Devolution issues under the Scotland Act 1998, Reference by the Lord Advocate

Factual and Procedural Background

The Scottish National Party has governed “The City’s” devolved administration since 2007 and maintains a policy of achieving Scottish independence. A 2014 independence referendum was authorised after “Company A” (the UK Government) consented to an Order in Council that temporarily expanded the Scottish Parliament’s legislative competence. The referendum returned a majority against independence and the Order in Council expired.

“Company A” declined a further section 30 Order that would again confer competence to hold a referendum. Consequently, the Scottish Government drafted a Scottish Independence Referendum Bill (“the proposed Bill”). Before introduction, section 31(1) of the Scotland Act 1998 requires the member in charge to certify that the Bill is within competence. The Lord Advocate concluded she could not give that clearance with sufficient confidence and, under paragraph 34 of Schedule 6, referred a single legal question to the Supreme Court.

The Advocate General for Scotland raised two preliminary objections: (1) whether the referred question is a “devolution issue” and (2) whether the Court should exercise discretion to decline the reference. Only if both objections failed would the Court consider the substantive competence issue.

Legal Issues Presented

1. Is the Lord Advocate’s question a “devolution issue” within paragraph 1(f) of Schedule 6 to the Scotland Act 1998?
2. If it is a devolution issue, should the Supreme Court accept or decline the reference in the exercise of its inherent discretion?
3. If the Court accepts the reference, does the provision in the proposed Bill asking “Should Scotland be an independent country?” relate to the reserved matters of (i) the Union of the Kingdoms of Scotland and England and/or (ii) the Parliament of the United Kingdom, thereby placing it outside the Scottish Parliament’s legislative competence?

Arguments of the Parties

Lord Advocate’s Arguments

• The referred question falls within paragraph 1(f) (“any other question arising by virtue of this Act about reserved matters”) and is therefore a devolution issue.
• A pre-introduction reference is permissible; section 33 scrutiny is not exhaustive, and Schedule 6 creates a “sweeping-up” jurisdiction.
• The Court should accept the reference because the matter is of exceptional practical importance; the Bill cannot progress without authoritative guidance.
• The referendum would be non-self-executing; its purpose is merely to ascertain voters’ views, conferring only indirect or consequential effects on the Union and the UK Parliament and thus does not “relate to” reserved matters within section 29(2)(b).
• The phrase “relates to” requires a close and direct connection; a consultative vote lacks such proximity.

Advocate General’s Arguments

• Paragraph 1(f) does not capture questions about draft Bills; legislative scrutiny is confined to the post-passage mechanism in section 33.
• Allowing pre-introduction references would create bifurcation, undermine statutory time-limits and invite duplicative litigation.
• The Court should decline the reference because the Bill may change, lacks accompanying material (policy memorandum, etc.) and other competence questions would remain.
• A referendum on independence has more than a loose or consequential connection to the Union and the sovereignty of the UK Parliament; its obvious purpose is to advance secession.
• The foreseeable political effect of a “yes” vote would pressure Parliament to dissolve the Union, directly implicating the reserved matters.

Intervener (Scottish National Party) Arguments

• The Scotland Act should be interpreted compatibly with the international law right of self-determination; a narrow construction of “relates to” preserves that right.
• Applying the principle of legality, any limitation on the Scottish electorate’s ability to express its will must be clearly imposed; such clarity is absent.

Table of Precedents Cited

Court's Reasoning and Analysis

Jurisdiction (Question 1): Paragraph 1(f) is a “sweeping-up” provision. Its broad wording—“any other question arising by virtue of this Act about reserved matters”—captures the Lord Advocate’s enquiry regarding legislative competence before a Bill is introduced. The Court held that, while section 33 governs post-passage references, it does not preclude pre-introduction references under paragraph 34. Practical concerns about bifurcation or duplication can be managed through judicial discretion.

Discretion (Question 2): Distinguishing the Northern Ireland references, the Court found the present case exceptional: the question has arisen, is determinative of governmental action, the draft clause is brief and unlikely to change, and no parallel proceedings exist. Accepting the reference promotes legal certainty without over-extending judicial resources.

Merits (Question 3): Applying the two-stage test:

1. Reserved matters encompass the constitutional Union and the sovereignty of the UK Parliament.
2. The purpose of the proposed Bill is to hold a lawful referendum on independence. Its practical and political effects, though not legally dispositive, are significant and integral: a democratic mandate would either bolster or undermine the legitimacy of the Union. Accordingly, the provision has more than a “loose or consequential” connection with both reserved matters.

The Lord Advocate’s arguments that the Bill is merely advisory, that only direct legal effects matter, and that “self-determination” mandates a narrower reading were each rejected. The Court emphasised that political consequences are relevant under section 29(3), that international law on self-determination is not engaged, and that the principle of legality is unaffected.

Holding and Implications

HOLDING: The proposed clause asking “Should Scotland be an independent country?” RELATES TO RESERVED MATTERS (the Union and the Westminster Parliament) and therefore lies outside the Scottish Parliament’s legislative competence.

Implications: The Scottish Parliament cannot pass the drafted Independence Referendum Bill without further authorisation from the UK Parliament (e.g., a section 30 Order or primary legislation). The judgment clarifies the constitutional boundary between devolved and reserved powers but does not create new doctrinal tests; it applies established principles to a novel factual scenario, providing authoritative guidance for future legislative initiatives on constitutional referendums.