REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998

Facts

The Scottish Government proposed a Bill for the Scottish Parliament to provide for a referendum on the question of whether Scotland should be an independent country. The Bill had not been introduced in the Scottish Parliament. The Lord Advocate, who had to decide whether the Bill would be within competence, referred the question to the Supreme Court under the Scotland Act 1998.

History

The matter came directly to the Supreme Court by a reference of the Lord Advocate under paragraph 34 of Schedule 6 to the Scotland Act 1998, and there were no decisions of lower courts.

Issue

Whether the Court had jurisdiction to answer a reference about a Bill that had not been introduced, and whether the provisions of the Bill relate to reserved matters, in particular the Union of the Kingdoms of Scotland and England and the sovereignty of the Parliament of the United Kingdom, and so were outside the legislative competence of the Scottish Parliament.

Held

The reference was competent, and the provisions of the Bill related to reserved matters and would be outside the legislative competence of the Scottish Parliament.

Ratio

• A provision of a Scottish Bill relates to a reserved matter if it has more than a loose or consequential connection with it, judged by its purpose and effect. A Bill providing for a referendum on whether Scotland should become independent has a clear purpose to bring about a political process directed at the end of the Union, and the result would have real legal and political consequences, so it relates to the reserved matters of the Union and the sovereignty of the UK Parliament.

Key reasoning

• The competence of the Scottish Parliament is limited by section 29 of the Scotland Act 1998 and by Schedule 5, which reserves the Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom.
• The question is whether the Bill relates to a reserved matter, which is determined by the purpose of the provision, with regard to its effect in all the circumstances, and the connection must be more than loose or consequential.
• Although the referendum would be advisory and would not itself bring about independence, its purpose was to ascertain the views of the people on the end of the Union and to give a democratic mandate for action, so that it would have a significant effect on the Union.
• The right of peoples to self-determination in international law does not affect the interpretation of the Scotland Act or give the Scottish Parliament legislative competence that the Act does not confer.

Where it fits in the module

In the devolution topics, the case concerns the reserved powers model and the sovereignty of the UK Parliament over the Union. It illustrates how the courts police the boundary between devolved and reserved matters by asking what a provision relates to, and it provides a point of comparison with the approach to competence in Wales under the Government of Wales Act 2006. Questions arise about whether the Union can be treated as a matter for law rather than politics, about the status of an advisory referendum, and about the democratic claim of the Scottish people to decide their own constitutional future.

Criticisms

• By treating an advisory referendum as having more than a loose connection with the Union, the Court made the reserved matters rule wide, so that a vote without legal effect on independence cannot be held, which has been said to place the question of consent beyond democratic means.
• The Court gave little weight to the argument that the principle of self-determination and of democracy supports a vote, and has been accused of treating the Scotland Act as a closed code without considering the constitutional significance of consent.
• The decision relies on the form of the Scotland Act, in which the Union and the sovereignty of the UK Parliament are reserved, and so leaves the political question unresolved and shifts the debate to a settlement outside the courts.