Scotland’s First Minister, Nicola Sturgeon has set out the ‘next steps’ in the campaign for Scotland’s independence, including asking the Lord Advocate for Scotland to make a reference to the UK Supreme Court on whether a draft Scottish Independence Referendum Bill relates to ‘reserved matters’ set out in Schedule 5 of the Scotland Act 1998. This reference brings to a head the question whether – without a section 30 order to expressly give the Scottish Parliament such a competence (as was done for the 2014 referendum) – a new independence referendum would have a sound legal basis.
But whereas many may have assumed that if this matter came before the Supreme Court it would do so via Section 33(1) of the 1998 Act once a Referendum Bill had been passed by the Parliament (but before Royal Assent was granted), the vehicle chosen is the wider power contained in paragraph 34 of Schedule 6 to the Act which allows law officers in Scotland and the UK to refer ‘any devolution issue’ to the Supreme Court.
This post probes the use of the legal avenue chosen to bring the issue to the Supreme Court and whether the Supreme Court might have cause to reflect on whether it should accept the reference.
The Section 33(1) Reference Procedure
It is helpful to recall that a number of cases have arrived at the Supreme Court via references utilising the Section 33 power. Although this power is open to use by Law Officers at UK and devolved levels, it has been the Attorney General that has exercised the power to refer in a number of cases. These cases have concerned Bills passed by the Scottish Parliament which have raised issues as to the extent of the Parliament’s legislative powers. The Supreme Court has found that provisions in the post-Brexit ‘Continuity Bill’ and in Bills to give domestic legal effect to international instruments including the UN Convention on the Rights of the Child have been outside of legislative competence.
The section 33 reference power has been described by the Supreme Court as one of three ‘pre-enactment safeguards’ built into the Scotland Act. The other two are found in section 31. These are the need for the person in charge of a Bill to state that a Bill is within the legislative competence of the Parliament, and the need for the Presiding Officer to give their opinion on whether a Bill is within competence. Together these pre-enactment safeguard provisions are described as being concerned with ‘scrutiny of Bills’: parliamentary scrutiny of what is stated when a Bill is introduced, and judicial scrutiny when a Bill is passed. The question for the Supreme Court will be whether the reference power in Schedule 6 encompasses judicial scrutiny at a pre-legislative stage or whether this represents an avenue of judicial scrutiny not envisaged by the Act.
The Schedule 6 Power
On its face, the power which the Lord Advocate purports to exercise under paragraph 34 of Schedule 6 appears very wide. It simply says that the Law Officers may make a reference on any ‘devolution issue which is not the subject of proceedings’. The context of this is that Schedule 6 deals with proceedings in which devolution issues are raised. So the power in paragraph 34 is intended to allow Law Officers to refer devolution issues outside of other proceedings. It may, therefore, be apt for the use intended by the Lord Advocate. But that is subject to two considerations.
The first is the meaning of a ‘devolution issue’ as set out in paragraph 1 of Schedule 6. Insofar as devolved legislation is a devolution issue, it is clear that this relates only to Acts or provisions of Acts and not to pre-enactment Bills. That leaves open whether the purported or proposed exercise of a ‘function’ by a member of the Scottish Executive is within devolved competence. A ‘function’ includes a power or a duty and could, therefore, encompass the requirement on the person in charge of a Bill to state that it is within competence, especially where the person introducing the Bill is a Scottish Minister. There is also a residual provision in paragraph 1(f) that treats as a devolved issues ‘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 breadth of this could capture the ‘next steps’ proposed by the First Minister leading to an independence referendum.
The second issue, however, is whether the Supreme Court might find reasons not to accept the reference. In the Court’s notice of receipt of the reference from the Lord Advocate it is acknowledged that permission of the Supreme Court is not required for the reference to proceed. But it also notes that ‘preliminary matters’ may need to be addressed by the President of the Supreme Court. One such matter may be whether the route chosen – a reference in advance of the introduction of the Bill – rather than a pre-enactment reference once the Bill is passed is the appropriate way to bring the matter to the Supreme Court.
The Discretion of the Supreme Court on a Reference
The absence of a permission stage does not mean that the Supreme Court is bound to act on a reference. In its February 2020 judgment refusing to accept a reference from the Attorney General for Northern Ireland, the Supreme Court noted that:
This court must retain a discretion whether to deal with a reference on a devolution issue where that issue is to be raised in proceedings where the actual claimed incompatibility of the measure occupies centre stage, as opposed to its appearance via a side wind as here.
It would be difficult to argue that the Lord Advocate’s raising of a competence issue is a ‘side wind’ – it is front and centre. But there may be other reasons why the Court might not wish to exercise its discretion, including whether the more appropriate course of action would be for the Referendum Bill to be enacted and for the issue of competence to become live. In very different circumstances when faced with a private petition, the Scottish Court of Session in the 2021 Keatings case declined a petition on whether potential independence referendum legislation was within devolved competence. The Court of Session found the petition to be hypothetical, academic and premature. The issue for the Supreme Court will be a more challenging one of whether it is right to give an answer to the question posed at a pre-legislative stage as opposed to a subsequent pre-enactment stage.
It would be open to the Supreme Court to conclude that the design of the Scotland Act 1998 assumes that judicial scrutiny of Bills is limited to either pre-enactment scrutiny or post-enactment scrutiny rather being something capable of being pursued at a pre-legislative stage. That would then delay giving an answer to the question raised by the Lord Advocate to a later date. But given the envisaged timetable for a referendum in October 2023, a delayed answer to the issue raised by the Lord Advocate would either delay or derail the referendum and so make the Court’s decision open to scrutiny as the process moved towards the October 2023 target date for the vote.
But even if the Court accepts the reference, there remain important issues of timing. The Supreme Court’s Trinity Term ends on 29 July, affording a highly restricted window within which to conduct hearings before the summer break. Unless the Court decided to hear the parties earlier, it may be that hearings would not be able to be held until the start of Michaelmas Term in October, with a judgment by the end of the year at the earliest. A conclusion at that point that a Referendum Bill was outside of legislative competence would leave the Scottish Government with no obvious legal route to hold an independence referendum other than through a section 30 order. A conclusion that a Bill would be within competence would then leave very limited time to pass the legislation and then hold the referendum by October 2023. There would also be a risk that a further reference could be made either pre- or post-enactment. That possibility might itself incline the Court whether to accept a pre-legislative reference.
What Might the Court Decide if the Reference is Accepted?
The reservations set out in Schedule 5 of the Scotland Act 1998 include ‘the Union of the Kingdoms of Scotland and England’. Section 29 of the 1998 Act makes clear that reserved matters are outside of the legislative competence of the Scottish Parliament. The Supreme Court has stated that the correct approach to the interpretation of the Scotland Act is to interpret it in the same way as other statutes and to give words their ordinary meaning. As the Lord President of the Court of Session noted in the Keatings ruling, legislation ‘relates to’ reserved matters when it has ‘more than a loose or consequential connection to them’. As to whether referendum legislation passed by the Scottish Parliament would ‘relate’ to a reserved matter, the Lord President observed:
Viewed in this way, it may not be too difficult to arrive at a conclusion, but that is a matter, perhaps, for another day
The issue for the Supreme Court is not only what conclusion to arrive at, but also, whether that day comes sooner or later.
Kenneth A. Armstrong is Professor of European Law at the University of Cambridge.
(Suggested citation: K. A. Armstrong, ‘A Matter for Another Day? Will the Supreme Court Accept the Lord Advocate’s Independence Referendum Reference?’, U.K. Const. L. Blog (29th June 2022) (available at https://ukconstitutionallaw.org/))