REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998

REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998JUDGMENT
REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act
1998
before
Lord Sales Lord Stephens
Heard on 11 and 12 October 2022
Appellant Dorothy Bain KC Tom Hickman KC
Christine O’Neill KC Paul Reid
(Instructed by Scottish Government Legal Directorate)
Respondent Sir James Eadie KC David Johnston KC
Chris Pirie KC Christopher Knight
(Instructed by the Office of the Advocate General for Scotland)
Intervener Claire Madison Mitchell KC
David Welsh (Instructed by Livingstone Brown Limited (Glasgow
City))
Page 2
LORD REED, LORD LLOYD-JONES, LORD SALES, LORD STEPHENS AND LADY ROSE:
1. Does the Scottish Parliament have power to legislate for the holding of a referendum on Scottish independence? That is the subject-matter of a reference by the Lord Advocate, the senior Law Officer of the Scottish Government, to this court under paragraph 34 of Schedule 6 to the Scotland Act 1998 (“the Scotland Act”), as amended. But the Advocate General for Scotland, the Scottish Law Officer of the United Kingdom Government, has raised two preliminary issues. First, is the question referred by the Lord Advocate a “devolution issue”? If not, it cannot be the subject of a reference under paragraph 34 of Schedule 6. Secondly, even if the question is a devolution issue, should the court nevertheless decline to accept the reference in the exercise of its discretion?
2. There are accordingly three questions which the court must consider: first, whether the question referred by the Lord Advocate is a devolution issue; secondly, if it is, whether the court should accept the reference; and thirdly, if so, how the question should be answered. It is logical to consider the questions in that order, since if either of the first two questions receives a negative answer, the third question does not arise.
3. This is the judgment of the court. We begin by explaining the background to the reference (paras 4-11). We then set out the question referred (para 12). We then consider whether the question referred is a devolution issue (paras 13-47). We next consider whether the court should accept the reference (paras 48-54). We then consider how the question should be answered, addressing first the arguments presented by the Lord Advocate (paras 55-83), and then those presented by the Scottish National Party (paras 84-91). The Scottish National Party has exceptionally been permitted to intervene, notwithstanding that it is the party forming the Scottish Government in which the Lord Advocate is a minister, so that the court can consider a wide range of arguments. Finally, we give our answer to the question referred (para 92).
1. The background to the reference
4. First, the background to the reference should be briefly explained. The Scottish National Party, which is committed to Scottish independence, has formed the Scottish Government since 2007.
Page 3
5. In 2013 an Order in Council was made under section 30(2) of the Scotland Act so as to enable the Scottish Parliament to legislate for the holding of a referendum on independence. The Order in Council did so by modifying the definition of reserved matters in Schedule 5 to the Scotland Act. In particular, paragraph 1 of Schedule 5 provides:
“The following aspects of the constitution are reserved matters, that is -
(a) the Crown, including succession to the Crown and a regency,
(b) the Union of the Kingdoms of Scotland and England,
(c) the Parliament of the United Kingdom,
(d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,
(e) the continued existence of the Court of Session as a civil court of first instance and of appeal.”
The Order in Council inserted a new paragraph 5A into Schedule 5, which provided that paragraph 1 did not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if specified requirements were met. Paragraph 5A is no longer in force.
6. The referendum authorised by the Order in Council was held in 2014, and resulted in a majority vote against independence.
7. The Scottish Government wishes to hold another referendum on independence. The United Kingdom Government is unwilling to agree to the making of a further Order in Council under section 30(2) at the present time. In those circumstances, the Scottish Government wishes, if possible, to hold a referendum without an Order in Council, and therefore without any modification of the definition of reserved matters in Schedule 5.
Page 4
8. Absent legislation by the United Kingdom Parliament, the holding of a referendum requires authorisation by an Act of the Scottish Parliament. The power of the Scottish Parliament to make legislation, described in the Scotland Act as its “legislative competence”, is limited. Section 29(1) of the Scotland Act provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. Section 29(2) lists five circumstances in which a provision is outside legislative competence:
“(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
(b) it relates to reserved matters,
(c) it is in breach of the restrictions in Schedule 4,
(d) it is incompatible with any of the Convention rights or in breach of the restriction in section 30A(1),
(e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.”
In relation to section 29(2)(b), as was explained earlier, reserved matters are defined in Schedule 5. Paragraph 1(b) and (c) of that Schedule reserve “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” respectively: see para 5 above. If legislation authorising the holding of a referendum would relate to either or both of those matters, it would accordingly relate to a reserved matter, and be outside the legislative competence of the Scottish Parliament.
9. Sections 31 to 33 of the Scotland Act provide for the scrutiny of Bills in order to check that they are within legislative competence. It will be necessary to consider these provisions in some detail. For present purposes, it is sufficient to note the terms of section 31(1):
“A person in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the
Page 5
provisions of the Bill would be within the legislative competence of the Parliament.”
In the case of a Bill introduced by the Scottish Government, paragraph 3.4 of the Scottish Ministerial Code requires that the statement under section 31(1) must have been cleared with the Law Officers.
10. A Scottish Independence Referendum Bill has been drafted by the Scottish Government. The present reference arises because the Lord Advocate considers that she would be unlikely to have the necessary degree of confidence that the Bill does not relate to a reserved matter to clear a Ministerial statement under section 31(1) that the Bill is within the legislative competence of the Scottish Parliament. Given the importance of the issue to the Scottish Government, the Lord Advocate was requested by the First Minister to consider referring the question whether the Bill would be within the legislative competence of the Scottish Parliament to this court for decision. The Lord Advocate agreed to make such a reference.
11. The reference has been made under paragraph 34 of Schedule 6 to the Scotland Act, which provides:
“The Lord Advocate, the Attorney General, the Advocate General or the Advocate General for Northern Ireland may refer to the Supreme Court any devolution issue which is not the subject of proceedings.”
2. The question referred
12. The question referred is:
“Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be ‘Should Scotland be an independent country?’ relate to reserved matters? In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England (paragraph 1(b) of Schedule 5); and/or (ii) the Parliament of the United Kingdom (paragraph 1(c) of Schedule 5)?”
Page 6
3. Is the question referred a devolution issue?
13. Only a “devolution issue” can be referred to this court under paragraph 34 of Schedule 6. The expression “devolution issue” is defined by paragraph 1 of Schedule 6. So far as material, paragraph 1 provides:
“In this Schedule ‘devolution issue’ means -
(a) a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament,
(b) a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate,
(c) a question whether the purported or proposed exercise of a function by a member of the Scottish Government is, or would be, within devolved competence,
(d) a question whether a purported or proposed exercise of a function by a member of the Scottish Government is, or would be, incompatible with any of the Convention rights or in breach of the restriction in section 57(4),
(e) a question whether a failure to act by a member of the Scottish Government is incompatible with any of the Convention rights,
(f) 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.”
14. The Lord Advocate relies on the final words of paragraph 1(f):
Page 7
“any other question arising by virtue of this Act about reserved matters.”
She maintains that the question which she has referred falls within that description. The Advocate General maintains that it does not. His arguments in support of that position can be considered under four headings.
(1) The Advocate General’s first argument: “arising by virtue of this Act”, or by virtue of the Scottish Ministerial Code?
15. The first argument advanced by counsel for the Advocate General responds to the Lord Advocate’s submission that the question she has referred is one “arising by virtue of this Act”, as required by paragraph 1(f), because it arises in the course of her performance of her function under the Scottish Ministerial Code of advising the Scottish Government, and in particular the minister in charge of the Bill, on whether the statement required by section 31(1) of the Scotland Act can be made. In response, counsel for the Advocate General point out that the Scotland Act contains no provision requiring the Lord Advocate to advise ministers in relation to statements made under section 31(1). Since the Lord Advocate’s function in relation to such statements is not prescribed by the Scotland Act, a question arising in the course of performing that function is not, they submit, one “arising by virtue of this Act”. A requirement imposed by the Scottish Ministerial Code has no bearing on paragraph 1(f), since neither the existence nor the terms of the Code is prescribed by the Scotland Act.
16. These points are fairly made in response to the way in which the Lord Advocate initially put her case, but they are not fatal to her position as it developed, in response to questions from the bench, during the course of the hearing. As she came to accept, her role under the Scottish Ministerial Code does not bear on the present issue. Whether a question is one “arising by virtue of this Act” does not depend on whether the Lord Advocate is required by the Scotland Act to answer it. The question whether the provisions of a Bill would be within the legislative competence of the Scottish Parliament is one “arising by virtue of this Act” (subject to the other arguments advanced on behalf of the Advocate General), since it is a question which arises under section 31(1) for the person wishing to introduce the Bill, whether that be a minister or a private member. Provided the question is about reserved matters, as required by paragraph 1(f) of Schedule 6, the Lord Advocate is entitled to refer it to this court under paragraph 34 (subject, again, to the other arguments advanced on behalf of the Advocate General).
Page 8
(2) The Advocate General’s second argument: the scheme of legislative scrutiny established by sections 31 and 33 would be undermined
17. Sections 31 and 33 of the Scotland Act set out a number of provisions concerned with the scrutiny of Bills in order to assess whether they are within the legislative competence of the Scottish Parliament.
18. Section 31, headed “Scrutiny of Bills for legislative competence and protected subject-matter”, imposes obligations upon the person who wishes to introduce a Bill and upon the Presiding Officer of the Scottish Parliament. As has been explained, section 31(1) requires that the person in charge of a Bill must make a statement, on or before the introduction of the Bill in the Scottish Parliament, that in his or her view the provisions of the Bill would be within the legislative competence of the Scottish Parliament. In addition, section 31(2) requires that the Presiding Officer must decide, on or before the introduction of a Bill in the Scottish Parliament, whether or not in his or her view the provisions of the Bill would be within the legislative competence of the Scottish Parliament, and state his or her decision.
19. Section 33, headed “Scrutiny of Bills by the Supreme Court (legislative competence)”, confers upon certain Law Officers the power to refer certain questions of legislative competence to this court. In particular, section 33(1) provides:
“The Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court for decision.”
The generality of that provision is, however, cut down by section 33(2), which provides:
“Subject to subsection (3), he may make a reference in relation to a Bill at any time during –
(a) the period of four weeks beginning with the passing of the Bill, and
Page 9
(b) any period of four weeks beginning with any approval of the Bill in accordance with standing orders made by virtue of section 36(5).”
Subsection (3) is immaterial to the present proceedings. Subsection 2(b) addresses the situation where a Bill has been approved by the Scottish Parliament following its reconsideration after this court’s decision on a reference under section 33(1).
20. Counsel for the Advocate General argue that it would be surprising if the United Kingdom Parliament had set up a scheme for the reference of Bills under section 33, but had simultaneously enabled the Law Officers to make references of Bills or proposed Bills outside that scheme. The view that section 33 provides the only method of scrutinising a measure for legislative competence prior to Royal Assent is, they submit, supported by a number of considerations, including the following:
(1) The definition of devolution issues in paragraph 1 of Schedule 6 refers to Acts of the Scottish Parliament but contains no reference to Bills or proposed Bills.
(2) The Notes on Clauses which accompanied the Scotland Bill when it was considered by the United Kingdom Parliament, and were published online and in hard copy, state, in relation to paragraph 34 of Schedule 6:
“Paragraph 34 provides that all the principal Law Officers may refer to the Judicial Committee [whose devolution jurisdiction was inherited by the Supreme Court] any devolution issue which is not the subject of proceedings. This power enables the Law Officers to refer any vires question to the Judicial Committee even although it is not the subject of a judicial dispute and has not arisen in proceedings on a Bill.” (emphasis added)
Counsel submit that the words which we have italicised indicate a lack of intention on the part of the United Kingdom Parliament that questions about Bills should be referable under paragraph 34.
(3) The United Kingdom Parliament, they submit, clearly did not intend that a Bill could be referred under paragraphs 1(f) and 34 of Schedule 6 after it has been introduced in the Scottish Parliament, yet the Lord Advocate’s analysis
Page 10
lacks an explanation of why that is not possible on her interpretation of Schedule 6. Concurrent methods of raising the same or similar points would, they submit, be a recipe for chaos.
(4) References under the closing words of paragraph 1(f) of Schedule 6 are limited to questions about reserved matters. But the limits upon the legislative competence of the Scottish Parliament are not confined to reserved matters: that is only one of five limitations imposed by section 29(2) (see para 8 above). The Lord Advocate’s interpretation of paragraph 1(f) would therefore result in a bifurcation of issues arising in relation to the Scottish Parliament’s legislative competence (we shall refer to this argument as “the bifurcation point”). Issues relating to reserved matters could, on her interpretation, be considered on a reference under paragraphs 1(f) and 34 of Schedule 6 at the stage when a Bill was in draft, but other issues relating to legislative competence could only be referred under section 33 after the Bill had been passed. It is hard, counsel submit, to identify any purpose which the United Kingdom Parliament might have intended by this bifurcation, and the Lord Advocate does not attempt to do so.
(5) The terms of an Act passed by the Scottish Parliament may differ from those of a proposed Bill referred under paragraphs 1(f) and 34 of Schedule 6. For that reason also, there could be a further reference under section 33. The Lord Advocate does not explain why the United Kingdom Parliament would have imposed such a potential burden on the finite resources of the court.
(6) The Lord Advocate’s approach also gives rise to the surprising consequence that Law Officers of the United Kingdom Government, who are given the same power to make a reference under paragraph 34 of Schedule 6 as the Lord Advocate, can make a pre-emptive reference of whether a legislative proposal by the Scottish Government is outside legislative competence because it relates to reserved matters, rather than waiting for the appropriate moment under section 33.
21. These submissions raise a number of matters of importance, particularly as regards the relationship between references under paragraphs 1(f) and 34 of Schedule 6, on the one hand, and under section 33, on the other.
22. We accept that a reference cannot be made under paragraphs 1(f) and 34 after a Bill has been introduced in the Scottish Parliament. As we have explained, section 33(1) confers a power on Law Officers to refer a question of legislative competence in
Page 11
relation to a Bill to this court, but section 33(2) then confines that power to a specified period after the passing of the Bill or its approval following an earlier reference. The clear implication is that it is only during those specified periods that a reference to this court can be made in respect of a Bill once it has been introduced. As was pointed out in Keatings v Advocate General for Scotland [2021] CSIH 25; 2021 SC 329, para 61, the time limits imposed on references by Law Officers under section 33(2) would be rendered nugatory if they could make a reference under another provision of the Scotland Act during the…