UK Government sets out case against Referendum Bill
The UK Government has published its written submission against the Scottish Parliament having legislative competence to pass the Scottish Government’s draft bill providing for an independence referendum, in answer to the Lord Advocate’s reference to the UK Supreme Court.
It sets out the Advocate General for Scotland’s case both that the court has no jurisdiction to consider the reference ahead of a bill being passed by the the Parliament, and that the bill would be beyond legislative competence in relating to matters reserved to Westminster under the Scotland Act 1998.
Regarding jurisdiction to consider the reference at this stage, the submission points out that the court at present has none of the accompanying material that would be available on a reference prior to Royal Assent, under s 33 of the Scotland Act, which might help inform the court in considering questions of competence. The definition of “devolution issue” in the Act “does not, on its face, include questions about bills, or proposed bills”; and the provision on which the Lord Advocate relies, referring to “any other question”, was considered in the explanatory notes to the Act to relate to issues such as whether an Order in Council relates to devolved competence, or whether a public body is a Scottish public authority with functions only in relation to Scotland, rather than proposed bills.
In addition, the bill potentially raises issues of legislative competence other than those referred by the Lord Advocate, which might have to be considered by a further reference under s 33 after it is passed. The Lord Advocate’s approach would also have the “surprising” consequence that the UK law officers could circumvent the s 33 procedure and make a pre-emptive reference against a legislative proposal thought to be outside devolved competence.
Referring to the Lord Advocate’s objection that a jurisdictional hurdle might mean that the issue could not be brought before the courts, the submission responds: “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. Parliament is unlikely to have intended the time of the Scottish Parliament, or the resources of the Supreme Court on a Schedule 6 reference, to be taken up with matters which the Scottish Government’s own law officer considers to be outside competence.”
This part of the submission concludes: “In the context of the present reference, if the court has jurisdiction it should nonetheless refuse the reference in its inherent discretion to decline to determine abstract and premature issues in connection with a draft of a bill which has yet to be introduced into and yet to be passed by the Scottish Parliament.”
Turning to the substantive issue of whether the proposed bill “relates to” reserved matters, the submission argues that identifying the purpose, and effect, of a provision is a specific statutory concept different from the ordinary exercise of statutory interpretation, and may involve considering both the purpose of those introducing it and the objective effect of its terms – though purpose is not the same thing as political motivation.
The questions to be addressed are, what is the scope of the subject matter of the relevant reserved matter, and by reference to the purpose of the provision under challenge, having regard to its effect, does that provision relate to the reserved matter? If the provision has two or more purposes, one of which relates to a reserved matter, then the provision is outside competence unless that purpose can be regarded as consequential and of no real significance when regard is had to what the provision overall seeks to achieve.
“It is submitted that the Scottish Parliament plainly does not have the competence to legislate for an advisory referendum on the independence of Scotland from the United Kingdom, including in the form adopted in the draft bill”, the submission continues. Whether a referendum were to support or reject independence, it would relate to the reserved matter of the Union, and similarly of the UK Parliament. It is nothing to the point to describe the referendum as “ascertaining the views of the people of Scotland”. Such an exercise “would itself be more than sufficient” to satisfy the test of relating to reserved matters.
In any event, in substance and form, when asking what the draft bill is really about, the answer can only be to hold a referendum on whether the Union should end: it is “the means to achieve the aim of independence itself”.
“It is, of course, right that the outcome of the referendum provided for by the draft bill has no legal effect: it is not ‘self-executing’. But nor can it credibly be suggested that the outcome of the referendum will be ‘advisory’ in the sense of being treated as a matter of academic interest only: a referendum is not, and is not designed to be, an exercise in mere abstract opinion polling at considerable public expense. Were the outcome to favour independence, it would be used (and no doubt used by the SNP as the central plank) to seek to build momentum towards achieving that end: the termination of the Union and the secession of Scotland. It is in precisely that hope that the draft bill is being proposed.”
Background materials to the Scotland Act also suggest that its purpose was to preserve the integrity of the UK.
The Supreme Court is scheduled to hear argument on both jurisdiction and competence on 11 and 12 October.