Iain Halliday: Political and Legal Constitutionalism in the Age of Supreme Court Referrals

Back in early 2013 I wrote my undergraduate dissertation on the role of law and politics in the independence debate. I concluded that:

“Throughout the independence debate, the law, in the form of judicial intervention, had no role to play. This can be seen as a victory for the political constitution. In the context of significant constitutional reform, political agreement was preferred to judicial adjudication.”

The agreement referred to is the Edinburgh Agreement of 15 October 2012 in which the UK Government agreed to pass a section 30 Order under the Scotland Act 1998 to provide a clear legal basis for the 2014 independence referendum.

Ten years later, the political constitution isn’t looking quite so victorious.

In both 2012 and 2022 the question of whether the Scottish Parliament could pass legislation providing for a Scottish independence referendum arose.

In 2012 a political solution was found.

In 2022 the Supreme Court was called upon to provide an answer.   

The Supreme Court reference

As most readers will already know, the Supreme Court decided that:

“It is plain that a Bill which makes provision for a referendum on independence – on ending the Union – has more than a loose or consequential connection with the Union of Scotland and England … A lawfully held referendum would be a political event with political consequences. It is equally plain that a Bill which makes provision for a referendum on independence – on ending the sovereignty of the Parliament of the United Kingdom over Scotland – has more than a loose or consequential connection with the sovereignty of that Parliament.”

REFERENCE by the Lord Advocate of devolution issues
under paragraph 34 of Schedule 6 to the Scotland Act
[2022] UKSC 31 [82]

The Scottish Independence Referendum Bill therefore relates to the reserved matters of ‘the Union of the Kingdoms of Scotland and England’ and ‘the Parliament of the United Kingdom’, and is outwith the competence of the Scottish Parliament.

What is of more interest for present purposes is that the Supreme Court agreed to provide an answer.

The UK Government argued that the Supreme Court lacked the jurisdiction to answer the question. It argued that the provision relied on by the Lord Advocate in making a reference to the court – paragraph 1(f) of Schedule 6 to the Scotland Act 1998 – did not include the Referendum Bill in the definition of “devolution issue”. Only a “devolution issue” can be referred to the court for adjudication.

A “devolution issue” includes several specific questions as well 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.”

Scotland Act 1998, sch 6, para 1(f)

The UK Government argued that the question referred – whether the proposed Scottish Independence Referendum Bill related to reserved matters – was not one arising by virtue of the Scotland Act 1998. Rather it arises by virtue of the Scottish Ministerial Code which requires that a statutory statement that a Bill is within legislative competence is cleared with the Lord Advocate. The Scotland Act does not require this.

It was also argued that paragraph 1(f) is not concerned with the legislative competence of the Scottish Parliament and that including such questions within the definition of “devolution issue” would undermine other provisions of the Scotland Act (notably the procedure for referring Bills established by section 33).

The UK Government’s interpretation would mean the issue could not be considered by the court. This, the UK government said, was not a problem:

“The [UK Government] does indeed submit that Schedule 6 does not permit a reference to the Supreme Court of a question concerning a draft or a proposed Bill. However, that does not create any form of unacceptable lacuna.

Taken at its highest, the effect is that a Bill cannot be introduced into the Scottish Parliament by a Minister of the Scottish Government which the Lord Advocate considers to be outside legislative competence. It is hard to see why this should be a matter of legal concern.”

Written Case on behalf of the Advocate General for Scotland

In short: not all problems have a legal solution.

The Supreme Court disagreed. It held that paragraph 1(f) of Schedule 6:

“… ensures that it is possible for every conceivable question about whether a function is exercisable within devolved competence or in or as regards Scotland, and every conceivable question about reserved matters, to be decided by the courts … It is understandable that the United Kingdom Parliament should have provided a means of ensuring that every such question is justiciable, since there could otherwise be situations where a limit on the exercise of a function could not be authoritatively determined.”

REFERENCE by the Lord Advocate of devolution issues
under paragraph 34 of Schedule 6 to the Scotland Act
[2022] UKSC 31 [37]

Thus, in the context of devolution, every problem can have a legal solution, albeit the Supreme Court isn’t obliged to provide one.

The inherent discretion to decline a reference

The UK Government also argued that the Supreme Court should decline to decide the question referred by the Lord Advocate. The court has previously held that it has an inherent discretion to decline to decide a reference. A reference can be declined, for instance, on the basis that it is generally desirable that legal questions are determined against the background of a clear factual matrix rather than as theoretical issues of law.

This, the Supreme Court held, was not an apt description of the question referred:

“The answer to the question will have practical consequences: it will determine whether the proposed Bill is introduced into the Scottish Parliament or not. The question is therefore not hypothetical, academic or premature.”

REFERENCE by the Lord Advocate of devolution issues
under paragraph 34 of Schedule 6 to the Scotland Act
[2022] UKSC 31 [53(1)]

A concern that the Bill could be amended before or during its passage through the Scottish Parliament was dismissed due to the “brevity and clarity” of the provision. Also dismissed was a concern that there was not yet any policy memorandum (which would accompany the Bill if introduced to Parliament).  

The risk of a subsequent reference being necessary once the Bill had passed through Parliament was one the Supreme Court held it could “discount” [53]. The court does not fully explain why the risk of a further reference – for example, on the basis that the Bill is incompatible with the preservation of the UK Parliament’s unqualified power to make laws for Scotland in section 28(7) of the Scotland Act – can be discounted. This could possibly be due to the overlap between this question and the question of whether the Bill relates to the reserved matter of ‘the Parliament of the United Kingdom’.

In any event, the reference was accepted and an answer provided.

When deciding whether to accept a reference the court appears to have been concerned with when the issue should be decided by the court rather than whether the issue should have been decided by the court.

A reference may still be rejected where there are other proceedings pending which would resolve the issue (as was the case in the two previous Northern Ireland references decided by the Supreme Court, here and here) or where a reference after passage of the Bill would be more appropriate. It remains to be seen whether a reference can be rejected on the basis that the question should not be answered by the court at all.

Political and legal constitutionalism

Where does this leave the political constitution? In particular, where does it leave the idea that constitutional questions should generally be decided through political means such as debate, questioning, and investigative scrutiny, both in Parliament and through the media?  

There are, of course, elements of both legal and political constitutionalism in every constitution. The UK constitution will never conform entirely to one model or the other.

However, the contrasting approaches adopted in 2012 and 2022 to resolve the question of whether the Scottish Parliament can legislate for an independence referendum suggests that our constitution is becoming more legal and less political.

In recent years, disputes between the UK and Scottish Governments have increasingly been resolved through litigation in court. Public debate and political negotiation are no longer sufficient, on their own, to provide a solution. Those opposed to certain Acts of the Scottish Parliament now achieve through the courts what they are unable to achieve through the political process.

Political rhetoric is replaced with reasoned legal argument. Soundbites are replaced with detailed submissions. Public and media focus moves from Parliament to the Supreme Court which provides written justification for its decision. This, in my view, is a more effective method of resolving disputes than political processes such as parliamentary oversight, intergovernmental negotiations, public protest, and/or media scrutiny. However it comes at a cost. It leads to important decisions being made by judges rather than democratically elected politicians who are accountable to the electorate. As a result, the public may feel excluded from the process.

The recent dispute regarding the Gender Recognition Reform (Scotland) Bill is likely to be no different. The Secretary of State for Scotland has issued an order under section 35 preventing the Bill from being submitted for Royal Assent due to his belief that it would have an adverse effect on the operation of the law as it applies to reserved matters.

Will this dispute be resolved politically – perhaps through Parliamentary debate or through the procedures outlined in the review of intergovernmental relations published on 13 January 2022?

Or will the Scottish Government seek a legal solution and lodge a petition seeking to judicially review the section 35 order at the Court of Session?

I suspect that – as with the independence debate, incorporation of the UN Convention on the Rights of the Child, and legislation preserving EU law post-Brexit – it will be left to the courts to decide.

This suggests that, when it comes to devolution, the political constitution is no longer capable of providing a solution to modern day political problems. Perhaps this is a temporary failing, attributable to the political differences between the current UK and Scottish Governments. However, a constitution which can only resolve differences when political ideologies are aligned is not fit for purpose. Far from being victorious, the political constitution now seems to be in decline.

With thanks to Mike Gordon and Paul Scott for their helpful feedback on an earlier version of this post. Any errors remain my own.

Iain Halliday is an Advocate at Themis Advocates, specialising in public law.

An edited version of Iain’s dissertation was published by the Aberdeen Student Law Review in November 2014 and can be read here.

(Suggested citation: I. Halliday, ‘Political and Legal Constitutionalism in the Age of Supreme Court Referrals’, U.K. Const. L. Blog (13th February 2023) (available at https://ukconstitutionallaw.org/))