Supreme Court rules Holyrood does not have competence to legislate for advisory referendum on Scottish independence
The UK Supreme Court has ruled that the Scottish Parliament does not have the inherent power to legislate for the holding of a referendum on Scottish independence, as such a law would relate to a reserved matter.
A reference to the court was made by the Lord Advocate, Dorothy Bain KC, under Schedule 6 of the Scotland Act 1998, with arguments heard in October 2022. Sir James Eadie KC led the arguments for the Advocate General for Scotland, who sought to have the court decline to accept the reference or alternatively rule that the proposed Bill was outside of legislative competence. An intervention in the case by the Scottish National Party was also permitted, led by Claire Mitchell KC.
The case was considered by Supreme Court President Lord Reed, Lord Lloyd-Jones, Lord Sales, Lord Stephens, and Lady Rose. A single judgment was issued by the five judges, read by Lord Reed.
The reference arose following the drafting of a Scottish Independence Referendum Bill by the Scottish government. Given the importance of the issue to the government, the Lord Advocate was requested by the First Minister to consider referring the question of legislative competence to the Supreme Court. Before the Supreme Court she argued that the question related to a devolution issue per paragraph 34 of Schedule 6 to the 1998 Act.
It was submitted by the Lord Advocate that the question she had referred had arisen in the course of her performance of her function of advising the Scottish government, and was not a hypothetical, academic, or premature. On the competence of the draft bill, she argued that the proposed referendum was wholly advisory and did not take the question of the Union out of Westminster’s hands.
The Lord Advocate further argued that the court was not equipped to engage in speculation about the practical effects of a referendum, and it would be constitutionally inappropriate for it to guess how the United Kingdom Parliament might respond if a referendum resulted in a decision in favour of independence.
For the Advocate General it was said that it was consistent with the Scotland Act that matters in which the whole of the UK had an interest should continue to be the responsibility of the UK Parliament. A referendum on independence would, it was submitted, have more than a loose or consequential connection to the reserved matter of the Union of the Kingdoms of Scotland and England, and the court was entitled to infer that the objective of the Scottish government in introducing the bill would be to achieve independence from the UK.
In its intervention, the SNP argued that the Scottish people were entitled to the right to self-determination, and a narrow reading of the 1998 Act would render a non-self-executing referendum within the competence in accordance with this right. It was submitted that where two possible readings of a statutory provision are available, one of which is compatible with international law, here article 1 of the UN Charter, and the other of which is not, the former should be preferred.
More than loose connection
Lord Reed, delivering the judgment of the court, said of the nature of the question: “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. It is a question on which the Lord Advocate has to advise ministers. The answer to the question will have practical consequences: it will determine whether the proposed bill is introduced into the Scottish Parliament or not. The question is therefore not hypothetical, academic or premature.”
He continued: “We do not consider that the Lord Advocate, in making the reference, is acting other than with a proper sense of her responsibilities. The question referred is not of a routine character. It is understandable that the Lord Advocate should have decided that it should be referred to this court in the public interest.”
Addressing whether the bill related to a reserved matter, Lord Reed observed: “In the present case, two reserved matters are relevant: the Union, and the United Kingdom Parliament. The scope of the reservation of the Union is sufficiently clear for the purposes of this case from its terms: the Union of the Kingdoms of Scotland and England. In relation to the reservation of the United Kingdom Parliament, the reservation ‘encompasses, amongst other matters, the sovereignty of Parliament’. In this case, the purpose which is apparent on the face of the bill is also what the bill is really about.”
He went on to say: “It is plain that a bill which makes provision for a referendum on independence – on ending the Union – has more than a loose or consequential connection with the Union of Scotland and England. That conclusion is fortified when regard is had to the effect of such a referendum. It is not only legal effects that are relevant in the context. A lawfully held referendum would be a political event with political consequences. It is equally plain that a bill which makes provision for a referendum on independence – on ending the sovereignty of the Parliament of the United Kingdom over Scotland - has more than a loose or consequential connection with the sovereignty of that Parliament.”
On the intervener’s argument on self-determination, the court concluded: “The Scotland Act allocates powers between the United Kingdom and Scotland as part of a constitutional settlement. It establishes a carefully calibrated scheme of devolution powers. Nothing in the allocation of powers, however widely or narrowly interpreted, infringes any principle of self-determination. On the contrary, the legislation establishes and promotes a system of devolution founded on principles of subsidiarity. It is now well established that devolution legislation such as the Scotland Act falls to be interpreted like any other statute, subject to the rules of interpretation set by the Act itself.”
The court therefore ruled that the proposed bill did relate to reserved matters, namely the Union of England and Scotland and the Parliament of the United Kingdom.