On 28 June 2022, the Lord Advocate referred to the UK Supreme Court (“UKSC”) the question of whether the Scottish Parliament has the power to legislate for a second independence referendum (“Indyref 2”) without an Order enabling it do so under section 30 of the Scotland Act 1998 (a “section 30 Order”). Assuming the UKSC will accept the reference, we argue that it should rule that the Scottish Parliament has no legal power to pass legislation facilitating an independence referendum without a section 30 Order. However, we propose that this does not prevent the UKSC from attempting to break the deadlock by declaring that the UK Government is acting unconstitutionally in a political sense if it does not make a section 30 Order. Of course, there is no guarantee that a section 30 Order would be issued – we consider alternative pathways to an Indyref 2, including possible invocations of constituent power, in a forthcoming article – but we argue that this would be a constitutionally proper and desirable approach for the UKSC to take.
Legally, the Scottish Parliament cannot legislate for Indyref 2 without a section 30 Order
Based on the wording of the Scotland Act 1998, we do not believe that the UKSC should decide that the Scottish Parliament can legislate for a referendum without a section 30 Order. Section 29(2)(b) and paragraph 1 of Schedule 5 of the Scotland Act 1998 state that issues are outside the Scottish Parliament’s competence – and thus necessitate a section 30 Order – if they “relate to” “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom”. The Inner House of the Court of Session recently implied that a section 30 Order would be needed because a referendum on Scottish independence would “relate to” those matters in more than a “loose or consequential” way. Lord Carloway observed that it would “not be too difficult to arrive at a conclusion” on the matter in the case of Keatings v the Advocate General and the Lord Advocate. However, he ultimately held that determining whether a section 30 Order was needed was premature, hypothetical, and academic at that stage and with that petitioner (an independence campaigner seeking information prior to the Holyrood election of May 2021). The UK Government compares the present case to Keatings and argues that it, too, is premature and should be dismissed. But that argument fails given how many of the unknowns central to the Court’s decision in Keatings (para 55) are now resolved. For example, the outcome of the May 2021 Scottish election is obviously now known, as is the current Scottish Government’s clear intention to find a pathway to determine the independence question, including specifying a proposed referendum date of 19 October 2023. With the Lord Advocate stating that she is “unlikely to have the necessary degree of confidence that the [Scottish Independence Referendum] Bill does not relate to a reserved matter to ‘clear’” it, and no section 30 Order forthcoming, the UKSC would thus be ideally placed to break the impasse.
That the Bill relates to reserved matters in more than a “loose or consequential” way is evident from the definition of “relates to” found in the Scotland Act 1998 itself, with section 29(3) clarifying that the provision’s “purpose” and “its effect in all the circumstances” are to be taken into account when determining whether a provision “relates to” a reserved matter. We cannot agree that it might be “credible” to argue that the motivation behind a potential referendum could be relevant to determining the issue of competence (i.e. that a referendum could be within the Scottish Parliament’s competence if its “purpose” is seen as simply surveying the Scottish public on their “constitutional future” rather than “the destruction of Britain”). As the Advocate General for Scotland has noted, the reserved matter is “the Union”, not “the dissolution of the Union”. And the same argument could be made with regard to the reserved matter of “the Parliament of the United Kingdom”: quite apart from the motivation behind a referendum, the sheer possibility that it could lead to the UK Parliament losing its sovereignty over Scotland creates more than just a “loose” connection. In other words, the narrow “purpose” of a provision cannot be considered in isolation from its potential “effect in all the circumstances”. Based on the statutory language, it is therefore difficult to see the UKSC concluding that the Scottish Parliament has the power to legislate for a referendum without a section 30 Order.
Apparently, the case of R (on the application of Miller and another) v Secretary of State for Exiting the European Union (“Miller I”) gives Unionists cause for “concern” that the proposed Bill is within competence after all. This is because Miller I confirmed that referenda whose authorising statutes do not provide for any legal effects in the event of adoption can at most have political effects. Andrew Tickell has argued that this provides a “stateable case” for arguing that the Scottish Parliament has the competence to proceed with the Bill: aimed merely at “ascertaining the views of the people of Scotland on whether Scotland should be an independent country” (section 1 of the Bill), the referendum would be purely advisory and therefore have no legal effects. Hence, the argument goes, Indyref 2 would not necessarily “relate to” the Union as it would have no legal effect whatever on the Union. So great is this “concern” that it has led Adam Tomkins to seemingly change his mind about the Scottish Parliament’s powers, having been more certain in the run up to the 2014 referendum that a section 30 Order was required. In our view, however, Miller I could more plausibly be read in support of the UK Government’s case because the UKSC made clear in Miller I that even referenda that lack legal effect need not be “devoid of effect”. Although the EU referendum was advisory only, the UKSC found that it in fact had “great political significance” (para 124). To consider that Indyref 2 would not “relate to … the Union” purely because it is not legally binding is indeed “absurd”.
Constitutionally, the UK Government’s actions should be declared improper in a political sense
But the wording of the Scotland Act 1998 is not the end of the matter. As Joanna Cherry KC MP has argued, the UKSC needs to look to the “wider constitutional context” when determining the reference. Cherry invoked Scotland’s right to self-determination – a right that also featured prominently in Nicola Sturgeon’s statement on Indyref 2 – and noted that the UKSC should have something to say about the UK Government’s refusal to allow Indyref 2 despite what she rightly anticipated to be a “clear electoral mandate in favour of [it]”. We argue that she is correct, at least in a political sense. For although the idea of a Scottish right to self-determination is controversial from the perspective of international law, this does not prevent the UKSC from taking seriously the constitutional importance of the SNP’s manifesto and the principle of democracy more broadly. Indeed, section 63A of the Scotland Act 1998 (as added by the Scotland Act 2016 s. 1) could be interpreted as UK governmental recognition of the democratic importance of the views of the Scottish people and a Scottish right to self-determination. To be sure, this provision, which assures the “permanence” of the Scottish Parliament and Government unless the Scottish people decide otherwise in a referendum, is without legal effect. However, in line with David Feldman’s suggestion, its drafting can be taken to reflect (and, indeed, bolster) the political reality of the permanence of devolution.
Currently, the UK Government is undermining democracy by refusing to take seriously the SNP’s 2021 manifesto pledge and its endorsement by the Scottish people, as well as the January 2020 Scottish Parliament vote in favour of Indyref 2. Indeed, in the SNP’s application to intervene in the reference (which was recently granted in limited form), they have suggested that the UK Government is acting unconstitutionally for the same reason that underpins the Salisbury convention – it being “at least constitutionally improper” to prevent the implementation of a clear manifesto commitment. Obviously, the Salisbury convention itself does not apply: we are not dealing with a House of Lords voting down Government Bills that aim to deliver on election manifestos, but rather with a national Government that is resisting the free exercise of democratic will-formation in a devolved nation. Yet, the SNP have a strong case that a similar underlying principle is engaged. In both contexts, we are faced with elected groups’ manifesto pledges that are at risk of being thwarted by bodies with less democratic legitimacy.
The UKSC may therefore find it necessary to engage with the constitutional principle underlying the Salisbury convention. More specifically, it may have to grapple with the question of whether the will of a democratically elected devolved parliament is more important constitutionally than that of the UK Government. We believe the seeds for an answer to this question can be found in AXA General Insurance Limited and others v The Lord Advocate and others, R v Secretary of State for the Home Department, Ex Parte Pierson, and R (on the Application of Miller) v The Prime Minister; Cherry v Advocate General for Scotland (“Miller II”). In AXA, Lord Hope noted that intervention with the Scottish Parliament should occur, “if at all, only in the most exceptional circumstances” (para 49). To be sure, Lord Hope was referring to judicial review of Acts of the Scottish Parliament, not interventions by the UK Government in Scottish Parliament votes. But his finding that the Scottish Parliament benefits from the “advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate” (para 49) appears valid regardless of who is doing the intervening and of whether the intervention is to legislation or (as in this case) a parliamentary vote. Lord Hope’s point, which was echoed in Lord Reed’s opinion, applies to the devolved constitutional settlement the logic of Lord Steyn’s famous dictum in Ex Parte Pierson that “Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law” (at 587). In other words, the principle of democracy plays a key role in the UK constitution and cannot easily be discarded, especially by an executive body that lacks the same democratic legitimacy as the devolved legislature.
The UKSC may not be ready to embrace arguments that democracy is a legal rather than simply a political principle of our constitution. But that does not stop it from declaring the UK Government’s actions unconstitutional in a political sense because denying the section 30 Order would frustrate democratic will-formation in contravention of an election manifesto pledge. In Re: Resolution to Amend the Constitution  1 SCR 753, the Canadian federal government attempted to patriate the Canadian constitution without the majority of the provinces’ consent. By majority, the Supreme Court of Canada (“SCC”) ruled that this action was lawful, but unconstitutional in a political sense because it violated a constitutional convention that such consent would be sought. For the UKSC, too, such a judicial statement would be an appropriate means of attempting to break the deadlock by exerting some political pressure similar to the Canadian case, where the SCC’s judgment encouraged further political negotiations which eventually secured the majority of provinces’ consent.
Granted, such an approach would be a departure from the UKSC’s treatment of the Sewel convention in Miller I, where it held that judges “are neither the parents nor the guardians of political conventions” (para 146). However, we agree with Mark Elliott that that case shows “a strikingly narrow view of the proper extent of judicial engagement with conventions” which sits “uncomfortably with existing case law” such as Evans v Information Commissioner and Attorney General v Jonathan Cape Ltd. One might assume that the UKSC in Miller I felt constrained by the Sewel convention’s implications for Westminster sovereignty. A more robust approach (although still short of legal enforcement) in the present case is warranted since the considerations point the opposite way: here, the wishes of the Scottish Parliament and people are being thwarted by the Westminster government, not Westminster sovereignty. Judges may be “neither the parents nor the guardians” of conventions, but even “mere observers” (Miller I, para 146) can express their opinion that an important constitutional principle is under threat.
Although it is fair to say that the UKSC has typically been “quite conservative in its constitutional jurisprudence” in recent years, one notable exception is Miller II. The UKSC’s use of constitutional principle in that case sets a helpful precedent to be used in the present case. In particular, the Miller II Court’s engagement with the principle of governmental accountability per se, rather than as a principle underlying any specific constitutional convention, should serve as inspiration for the Court in the case at hand. The current stand-off over Indyref 2 constitutes as much of an “arbitrary exercise of executive power” as was risked by the unlawful prorogation (Miller II, para 46). After all, the extent of the Westminster government’s discretion in relation to the making of section 30 Orders is surely also limited, politically, by constitutional principle. Unlike when determining the limits of a prerogative power, such limitations cannot be set judicially. However, that does not give the Court reason to be as timid as in Miller I. Rather, it should state that important constitutional principles should not be disregarded.
Nicola Sturgeon has been clear that if the UKSC determines that a section 30 Order is needed, the fault will not be of the UKSC, but of the Westminster legislation (i.e. the Scotland Act 1998). In our view, the problem is neither the UKSC nor the legislation, but the behaviour of the UK Government, in its unwillingness to recognise the “material changes in circumstances” since 2014, and an apparent unwillingness to negotiate with a democratically elected leader. The UK Government’s actions may not be contrary to law – but that does not mean that the UKSC cannot play an important role in attempting to encourage civilised negotiations.
The authors are extremely grateful to Professors Michael Gordon and Alison Young for their invaluable comments on an earlier draft.
Shona Wilson Stark is an Official Fellow of Girton College and an Assistant Professor at the Faculty of Law, University of Cambridge
Raffael Fasel is an Affiliated Lecturer at the Faculty of Law, University of Cambridge, a Visiting Scholar at NYU Law School, and a SNSF Senior Researcher at the University of Zurich
(Suggested citation: S. Wilson Stark and R. Fasel, ‘Unconstitutionally Legal: How the UK Supreme Court Should Decide the Lord Advocate’s Reference’, U.K. Const. L. Blog (3rd October 2022) (available at https://ukconstitutionallaw.org/))