On 28 June 2022 the First Minister provided an update to the Scottish Parliament on the Scottish Government’s route map to a second independence referendum. In a debate characterised by entrenched positions and seeming impasse, those plans caused some surprise. First, and whilst stressing her preference to legislate for a referendum on the basis of a section 30 order, the First Minister revealed that she had invited the Lord Advocate to make use of the direct reference procedure in paragraph 34 of schedule 6 to the Scotland Act 1998 as a means to resolve the still open question as to whether or not the question contained in the proposed Scottish Independence Referendum Bill – ‘should Scotland be an independent country’ – relates to reserved matters. In response, the Advocate General for Scotland has confirmed that he will join as a formal party to the case and has argued that the reference is premature pending the introduction and passage of a bill, at which point legislative competence ought to be tested via the pre-enactment reference procedure set out in section 33 of the Scotland Act 1998. Second, the First Minister said that if the reference is unsuccessful she will not seek to introduce the bill but would instead seek a democratic mandate to initiate independence negotiations by securing a majority of pro-independence votes across Scottish constituencies at the next UK General Election.

In this post I do not intend to address directly arguments about whether or not the Lord Advocate’s reference falls within the scope of the direct reference procedure, nor the substance of the arguments about where the power to legislate for a referendum lies or whether a general election is capable of authorising the Scottish Government to initiate independence negotiations with the UK. Rather, I want to address a prior issue: how we got to the point of using the direct reference procedure – the first such reference – in this way and whether the current position is a satisfactory one. More specifically, I want to address the Scottish Government’s Law Officers’ role in vetting bills for legislative competence. My argument will be that – as currently exercised – this creates an unnecessary de facto veto on the introduction of legislation but, in addition, that another, more permissive, approach is both possible and preferable.

The pre-introduction role of the Lord Advocate

In common with primary legislation enacted by the Senedd and the Northern Ireland Assembly, Acts of the Scottish Parliament (ASPs) do not enjoy the trappings of legislative sovereignty. There are laws that the Scottish Parliament can neither make nor unmake (set out in section 29 and Schedules 4 and 5 of the Scotland Act 1998) and the courts can strike down (and have struck down) ASPs that exceed the parliament’s legislative competence. In order to provide legal certainty and to protect against judicial censure, the Scotland Act 1998 provides for a number of checks on bills for legislative competence during the legislative process. 

First, upon the introduction of a bill into the Scottish Parliament both the Minister responsible for the bill and (separately) the Presiding Officer must make statements of legislative competence (section 31). Whilst the Presiding Officer merely offers a view about legislative competence (a negative statement of competence by the Presiding Officer is not a veto on the introduction of legislation – though it might signal significant concerns and raise the likelihood of a legal challenge), the responsible Minister cannot introduce legislation that, in their view, would not be within the legislative competence of the Scottish Parliament. In making that statement the Minister is supported by the advice of the Scottish Government Legal Directorate (SGLD) in the policy formulation and bill drafting stages and, in accordance with section 3.4 of the Scottish Ministerial Code, must ‘clear’ their statement on competence with the Scottish Government’s Law Officers (the Lord Advocate and the Solicitor General). In interview-based research that I have conducted with Janet Hiebert, we were told that Scottish Ministers, even where they are unhappy as a result, will not push back against the advice of their Law Officers (that ‘when the Lord Advocate reaches a view that is the end of the matter’).

Second, when a bill has completed its parliamentary stages, and if doubts about legislative competence remain, both the Scottish Government and/or the UK Government Law Officers may refer a bill to the Supreme Court during a four week period that otherwise will end with the bill receiving Royal Assent (section 33). In Scotland, while three bills have been referred to the Supreme Court by the UK Government’s Law Officers, there have been no pre-enactment references made by the Scottish Government’s Law Officers. Janet and I were told that an own-initiative reference had never seriously been contemplated: on the one hand, because of the risk inherent in any such litigation strategy; on the other hand, because for Scottish Ministers (and particularly for nationalist incumbents) the prospect of asking the United Kingdom Supreme Court for ‘permission’ to legislate, or to ‘save’ its legislation, might be difficult to stomach.   

So, how did we get here?

Within the published reference terms is an on the record acknowledgment of what might otherwise have reasonably been inferred: that the Scottish Government’s Law Officers ‘[do] not have the necessary degree of confidence’ to ‘clear’ a positive statement of competence by the responsible Minister about the referendum bill. From this, we might draw two important conclusions. First, that the usual – highly deferential – response by Scottish Ministers to a negative view about competence by the Scottish Government’s Law Officers has not applied in these particular circumstances. Rather, it is clear that dialogue has continued, despite the Scottish Government’s Law Officers’ doubts, in order to exhaust possibilities for the introduction of a bill. Second, that – this more dialogic approach notwithstanding – the view of Scottish Ministers continues to be that a bill cannot be introduced where the Scottish Government’s Law Officers, on the balance of probabilities (or by whatever test particular law officers might apply), are not persuaded to concede to the responsible Minister the benefit of the doubt. Only an affirmative decision by the Supreme Court prior to introduction, it seems, will be enough to persuade the Scottish Government’s Law Officers to ‘clear’ a statement of competence about the proposed Independence Referendum Bill and so to enable the bill’s introduction.

Leaving aside the procedural and substantive arguments that underpin this particular reference, in my view the pre-introduction role of the Scottish Government’s Law Officers in vetting bills for legislative competence, as currently understood, is problematic. This is because it creates a de facto, and – one assumes – non-justiciable, veto on the introduction of legislation that forms no part of the statutory scheme: one that I argue is out of step with the nature of section 31 statements and that is unnecessary in light of the Scottish Government’s Law Officers’ statutory role regarding legislative competence.

The political nature of section 31 statements

In A v Scottish Ministers [2003] 2 AC 602, Lord Slynn described section 31 statements as ‘important…safeguards…in practice’ but ‘no more than statements of opinion which do not bind the judiciary’ (at [7]). Similarly, in Imperial Tobacco v Lord Advocate [2012] UKSC 61, Lord Hope stressed the nature of the legislative vetting process. ‘[T]here is no presumption of legislative competence,’ he said, ‘from the fact that an objection [to legislative competence] has not been raised by the Presiding Officer or any of the Law Officers’. Rather, he continued, ‘[i]f an issue as to legislative competence is raised, it will be entirely a matter for the court to determine’ (at [7]). That the effects of the section 31 statements are political rather than legal can therefore be drawn both from the statutory scheme itself – that the duty is placed in the hands of political actors, the responsible Minister and, concurrently, the Presiding Officer, albeit exercised on the basis of legal advice – and from the interpretation of those checks given by the courts – that they are expressions of a view with no bearing on the legal determination to be made, if necessary, by the courts. It therefore seems out of step with the statutory scheme that political actors (i.e. Scottish Ministers) should be denied, or should deny to themselves, the opportunity to take measured political risks, where they are minded to make a positive statement of legislative competence, on the basis of a statable case, taking into account, amongst other relevant considerations, the legal advice offered to them by SGLD and by the Scottish Government’s Law Officers, and confronting both the political (e.g. potential parliamentary defeat or the resignation of their Law Officers) and legal (e.g. a potential pre-enactment reference or post-enactment legal challenge) costs of doing so. Indeed, if the current reference is rejected then it would create a catch-22 situation whereby the route to achieving legal certainty, where certainty is needed, and to developing the law of devolution by testing and consolidating the boundaries of legislative competence, is fundamentally undermined. A position, this is to say, from which certain questions about legislative competence potentially could never be resolved, certain policy options never tested, because the Scottish Government’s Law Officers lack sufficient clarity to ‘clear’ a positive statement of competence, even where there is political appetite to do so in an area of genuine doubt or reasonable disagreement, meaning no bill can be introduced and made subject to a section 33 reference.   

A new approach to section 33

I am arguing, then, for a reinterpretation – maybe a rewording – of section 3.4 of the Scottish Ministerial Code that strikes the balance differently between legal and political tolerance of risk. This approach would ask not whether the Scottish Government’s Law Officers agree with a Minister minded to make a positive section 31 statement of competence but whether they can agree to such a statement where the political assessment (and, in some cases, the political risk) rests on a statable case and where legal advice has been given due weight as a significant, but not necessarily the only, relevant consideration. Such an approach would, in my view, correspond with the political nature of the section 31 statements; better reflect the locus of the relevant statutory duties and powers (a duty on the Minister (and the Presiding Officer) in section 31 and a power of the Scottish Government’s (and UK Government’s) Law Officers in section 33); and, ensure that the legislative function of the Scottish Parliament is not excluded by a process that plays out between executive and courts. Where there is significant doubt about legislative competence but where the Minister is minded to make a positive statement, the tolerance of risk might be mitigated in a number of ways: by the concurrent statement of competence by the Presiding Officer; by addition of reasons to the statement of competence (a practice that the Llywydd has developed in Wales where the case for competence is very finely balanced) in order that the Scottish Parliament is able to conduct informed scrutiny; by a statement to the chamber by the Lord Advocate outlining their position and perhaps signposting the opportunity to remove doubt at a later stage with a section 33 reference; or simply by a more assertive approach to making own-initiative references at the pre-enactment stage that ought to temper the excesses of a more risk-tolerant approach at the point of introduction.   

However, such an approach not only calls for changed behaviour (both by Scottish Ministers and by the Scottish Government’s Law Officers) at the pre-introduction stage, it calls too for changed behaviour (both by Scottish Ministers and by the Scottish Government’s Law Officers) during the four week pre-enactment period. The reluctance of the Scottish Government and of its Law Officers alike, where there is significant risk of post-enactment challenge or where legislation is known to sail close to the boundaries of competence, to initiate section 33 references deprives them of an important legislative tool. For Scottish Ministers (and for the Scottish Parliament), to initiate references in such cases is to pre-empt later challenges (such as those raised, inter alia, by AXA General Insurance, Imperial Tobacco, Scotch Whisky, Christian Institute or the prospect of a crowdfunded challenge to the Gender Recognition Bill) where deep pockets and vested interests are otherwise likely to significantly delay, halt or prevent policy implementation via the layers of post-enactment judicial review. For the Scottish Government’s Law Officers, the power to initiate references during the four week pre-enactment period also serves as a constitutional long stop against the enactment of ultra vires legislation – an absolute ability, in their hands, to ensure that no bill outwith legislative competence becomes law. In this way, not only are the risks which might attach to a greater tolerance of risk at the pre-introduction stage mitigated by the certainty that the Scottish Government’s Law Officers themselves can remove doubt about competence by taking a more robust approach to own-initiative references, but they can do so on their own terms – asserting a pro-devolution approach in a space that, so far, has been entirely defensive and on terms set by their UK Government counterparts.   

Chris McCorkindale, Strathclyde Law School

(Suggested citation: C. McCorkindale, ‘The Lord Advocate’s Role in Vetting Bills for Legislation’, U.K. Const. L. Blog (18th July 2022) (available at https://ukconstitutionallaw.org/))