Reference by the Lord Advocate [2022] UKSC 31 (EXTRA) Flashcards
What does SA98, s31 set out?
Requires Scottish Ministers or other MSPs introducing a Bill into the Scottish Parliament to state that, in their view, the Bill is within the SP’s legislative competence.
Scottish Ministerial Code states that, in the case of Ministers, this must be made on the basis of the Lord Advocate’s legal advice.
What was unusual about the Lord Advocate’s reference?
Reference was made before any such Bill had been introduced into the Scottish Parliament.
SA98 s33 provides that the Law Officers may refer Holyrood legislation to the Supreme Court after it has been enacted (but before it comes into force).
Here, the LA relied instead on SA98, Sched6, para34, which provides that the Law Officers “may refer to the Supreme Court any devolution issue which is not the subject of proceedings”.
In the Lord Advocate’s Reference, was it held to be a devolution issue?
For the UK Government, the Advocate General for Scotland argued that this was an inappropriate use of the Sched6 para34 power to refer…
The time to rule on the competence of Bill was after it had been passed (under SA98 s33) not before it had even been introduced.
Was generally expected that the court would dismiss the reference on this ground and for this reason.
However, court unanimously ruled otherwise, holding that this was an appropriate use of the Sched6 para34 power.
What does the court’s decision on the appropriateness of the Lord Advocate’s Reference mean for the future?
In future, all Law Officers will be able to refer proposed Holyrood Bills to the Supreme Court to check they do not relate to reserved matters before those Bills have been introduced into the Parliament.
However, UKSC reserves a discretion not to accept any such reference, meaning that the process is unlikely to be abused
(NB only the Law Officers may make such references— members of the public may not do so).
What were the arguments that an Indyref Bill would NOT relate to reserved matters?
That the Bill’s purpose is to seek the opinion of the people of Scotland (rather than, e.g., to terminate the Union).
That the legal effects of any Indyref would be, in the Lord Advocate’s word, “nil” (it would not and could not of itself change the law, just as the 2016 Brexit referendum did not of itself change the law). This is sometimes referred to as a referendum being “advisory” only.
What were the arguments that an Indyref Bill WOULD relate to reserved matters?
Both the Union and the Parliament of the United Kingdom are reserved matters (SA98, Sched5).
The purpose of an indyref would be that it is a means to achieve independence (and independence would clearly relate both to the Union (by ending it) and to the Parliament of the United Kingdom (not least by terminating its sovereignty as regards Scotland).
The effect “in all the circumstances” (s29(3)) cannot mean only its narrow legal effect—whatever the result of such a referendum it would have very significant effects as regards Scotland’s (and potentially the UK’s) constitutional future.
What did the court rule of reserved matters in the Lord Advocate’s Reference?
The court unanimously ruled that the Bill would relate to the reserved matters of the Union and the Parliament of the United Kingdom.
Noted that the purpose of these reservations was that “matters in which the United Kingdom as a whole has an interest should continue to be the responsibility of the UK Parliament at Westminster” (para 70). As such, “measures which question the integrity of the United Kingdom” are reserved (ditto).
Reiterated its case law that “relates to” means that a provision must have “more than a loose or consequential connection” with a reserved matter (paras 71, 72).
Examining the purpose of a Bill requires the court to identify “what that Bill is really about” (see Imperial Tobacco); here, the Referendum Bill is really about making a decision on whether the Union should be terminated (para 77).
Likewise the Bill’s effect: whatever its outcome an indyref would have “important political consequences relating to the Union and the UK Parliament” (para 81).
The SNP were granted the opportunity to intervene in the Lord Advocate’s Reference case, what did they say?
The SNP made written submissions only; these focused on the argument that the Scotland Act should be read and given effect in the light of the international legal principle of self-determination.
This is similar to an argument considered by the Supreme Court of Canada in the Quebec Secession Reference.
Like the SCC, the UKSC also came to the conclusion that, as a matter of law, the principle of self-determination applies only to colonies, where a people is oppressed.
Neither Canada nor the UK oppresses or colonises its provinces or constituent nations and therefore the principle is of no application in the cases of Quebec or Scotland.
What conclusions may be drawn from the 2022 LA’s Reference case?
There can be no lawful indyref in Scotland unless and until Westminster either enacts one (under Act of Parliament) or confers on the SP the power to enact one (by, e.g., a s30 Order as occurred for the 2014 indyref).
This does not mean that there is no constitutional, lawful or democratic path to independence, for those who wish to pursue it.
This was recognised by the First Minister in her statement following the UKSC judgment (likewise, Alex Salmond in 2012: “Scotland is not oppressed and we have no need to be liberated”).
