Scottish people are therefore entitled as a matter of law to protection of their right to determine ‘their political status and freely pursue their economic, social and cultural development’;
3. That right is inalienable and cannot be taken away from the Scottish people; and
4. When reaching a determination on the interpretation of the 1998 Act in the circumstances of this reference, there is a strong presumption that an interpretation must be given to the 1998 Act which does not prevent the exercise by the Scottish people of their right nor render it disproportionately difficult for them to do so by, for example, making their right of self-determination conditional or subject to the approval of another ‘people’. The leaders of the Conservative and Labour parties at Westminster have made clear they will not countenance a referendum on Scottish independence under any circumstances. Regardless of the outcome of any subsequent general election to the UK Parliament, the people of Scotland’s right to self-determination cannot be advanced through that legislature.” 24

The submissions deal with points that sit outside the issues considered by the Lord Advocate and the Advocate General. The conclusion also appears to suggest that the UK Parliament can be bypassed in circumstances where it refuses to act on a wish or want expressed by the Scottish electorate following an election. The Reference is not concerned with that question but instead with whether the SA prevents the Scottish Parliament from passing the Bill in its current form.

Comment

Regardless of how the Court resolves the Reference, the constitutional and political ramifications for Scotland and the rest of the United Kingdom should not be underestimated. The political debate regarding Scottish independence will continue whatever their Lordships decide.

Answering the Reference in the positive will mean that the SG is forced to look at other means of progressing its stated policy aim of achieving Scottish independence. Without a LCO from the UK Government this means that a new political strategy will likely be required. An answer in the negative (in other words that the Bill does not relate to reserved matters) would allow a referendum on Scotland’s independence to be held but it would not immediately give rise to Scotland becoming an independent nation.
Whichever way it goes, the Court’s determination will provide legal clarity in relation to the question of whether it is within or out with the Scottish Parliament’s power to legislate for second referendum of Scottish independence.

  1. Paras 13-14 of the Lord Advocate’s Written Case, Scottish Ministerial Code, para 3.4
  2. Para 15 of the Lord Advocate’s Written Case
  3. 2021 SC 329
  4. Paras 26-31 of the Lord Advocate’s Written Case
  5. Paras 88 to 98 of the Lord Advocate’s Written Case
  6. Para 107 of the Lord Advocate’s Written Case
  7. Para 108 of the Lord Advocate’s Written Case, Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40 at para 49, Imperial Tobacco v Lord Advocate [2012] UKSC 61; 2013 SC (UKSC) 153 at para 16, UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64; 2019 SC (UKSC) 13 at para 27, Paras 92-96 of the Lord Advocate’s Written Case, supra
  8. Paras 110-112, 115-117, and 121 of the Lord Advocate’s Written Case
  9. Para 119 of the Lord Advocate’s Written Case
  10. Para 121 of the Lord Advocate’s Written Case, supra
  11. Para 126 and 129 of the Lord Advocate’s Written Case
  12. Para 45 of the Lord Advocate’s Written Case
  13. Para 28 of the Advocate General’s Written Case
  14. 2021 SC 329 at para 60, supra, para 25 of the Advocate General’s Written Case
  15. Para 46 of the Advocate General’s Written Case
  16. Paras 57-59 of the Advocate General’s Written Case
  17. Paras 60-67 of the Advocate General’s Written Case
  18. Para 69 of the Advocate General’s Written Case
  19. Para 71 of the Advocate General’s Written Case
  20. Para 73 of the Advocate General’s Written Case
  21. Paras 79 and 81 of the Advocate General’s Written Case
  22. Paras 80 and 82 of the Advocate General’s Written Case
  23. Para 2.1 of the SNP’s Written Case
  24. Para 8.1 of the SNP’s Written Case