Scotland decides (with the UK’s permission)

Scotland decides (with the UK’s permission)

By Edward St Aubyn

Background:

This case considered the legal issues of a devolved government holding a referendum without the consent of Parliament in Westminster. The case was put before the Supreme Court (UKSC) at first instance. It centred around two “reserved matters” under Schedule 5 of the Scotland Act 1998 (‘the Scotland Act’): the Union and Parliament. Under the Scotland Act, only the UK government may introduce legislation that “relates to” these areas. 

To safeguard this, certain protections within the Scotland Act exist:

1. Section 31(1) requires the minister introducing a bill to declare that none of its provisions encroach on reserved matters;
2. Section 33 permits any Law Officer (the Advocate General, the Lord Advocate or the Attorney General) to refer the question of whether a Bill is within the legislative competence of the Scottish Parliament to the Supreme Court; and,
3. Schedule 6, paragraph 34 allows any Law Officer to refer to the UKSC any “devolution issue” which is not the subject of proceedings.

A reference by the Lord Advocate, senior Law Officer of the Scottish Government, was made under paragraph 34 of Schedule 6. The subject-matter of the reference was this: “does the Scottish Parliament have power to legislate for the holding of a referendum on Scottish independence?” It sought clarification on the legality of the Scottish Government’s upcoming ‘Scotland Independence Referendum Bill (‘the Bill’). The Lord Advocate argued an advisory referendum did not relate to reserved matters. 

The UK’s Advocate General responded with two of its own references. The first contested if the Bill actually raised any devolution issue. The second argued the court should use its discretion to refuse the referral.

To determine each one, the UKSC considered them in this order:

1. Whether the question put forward was a devolution issue? (UK govt)
2. If it is, should the court refuse to accept the referral? (UK Govt)
3. If not, does the Scottish Parliament have power to legislate for the holding of a referendum on Scottish independence? (Scot govt)

• Is the question referred a devolution issue?

The Advocate General made four submissions arguing it was not a “devolution issue” because:

1. The referral did not arise by virtue of this Act, but by virtue of the Scottish Ministerial Code (‘the Code’);
2. The scheme of legislative scrutiny established under s33 would be undermined;
3. Paragraph 1(f) should be narrowly interpreted;
4. There should be no power for the Lord Advocate to refer questions which they can answer.

Submission 1: the referral does not arise by virtue of this Act

Under schedule 6, paragraph 34 only devolution issues may be referred to the UKSC. The Lord Advocate relied upon paragraph 1(f) of schedule 6 which states a ‘devolution issue’ means:

“1(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 submitted her referral arose in her performance of duties under the Code to advise ministers in relation to statements made under section 31(1). Accordingly, the Advocate General contested no devolution issue was raised, as the referral arose by virtue of the Code, not the Scotland Act. 

UKSC’s conclusions (para 16): this was rejected by the UKSC. Ultimately, a question “arising by virtue of this Act” does not depend on the Scotland Act’s provisions regarding the Lord Advocate, but “whether the provisions of a Bill would be within the legislative competence of the Scottish Parliament.” As long as the question pertains to a reserved matter, the Lord Advocate is entitled to refer it to the UKSC under schedule 6, paragraph 34.

Submission 2: Parliament only intended one scheme of referral 

The Advocate General submitted Section 33 creates the only scheme for the Law Officers to refer a Bill to the UKSC before Royal Assent. To support this, the Advocate General argued:

1. Parliament did not intend for schedule 6 to be used after a bill was introduced in the Scottish Parliament, yet the Lord Advocate’s analysis suggests this is possible;
2. A bifurcation of issues on the same Bill may arise, as a schedule 6 referral can only be made on reserved matters, whereas other s29(2) matters may only be referred under section 33; and, 
3. The terms of an Act might differ from those of a Bill referred under schedule 6. Consequentially, a further reference under section 33 would arise. This creates an unintended burden on the courts.

UKSC’s conclusions (paras 22-26): the UKSC offered guidance on when a section 33 and schedule 6 referral can be made. They accepted schedule 6 references were not available after a Bill is introduced into parliament. They also noted the time limits imposed on a section 33 referral indicate it may only be used after a bill is introduced. They concluded this implied a schedule 6 reference could be made before a Bill was introduced. 

Addressing the bifurcation and litigation points simultaneously, the UKSC conceded the possibility of consecutive references raising different issues in relation to the same Bill. However, they highlighted the UKSC’s discretionary powers as a mechanism to negate both issues. Other submissions on this point were summarily dismissed as “less cogent”.

Submission 3: Schedule 6, paragraph 1(f) should be construed differently

The Advocate General submitted “any other question” in schedule 6 paragraph 1(f) should be construed as any question not covered by the preceding provisions in paragraphs 1(a) to 1(e). 

UKSC’s conclusions (para 42): the court dismissed this, stating schedule 6 paragraph 1(f) was a sweep up clause, as legislation must be construed according to its “ordinary meaning” to ensure statute is “constant and predictable” (Imperial Tobacco [2012] UKSC 6, para 14). Further reasons included the clause’s impact on enhancing justiciability, and its purpose.

Submission 4: why should there be a power to refer questions which the Lord Advocate is able to answer?

The final submission struck a more pugnacious tone. It argued proceedings were a waste of time. As a legal professional, the Lord Advocate should realise the Bill clearly engaged reserved matters. 

UKSC’s conclusions (para 46): the UKSC concluded the specific matter before the court was undecided, and Law Officers are not infallible. Although not mentioned by the court, rejecting a reference on this basis might also discourage justiciability on devolution issues. Thus the submission was rejected.

• Should the court refuse to accept the referral?

The Advocate General submitted that where future events may distort facts before the court, a referral must be rejected. This follows the general approach of the courts not to “enunciate propositions of principle without full appreciation of the implications these will have in practice” (R (Burke) v General Medical Council [2006] QB 273, para 21).

In the present case, the Bill’s provisions might be changed before its introduction into the Scottish Parliament or during the legislative process, and the current bill contained no policy documents that might be used to identify its purpose or effect. On this basis, the referral should be rejected.

UKSC’s conclusions (para 53): The UKSC conceded these arguments were “compelling”, but only regarding cases of ordinary litigation. The question was of practical importance, as it determined if the Bill was introduced. The Lord Advocate also gave assurances the relevant provisions of the Bill would not be materially changed during its passage through the Scottish Parliament. On this basis, the UKSC rejected the submission.

• Does the Scottish Parliament have power to legislate for the holding of a referendum on Scottish independence?

The Lord Advocate made four submissions arguing the Bill did not relate to reserved matters in Schedule 5, as:

1. The Bill only facilitated an advisory referendum. This differs from a “self-executing” referendum, as its result is not legally binding. This has no legal effect, so Parliament’s sovereignty and the Union would not be compromised.
2. The wording “relates to” in s29(2)(b) means a “close connection” is needed between the effect of the Bill and the reserved matter (Lord Mance in Welsh Asbestos, [2015] UKSC 3, para 27). An advisory referendum has no such effect on reserved matters.
3. The Bill’s wording must be given its “ordinary meaning” under rules of statutory interpretation to ascertain its purpose. As the stated purpose of the Bill is to “ascertain the views of the Scottish people”, its purpose does not relate to a reserved matter.
4. The other effects of the Bill were undecided, so any discussion of this is speculative. Only the direct legal effect can be considered.

UKSC’s conclusions (paras 70-83): The court first clarified the meaning of section 29(2)(b) regarding the phrase “relates to”. This requires the provision to have more than a “loose or consequential” connection to the reserved matter (Martin v Most, para 49; Imperial Tobacco, para 16; and In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64, para 27). The Lord Advocate’s second submission was thus rejected as an advisory referendum’s effect did have more than a loose connection to the Union or the UK Parliament.

The court then considered s29(3), which requires the court to assess “the purpose of the provision, having regard (among other things) to its effect in all the circumstances.” This is only achievable by considering “both the purpose of those introducing it and the objective effect of its terms” (Agricultural Bill, [2014] UKSC 43, para 54). On this basis, the third submission was rejected as it conjured a false analogy. Purposive interpretation of statute differed to the interpretative exercise required by s29(3).

The final submission was also rejected as the UKSC noted the “effect in all the circumstances” – not just its legal effect – must be considered (para 74). Moreover, a provision does not have to modify the law to effect a reserved matter (Christian Institute v Lord Advocate [2016] UKSC 51, paras 33 & 63). This approach was followed recently, where the court referred to the “legal and practical effects of the Bill” (Agricultural Bill, para 53).

After establishing these points of law, the UKSC reapplied the structured test of Imperial Tobacco, para 26 to the facts:

1. What are the relevant reserved matters? Already identified as the Union and UK Parliament.
2. With reference to the purpose of the provision and its effect in all the circumstances, does the provision relate to a reserved mater?

The UKSC stated the Bill’s purpose was clear: a lawful referendum on the question whether Scotland should become an independent country. That question “evidently encompasses” the Union and Parliament’s sovereignty. 

The effect was also clear: a referendum would have significant political ramifications for the Union and Parliament. In making this point, the UKSC identified:

1. The lengthy statutory process required for a referendum was indicative of its political significance.
2. A legislative framework would likely follow the referendum result, again indicating its significant effect on the Union and Parliament.
3. Within a “constitution and political culture founded upon democracy”, democratic expression via an advisory referendum would compromise the democratic legitimacy of Union and the sovereignty of Parliament.

On this basis, the UKSC concluded the Bill did relate to the Union and the UK Parliament.

SNP submissions: self-determination and the principle of legality.

Finally, the court considered arguments put forward by the SNP. They submitted the Scottish Government had a right to self-determination in international law and the principle of legality would be compromised if a referendum was not permitted. This was based on the UK Government being signatories to the International Convention on Economic, Social and Cultural Rights (1966) and the International Covenant on Civil and Political Rights (1966).

UKSC’s conclusions (paras 86-91): The submissions were summarily dismissed. A right to self-determination only exists “in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.” (Reference re Secession of Quebec [1998] 2 SCR 217, para 138). The present facts engaged none of these scenarios.

Further, any compromise of the principle of legality was not at issue here, as the Scotland Act “allocates powers between the United Kingdom and Scotland as part of a constitutional settlement” (Judgement, para 90). This legal framework provided a legal basis for rejecting the Bill, thus the legality principle was upheld.

Commentary: the conclusions of the court were unsurprising. Nothing in the judgement altered the current standing of the law on devolved matters. It means that the Scottish Government cannot legally call a referendum without the consent of the UK Government. 

Despite this, the judgement did offer useful guidance on what can arise by virtue of devolution settlements across the UK; the application of schedule 6 and section 33 referrals during the devolved legislative process; and how statute is purposively construed. More significantly, the court also reaffirmed the position of the Law Officers who may begin referral proceedings against any devolved government. Whilst these cannot be frivolous or vexatious, it does invite more litigation in the area.

From a political perspective, the case reflects a clear strategy put in place by the SNP. Litigation, litigation, litigation. By goading the UK government with garish legislation, the SNP are using the courts as a political theatre to air independence grievances. This was evident in 2021, where Scottish Government legislation incorporating the UN’s Convention on the Rights of the Child contained provisions that went beyond its Parliament’s legislative competency under the Scotland Act. The bill was about children’s human rights, such as the right to education and protection from exploitation. Through inciting emotive topics through litigation, the SNP hope to boost support for independence. 

Similarly, the Legal Continuity case exacerbated tensions over Brexit, as the legislation attempted to curtail the UK’s legislative divergence from the EU. Again, this provoked pro-EU sentiment and reminded Scottish voters that the UK will continue to cramp Scotland’s style around the EU’s European project.

In the present judgement, Scottish independence was front and centre. The SNP can now argue it lays bare the limitations of the devolution settlement. This is strong political ammunition against a constitutional framework it is now legally locked into. To this tune, the Scottish independence drums beat.

Legislation

The Scotland Act 1998

Cases

Imperial Tobacco v Lord Advocate [2012] UKSC 6

R (Burke) v General Medical Council [2006] QB 273

Welsh Asbestos, [2015] UKSC 3

Martin v Most [2010] UKSC 10

In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64

Agricultural Bill, [2014] UKSC 43

Christian Institute v Lord Advocate [2016] UKSC 51

Reference re Secession of Quebec [1998] 2 SCR 217