Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Lloyd-Jones,Lord Sales,Lord Stephens,Lady Rose |
| Judgment Date | 23 November 2022 |
| Neutral Citation | [2022] UKSC 31 |
| Court | Supreme Court (Scotland) |
[2022] UKSC 31
Lord Reed, President
Lord Lloyd-Jones
Lord Sales
Lord Stephens
Lady Rose
Supreme Court
Michaelmas Term
Appellant
Dorothy Bain KC
Tom Hickman KC
Christine O'Neill KC
Paul Reid
(Instructed by Scottish Government Legal Directorate)
Respondent
Sir James Eadie KC
David Johnston KC
Chris Pirie
Christopher Knight
(Instructed by Advocate General (Scotland))
Intervener
Claire Madison Mitchell KC
David Welsh
(Instructed by Livingstone Brown Limited (Glasgow City))
Heard on 11 and 12 October 2022
Lord Reed, Lord Lloyd-Jones, Lord Sales, Lord Stephens AND
Does the Scottish Parliament have power to legislate for the holding of a referendum on Scottish independence? That is the subject-matter of a reference by the Lord Advocate, the senior Law Officer of the Scottish Government, to this court under paragraph 34 of Schedule 6 to the Scotland Act 1998 (“the Scotland Act”), as amended. But the Advocate General for Scotland, the Scottish Law Officer of the United Kingdom Government, has raised two preliminary issues. First, is the question referred by the Lord Advocate a “devolution issue”? If not, it cannot be the subject of a reference under paragraph 34 of Schedule 6. Secondly, even if the question is a devolution issue, should the court nevertheless decline to accept the reference in the exercise of its discretion?
There are accordingly three questions which the court must consider: first, whether the question referred by the Lord Advocate is a devolution issue; secondly, if it is, whether the court should accept the reference; and thirdly, if so, how the question should be answered. It is logical to consider the questions in that order, since if either of the first two questions receives a negative answer, the third question does not arise.
This is the judgment of the court. We begin by explaining the background to the reference (paras 4–11). We then set out the question referred (para 12). We then consider whether the question referred is a devolution issue (paras 13–47). We next consider whether the court should accept the reference (paras 48–54). We then consider how the question should be answered, addressing first the arguments presented by the Lord Advocate (paras 55–83), and then those presented by the Scottish National Party (paras 84–91). The Scottish National Party has exceptionally been permitted to intervene, notwithstanding that it is the party forming the Scottish Government in which the Lord Advocate is a minister, so that the court can consider a wide range of arguments. Finally, we give our answer to the question referred (para 92).
First, the background to the reference should be briefly explained. The Scottish National Party, which is committed to Scottish independence, has formed the Scottish Government since 2007.
In 2013 an Order in Council was made under section 30(2) of the Scotland Act so as to enable the Scottish Parliament to legislate for the holding of a referendum on independence. The Order in Council did so by modifying the definition of reserved matters in Schedule 5 to the Scotland Act. In particular, paragraph 1 of Schedule 5 provides:
“The following aspects of the constitution are reserved matters, that is —
(a) the Crown, including succession to the Crown and a regency,
(b) the Union of the Kingdoms of Scotland and England,
(c) the Parliament of the United Kingdom,
(d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,
(e) the continued existence of the Court of Session as a civil court of first instance and of appeal.”
The Order in Council inserted a new paragraph 5A into Schedule 5, which provided that paragraph 1 did not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if specified requirements were met. Paragraph 5A is no longer in force.
The referendum authorised by the Order in Council was held in 2014, and resulted in a majority vote against independence.
The Scottish Government wishes to hold another referendum on independence. The United Kingdom Government is unwilling to agree to the making of a further Order in Council under section 30(2) at the present time. In those circumstances, the Scottish Government wishes, if possible, to hold a referendum without an Order in Council, and therefore without any modification of the definition of reserved matters in Schedule 5.
Absent legislation by the United Kingdom Parliament, the holding of a referendum requires authorisation by an Act of the Scottish Parliament. The power of the Scottish Parliament to make legislation, described in the Scotland Act as its “legislative competence”, is limited. Section 29(1) of the Scotland Act provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Section 29(2) lists five circumstances in which a provision is outside legislative competence:
“(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
(b) it relates to reserved matters,
(c) it is in breach of the restrictions in Schedule 4,
(d) it is incompatible with any of the Convention rights or in breach of the restriction in section 30A(1),
(e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.”
In relation to section 29(2)(b), as was explained earlier, reserved matters are defined in Schedule 5. Paragraph 1(b) and (c) of that Schedule reserve “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” respectively: see para 5 above. If legislation authorising the holding of a referendum would relate to either or both of those matters, it would accordingly relate to a reserved matter, and be outside the legislative competence of the Scottish Parliament.
Sections 31 to 33 of the Scotland Act provide for the scrutiny of Bills in order to check that they are within legislative competence. It will be necessary to consider these provisions in some detail. For present purposes, it is sufficient to note the terms of section 31(1):
“A person in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament.”
In the case of a Bill introduced by the Scottish Government, paragraph 3.4 of the Scottish Ministerial Code requires that the statement under section 31(1) must have been cleared with the Law Officers.
A Scottish Independence Referendum Bill has been drafted by the Scottish Government. The present reference arises because the Lord Advocate considers that she would be unlikely to have the necessary degree of confidence that the Bill does not relate to a reserved matter to clear a Ministerial statement under section 31(1) that the Bill is within the legislative competence of the Scottish Parliament. Given the importance of the issue to the Scottish Government, the Lord Advocate was requested by the First Minister to consider referring the question whether the Bill would be within the legislative competence of the Scottish Parliament to this court for decision. The Lord Advocate agreed to make such a reference.
The reference has been made under paragraph 34 of Schedule 6 to the Scotland Act, which provides:
“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.”
The question referred is:
“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 (paragraph 1(b) of Schedule 5); and/or (ii) the Parliament of the United Kingdom (paragraph 1(c) of Schedule 5)?”
Only a “devolution issue” can be referred to this court under paragraph 34 of Schedule 6. The expression “devolution issue” is defined by paragraph 1 of Schedule 6. So far as material, paragraph 1 provides:
“In this Schedule ‘devolution issue’ means —
(a) a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament,
(b) a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate,
(c) a question whether the purported or proposed exercise of a function by a member of the Scottish Government is, or would be, within devolved competence,
(d) a question whether a purported or proposed exercise of a function by a member of the Scottish Government is, or would be, incompatible with any of the Convention rights or in breach of the restriction in section 57(4),
(e) a question whether a failure to act by a member of the Scottish Government is incompatible with any of the Convention rights,
(f) any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters.”
The Lord Advocate relies on the final words of paragraph 1(f):
“any other question arising by virtue of this Act about reserved matters.”
She maintains that the...
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