Supreme Court vetoes proposed referendum bill
The Scottish Parliament cannot legislate for an independence referendum without the consent of the UK Parliament, the Supreme Court ruled today.
In a unanimous decision, Lord Reed (President of the court), Lord Lloyd-Jones, Lord Sales, Lord Stephens and Lady Rose ruled that it was within the scope of the Scotland Act for the Lord Advocate to request a ruling before the proposed bill was introduced, but that the bill would "relate to" the Union between Scotland and England and to the sovereignty of the UK Parliament and would therefore come within the scope of matters reserved to Westminster.
The Lord Advocate’s reference was made under para 34 of sched 6 to the Scotland Act. The Advocate General for Scotland, for the UK Government, raised as preliminary issues whether the court can and should answer the reference.
In a judgment in the names of all five Justices, the court held that the question referred was a devolution issue. It was one “arising by virtue of” the Scotland Act because it was a question which arose under s 31(1) for the person wishing to introduce the bill into the Scottish Parliament, who had to give a statement confirming that, in their view, the provisions of the bill would be within legislative competence.
Secondly, the existence of the separate scheme for the scrutiny of bills by the court in s 33 of the Act did not prevent a reference from being made under para 34 of sched 6 in relation to a proposed bill before it was introduced. Thirdly, the terms of para 1(f) of sched 6 were very wide, and intended to sweep up any questions arising under the Act about reserved matters which were not covered elsewhere.
Fourthly, it was consistent with the rule of law and with the intention of the Scotland Act that the Lord Advocate should be able to obtain an authoritative judicial decision on the legislative competence of the Scottish Parliament in advance of the introduction of a bill.
On the UK Government's submission that the court should in the exercise of its decline to accept the reference, the court said the reference had been made in order to obtain an authoritative ruling on a question of law which had already arisen as a matter of public importance. Its answer would determine whether the proposed bill was introduced into the Scottish Parliament. The reference was not therefore hypothetical, academic or premature, and the court should accept it.
Turning to whether the proposed bill related to reserved matters, the court said the question was to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances: s 29(3) of the Act.
A provision would relate to a reserved matter if it had something more than a loose or consequential connection with it. The purpose and effect of the provision might be derived from a consideration of both the purpose of those introducing the legislation and the objective effect of its terms. Its effect was not restricted to its legal consequences.
Applying this test, the reserved matters which were relevant here were “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (Scotland Act, sched 5, paras 1(b) and (c)). The latter reservation included the sovereignty of the UK Parliament.
The bill’s effect would not be confined to the holding of the referendum. Even if the referendum had no immediate legal consequences, it would be a political event with important political consequences. It was therefore clear that the proposed bill had more than a loose or consequential connection with the reserved matters of the Union of Scotland and England and the sovereignty of the UK Parliament. Accordingly, it related to reserved matters and was outside the legislative competence of the Scottish Parliament.
Regarding the submissions by the SNP in a written intervention, founded on the right to self-determination in international law and the principle of legality in domestic law, which argued that restrictions on Holyrood's powers should themselves be interpreted restrictively, the court rejected this approach, holding that the right to self-determination was not in issue here. The right only existed in situations of former colonies, or where a people was oppressed under foreign occupation, or were denied access to government. As with Quebec, which had been held by the Canadian courts not to meet these conditions, the same was true of Scotland. Nor did the allocation of powers between the United Kingdom and Scotland under the Scotland Act infringe the principle of legality.