Introduction

The United Kingdom Supreme Court delivered a landmark judgment on November 23, 2022, addressing whether the Scottish Parliament possesses the authority to legislate for holding a referendum on Scottish independence under the Scotland Act 1998. This case, referenced by the Lord Advocate, challenged the legislative competence of the Scottish Parliament in initiating another referendum on independence without an Order in Council from the UK Government.

The key issues revolved around the definition of "reserved matters" within the Scotland Act, the scope of devolution, and the extent of the Scottish Parliament's legislative powers. The parties involved included the Lord Advocate for Scotland and the Advocate General for Scotland representing the UK Government, with the Scottish National Party intervening to support the Scottish Government's position.

Summary of the Judgment

The Supreme Court concluded that the proposed Scottish Independence Referendum Bill, which seeks to hold a referendum asking "Should Scotland be an independent country?", relates to reserved matters as defined in the Scotland Act 1998. Specifically, the Bill pertains to:

• The Union of the Kingdoms of Scotland and England.
• The Parliament of the United Kingdom.

As these matters are reserved, the Scottish Parliament lacks the legislative competence to authorize such a referendum without an Order in Council from the UK Government. Consequently, the court rejected the Lord Advocate's argument that the Bill falls within the devolved powers of the Scottish Parliament.

Analysis

Precedents Cited

The judgment extensively referenced previous cases to inform its decision:

• Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61: Established that reserved matters encompass fundamental constitutional elements, ensuring that matters of UK-wide interest remain under the UK Parliament's jurisdiction.
• In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3: Clarified the interpretation of "relates to" in the context of reserved matters, emphasizing the necessity for a direct and substantial connection.
• Continuity Bill [2018] UKSC 64: Affirmed that the sovereignty of the UK Parliament is a reserved matter, reinforcing the limits of devolved powers.
• Moohan v Lord Advocate [2014] UKSC 67: Highlighted the political significance of referendums, reinforcing their impact beyond mere advisory status.
• R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5: Demonstrated the political weight and practical consequences of referendums despite their non-binding nature.
• Reference re Secession of Quebec [1998] 2 SCR 217: Though a Canadian case, it was cited to elucidate international perspectives on self-determination and secession.

Legal Reasoning

The court employed a structured two-question test to determine whether the Bill relates to reserved matters:

• What is the scope of the subject-matter of the relevant reserved matter?
• Does the provision relate to the reserved matter by reference to its purpose and effect in all circumstances?

Applying this framework, the court found that the purpose and intended effect of holding a referendum on Scottish independence directly impact the Union and the sovereignty of the UK Parliament. Even though the referendum itself is non-binding, its political and symbolic significance constitutes a substantial connection to reserved matters.

Impact

This judgment reinforces the boundaries of the Scottish Parliament's legislative powers, particularly concerning issues that fundamentally alter the constitutional structure of the United Kingdom. It limits the ability of the Scottish Government to unilaterally initiate referendums on independence without explicit consent from the UK Government.

Future attempts by the Scottish Parliament to hold referendums on independence will require either:

• An Order in Council from the UK Government modifying the reserved matters, or
• A legislative change by the UK Parliament.

This decision underscores the importance of intergovernmental negotiations and the role of the UK Supreme Court in adjudicating devolution issues.

Complex Concepts Simplified

Reserved Matters

Reserved matters are subjects of legislation that remain under the control of the UK Parliament, even after devolution. They include critical areas like the Union between Scotland and England, the Parliament of the United Kingdom, and the sovereign functions of the UK government.

Devolution Issue

A devolution issue pertains to whether a particular legislative provision or action falls within the devolved powers of a regional parliament (like Scotland's) or remains under the authority of the central UK Parliament.

Legislative Competence

Legislative competence refers to the authority of a legislative body to enact laws within certain areas. In this context, it determines whether the Scottish Parliament can lawfully pass a referendum bill without overstepping into reserved matters.

Order in Council

An Order in Council is a form of legislation in the UK made by the Queen on the advice of the Privy Council. It can be used to modify the scope of reserved matters, thereby allowing the Scottish Parliament to legislate on issues previously outside its competence.

Conclusion

The Supreme Court's judgment in Reference by the Lord Advocate unequivocally establishes that the Scottish Parliament cannot unilaterally legislate for a referendum on Scottish independence without addressing reserved matters as defined by the Scotland Act 1998. This decision maintains the constitutional integrity of the United Kingdom by upholding the delineation of powers between the central and devolved governments.

For the Scottish Government, the path forward necessitates securing an Order in Council from the UK Government or pursuing legislative amendments at the UK Parliament level to legitimize another independence referendum. This ruling emphasizes the Supreme Court's pivotal role in interpreting devolution statutes and ensuring that legislative actions remain within the bounds of established constitutional frameworks.