Devolution issues under the Scotland Act 1998, Reference by the Lord Advocate (Rev1) [2022] UKSC 31

The Lord Advocate referred to the Supreme Court the question whether the Scottish Parliament had power to legislate for a referendum on Scottish independence. The Court held it did not, as such legislation would relate to reserved matters under the Scotland Act 1998, specifically the Union of Scotland and England and the Parliament of the United Kingdom.

Facts

The Scottish Government wished to hold a referendum on Scottish independence without an Order in Council under section 30(2) of the Scotland Act 1998. The Lord Advocate, unable to confirm that a proposed Scottish Independence Referendum Bill would be within the Scottish Parliament’s legislative competence, referred the question to the Supreme Court under paragraph 34 of Schedule 6 to the Scotland Act 1998.

The proposed Bill would ask voters: ‘Should Scotland be an independent country?’ The reference raised the question whether this provision related to reserved matters under Schedule 5, specifically the Union of the Kingdoms of Scotland and England (paragraph 1(b)) and the Parliament of the United Kingdom (paragraph 1(c)).

Issues

Preliminary Issues

1. Whether the question referred was a ‘devolution issue’ capable of being referred under paragraph 34 of Schedule 6.

2. Whether the court should exercise its discretion to decline the reference.

Substantive Issue

3. Whether the proposed Bill related to reserved matters and was therefore outside the Scottish Parliament’s legislative competence.

Judgment

Jurisdiction and Discretion

The Court held that the question was a devolution issue falling within paragraph 1(f) of Schedule 6, which covers ‘any other question arising by virtue of this Act about reserved matters’. The Court rejected the Advocate General’s arguments that this provision was limited to specific non-legislative contexts.

The terms of paragraph 1(f) are very wide: 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.

The Court accepted the reference, finding the circumstances exceptional given the practical importance of the question and the Scottish Government’s stated intention to introduce the Bill in its current form if found competent.

The Reserved Matters Question

Applying section 29(3), which requires determining whether a provision ‘relates to’ a reserved matter by reference to its purpose and effect, the Court found:

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.

The Court emphasised that even an advisory referendum would have significant political consequences:

A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.

Self-Determination Argument

The Court rejected the Scottish National Party’s argument based on the right to self-determination in international law, citing the Canadian Supreme Court’s judgment in Reference re Secession of Quebec:

The international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.

The Court held these exceptional circumstances were inapplicable to Scotland.

Implications

This judgment confirms that the Scottish Parliament cannot unilaterally legislate for an independence referendum without Westminster’s consent. It clarifies the interpretation of ‘relates to’ in section 29(2)(b), confirming that political effects, not merely legal effects, are relevant. The decision also establishes that references under paragraph 1(f) and 34 of Schedule 6 can be made in respect of proposed Bills before introduction, though not after introduction (when section 33 governs). The ruling has profound constitutional significance for the devolution settlement and the future of Scottish independence aspirations.

Verdict: 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?’ does relate to reserved matters. In particular, it relates to (i) the Union of the Kingdoms of Scotland and England and (ii) the Parliament of the United Kingdom. The proposed Bill is therefore outside the legislative competence of the Scottish Parliament.

Source: Devolution issues under the Scotland Act 1998, Reference by the Lord Advocate (Rev1) [2022] UKSC 31