Yesterday (28 June 2022) Nicola Sturgeon, the First Minister of Scotland, set out a “route map” to holding a second referendum on the question of Scottish independence.

This Insight looks at what the Scottish Government is proposing and related legal issues.

The Scottish Government’s plan

At the request of the First Minister, the Lord Advocate (the principal legal adviser to the Scottish Government) has referred the question of whether a draft Independence Referendum Bill would “relate to” reserved matters to the Supreme Court.

The UK Government says the legal power to hold an independence referendum is a matter “reserved” to Westminster, while the Scottish Government believes it could fall within devolved competence.

In a letter to UK Prime Minister Boris Johnson, Nicola Sturgeon said despite this reference, she stood “ready to negotiate the terms of a section 30 order” with the UK Government. A s 30 Order was the legislative means by which competence to hold the 2014 independence referendum was temporarily devolved to the Scottish Parliament.

If there is no agreement on a s 30 Order and the Supreme Court decides the draft Bill isn’t within Holyrood’s powers (something Ms Sturgeon said would “be the fault of the Westminster legislation, not the court”), the First Minister announced the SNP would fight the next UK general election as a “de facto” referendum on the “single question” of whether Scotland should be independent.

Ms Sturgeon later told the BBC that if “a majority of people vote for that proposition” then it would constitute a “yes” vote. At the 2015 UK general election, the SNP won 49.97% of the vote in Scotland, 36.9% in 2017 and 45% in 2019. Other parties support independence.

Even if achieved, a general election result would be a means of applying political pressure on the UK Government to legislate for independence rather than a recognised legal route.

Boris Johnson said he would “carefully study the details” of the Scottish Government’s proposals.

Supreme Court reference

The reference to the Supreme Court is possible under Schedule 6 of the Scotland Act 1998 (“the 1998 Act”). Paragraph 34 states the Lord Advocate “may refer to the Supreme Court any devolution issue which is not the subject of proceedings”. Para 1(f) defines “devolution issue” (among other things) as:

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.

This could be viewed as a pre-emptive move by the Scottish Government. Constitutional experts had anticipated an independence referendum bill would complete its consideration at Holyrood before being referred to the Supreme Court, most likely by UK Government law officers (under s 33 of the 1998 Act), or by private litigants via judicial review.

In a statement, the Supreme Court confirmed receipt of the reference and said the “first step” would be for the court’s President, Lord Reed of Allermuir, to address any “preliminary matters”, decide when the case would be “listed” (heard) and how many Justices would consider the reference and sit on the bench.

Precedents suggest courts dislike “hypothetical” references. In this case, the Supreme Court is being asked to consider a Bill which has not yet been introduced to the Scottish Parliament. Kenneth Armstrong, a constitutional academic at the University of Cambridge, believes there “is a risk that it [the Supreme Court] takes the view that the Scottish parliament needs to first pass the bill so that the issue is not simply hypothetical or advisory”.

If that happens, then the Scottish Government’s proposed Bill would need to be certified by the Lord Advocate before it could be introduced to the Scottish Parliament.

The Scotland Act 1998

If the Supreme Court does decide the reference is valid, it will consider the competence of the proposed legislation by looking at the Scotland Act 1998 and relevant case law.

Under section 29(1) of the 1998 Act, Acts of the Scottish Parliament that fall outwith its legislative competence (or powers) are “not law”. An Act (or a provision thereof) is beyond competence so far as it “relates to reserved matters”. Reserved matters are set out in Schedule 5, Part 1 of which reserves “aspects of the constitution” to Westminster. This includes, among other things, “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom”.

The 1998 Act provides a set of principles to assist the courts when approaching questions of competence (“devolution issues”). Whether a provision of an Act “relates to” a reserved matter is to be determined “by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances” (s 29(3)). Section 101 states in interpreting Acts of the Scottish Parliament, provisions are “to be read as narrowly as is required for it to be within competence, if such a reading is possible”.

In the 2010 case of Martin v Her Majesty’s Advocate, Lord Walker was clear a provision had to possess “more than a loose or consequential connection” to a reserved matter in order to “relate to” it. The 2012 Imperial Tobacco Ltd v Lord Advocate judgment and subsequent case law (the 2018 Scottish Continuity Bill case and two further references in 2021), meanwhile, were clear the 1998 Act ought to be interpreted on the basis of a “plain reading” of its words.

The first Miller case of January 2017 also observed that while the Brexit referendum of 2016 did not result in the UK’s legal departure from the European Union, this “in no way” meant it was “devoid of effect”, having “shown itself to be of great political significance”.

Independence Referendum Bill

If the Supreme Court decides that draft referendum legislation would be within the Scottish Parliament’s powers, the First Minister said her government would “immediately introduce” the Bill and ask Holyrood to pass it “on a timescale that allows the referendum to proceed on 19 October next year”.

The preamble of the draft Bill describes it as an Act “to make provision for the holding of a referendum in Scotland on a question about the independence of Scotland”. Clause 1 states its “purpose” is “to make provision for ascertaining the views of the people of Scotland on whether Scotland should be an independent country”.

This “purpose clause” did not form part of a draft Bill published last year but supports the First Minister’s contention that the referendum proposed in the Bill would be “consultative, not self-executing”, as in 2014.

Clause 2(2) of the draft Bill states the question to be asked (subject to Electoral Commission approval) is “Should Scotland be an independent country?” and Clause 2(4) that the referendum date is to be 19 October 2023.

Further reading

About the author: David Torrance is a researcher at the House of Commons Library, specialising in devolution and the constitution.

Image: Exterior, Supreme Court of the United Kingdom by Christine Smith, under CC BY-SA 4.0 via Wikimedia Commons

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