Reference By The Lord Advocate Of Devolution Points Underneath Paragraph 34 Of Schedule 6 To The Scotland Act 1998 [2022] UKSC 31

The Scottish Authorities drafted a Scottish Independence Referendum Invoice which makes provision for a referendum on the query, “Ought to Scotland be an unbiased nation?”. Underneath the Scotland Act 1998 (“the Scotland Act”), the facility of the Scottish Parliament to make laws (or its “legislative competence”) is proscribed. A provision of a Invoice shall be exterior the legislative competence of the Scottish Parliament and subsequently not legislation if it pertains to the issues which have been reserved to the UK Parliament in Westminster (sections 29(1) and (2)(b)) . These reserved issues embody “the Union of the Kingdoms of Scotland and England” and “the Parliament of the UK” (Schedule 5, paragraphs 1(b) and (c)).

On this reference, the Lord Advocate (the senior legislation officer of the Scottish Authorities) requested the Court docket whether or not the availability of the proposed Invoice which offers for a referendum on Scottish independence could be exterior the legislative competence of the Scottish Parliament as a result of it pertains to both or each of the reserved issues of the Union or the UK Parliament. It is a authorized query concerning the Scottish Parliament’s energy to make laws underneath the Scotland Act. The Court docket will not be being and couldn’t be requested to provide a view on the distinct political query of whether or not Scotland ought to develop into unbiased from the remainder of the UK.

The powers of the Scottish Parliament weren’t in difficulty throughout the 2014 referendum on Scottish independence. It is because, in 2013, an Order in Council underneath part 30(2) of the Scotland Act modified the definition of reserved issues to allow the Scottish Parliament to cross the 2014 referendum laws. The UK Authorities is at present unwilling to conform to the making of one other Order in Council to facilitate one other referendum on Scottish independence.

The Lord Advocate’s reference was made underneath paragraph 34 of Schedule 6 to the Scotland Act. The Advocate Normal for Scotland (the Scottish legislation officer of the UK Authorities) raises two preliminary points, specifically, whether or not the Court docket can and may reply the reference. There are accordingly three questions which the Court docket should contemplate. First, is the query referred to by the Lord Advocate a “devolution difficulty”? If not, it can’t be the topic of a reference underneath paragraph 34 of Schedule 6, which might imply that the Court docket doesn’t have jurisdiction to determine it. Secondly, even when it’s a devolution difficulty, ought to the Court docket train its discretion to say no to simply accept the reference? Thirdly, if the Court docket accepts the reference, how ought to it reply the query the Lord Advocate has referred to it?

HELD: The Supreme Court docket unanimously dismissed this attraction.

In an unanimous judgment, the Court docket solutions the questions earlier than it as follows. First, the query referred to by the Advocate Normal is a devolution difficulty, which implies that the Court docket has jurisdiction to determine it. Secondly, the Court docket ought to settle for the reference. Thirdly, the availability of the proposed Invoice which makes provision for a referendum on the query, “Ought to Scotland be an unbiased nation?” does relate to issues which have been reserved to the Parliament of the UK underneath the Scotland Act. Particularly, it pertains to the reserved issues of the Union of the Kingdoms of Scotland and England and the Parliament of the UK. Accordingly, within the absence of any modification of the definition of reserved issues (by an Order in Council or in any other case), the Scottish Parliament doesn’t have the facility to legislate for a referendum on Scottish independence.

Problem 1: Is the query referred by the Lord Advocate a devolution difficulty?

Solely a “devolution difficulty” might be referred to the Court docket underneath paragraph 34 of Schedule 6 to the Scotland Act. The time period “devolution difficulty” is outlined by paragraph 1 of Schedule 6. Underneath paragraph 1(f), it contains “some other query arising by advantage of this Act regarding reserved issues”. The Court docket concludes that the query referred to by the Lord Advocate falls inside this description and is subsequently a devolution difficulty which the Court docket has jurisdiction to determine.

In reaching this conclusion, the Court docket holds, first, that the query referred to is one “arising by advantage of” the Scotland Act as a result of it’s a query which arose underneath part 31(1) for the particular person wishing to introduce the Invoice into the Scottish Parliament. That particular person is required, on or earlier than the Invoice’s introduction, to provide a press release confirming that, of their view, the provisions of the Invoice could be inside the legislative competence of the Scottish Parliament. Secondly, the existence of the separate scheme for the scrutiny of Payments for legislative competence by the Court docket in part 33 of the Scotland Act doesn’t stop a reference from being made underneath paragraph 34 of Schedule 6 in relation to a proposed Invoice, earlier than it’s launched. Thirdly, the phrases of paragraph 1(f) of Schedule 6 are very vast. They’re supposed to comb up any questions that come up underneath the Scotland Act concerning reserved issues which aren’t coated elsewhere. Fourthly, it’s according to the rule of legislation and with the intention of the Scotland Act that the Lord Advocate ought to be capable of get hold of an authoritative judicial determination on the legislative competence of the Scottish Parliament prematurely of the introduction of a Invoice.

Problem 2: Ought to the Court docket decline to simply accept the Lord Advocate’s reference?

The Court docket concluded that it ought to settle for the reference. The reference has been made as a way to get hold of an authoritative ruling on a query of legislation which has already arisen as a matter of public significance. The Court docket’s reply will decide whether or not the proposed Invoice is launched into the Scottish Parliament. The reference is subsequently not hypothetical, tutorial or untimely [53].

Problem 3: Does the proposed Invoice relate to reserved issues?

The query whether or not the availability of the proposed Invoice which offers for a referendum on Scottish independence would relate to issues which have been reserved to the UK Parliament underneath the Scotland Act (part 29(2)(b)) is to be decided by reference to the aim of the availability, having regard (amongst different issues) to its impact in all of the circumstances (part 29(3).

A provision will relate to a reserved matter if it has one thing greater than a unfastened or consequential reference to it. The aim and impact of the availability could also be derived from a consideration of each the aim of these introducing the laws and the target impact of its phrases. Its impact will not be restricted to its authorized penalties.

Making use of this take a look at, the reserved issues that are related listed here are “the Union of the Kingdoms of Scotland and England” and “the Parliament of the UK” (Schedule 5, paragraphs 1(b) and (c)). The latter reservation contains the sovereignty of the UK Parliament. The aim of the proposed Invoice is to carry a authorized referendum on the query of whether or not Scotland ought to develop into an unbiased nation, that’s, on ending the Union and the sovereignty of the UK Parliament over Scotland. The Invoice’s impact is not going to be confined to the holding of the referendum. Even when the referendum had no rapid authorized penalties, it could be a political occasion with necessary political penalties. It’s subsequently clear that the proposed Invoice has greater than a unfastened or consequential reference to the reserved issues of the Union of Scotland and England and the sovereignty of the UK Parliament. Accordingly, the proposed Invoice pertains to reserved issues and is exterior the legislative competence of the Scottish Parliament.

The Scottish Nationwide Celebration (intervening) made additional written submissions based on the suitable to self–dedication in worldwide legislation and the precept of legality in home legislation. The Court docket rejects these submissions, holding that the suitable to self-determination will not be in difficulty right here and doesn’t require a slim studying of “pertains to” in part 29(2)(b) in order to restrict the scope of the issues reserved to the UK Parliament underneath the Scotland Act. Equally, the allocation of powers between the UK and Scotland underneath the Scotland Act doesn’t infringe the precept of legality.

For the judgment, please see:

For the Press Abstract, please see:

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11 Oct 2022 Morning session Afternoon session

12 Oct 2022 Morning session Afternoon session