In a statement last week, Scotland’s First Minister Nicola Sturgeon announced she has referred the question of whether a referendum on Scotland's independence is within the Scottish Parliament's powers to the UK Supreme Court. In this blog, Alan Page, University of Dundee and CCC Associated Fellow, asks whether the Supreme Court will accept that reference and answer the question.
Does the Scottish Parliament have the power to legislate for a referendum on Scottish independence?
This is the question that was much discussed but never resolved once and for all before the 2014 independence referendum.
In the absence of a section 30 order granting the Scottish Parliament the power to hold a referendum, as happened before the 2014 referendum, it is a question that can only be settled by the courts.
Before the 2014 independence referendum there was an unwillingness on both sides of the argument to leave the matter to judicial chance – hence the section 30 order giving the Scottish Parliament a strictly time-limited power to legislate for an independence referendum.
Nearly a decade later, that unwillingness to leave matters to the courts has largely disappeared.
On the Unionist side because recent judicial decisions have underlined the limits to the Scottish Parliament’s legislative competence – it is not a sovereign Parliament like Westminster – making unionists less anxious about the likely outcome and possibly less willing therefore to put the matter beyond judicial challenge.
On the Nationalist side because the costs of doing nothing – not least in terms of fracturing support - undoubtedly outweigh the costs of an unfavourable outcome. It avoids the charge of being ‘frit’ which was levelled at Alex Salmond before the 2014 independence referendum. As for the risk of an unfavourable outcome … ‘well what else did you expect?’
Recognising the inevitability of a judicial challenge to her proposed independence referendum legislation the First Minister is now seeking to turn that to her advantage by referring, through the Lord Advocate whose decision it is, the question of whether the proposed legislation would be within the Scottish Parliament’s legislative competence to the UK Supreme Court.
From a Nationalist perspective this sounds like a case of ‘head I win, tails you lose’.
Heads, the Supreme Court says the proposed legislation would be within the Scottish Parliament’s competence, in which case it would quickly be enacted and a legally watertight referendum held on 19 October 2023. The ‘gold standard’ will have been met.
Tails, the Supreme Court says the legislation is outwith the Scottish Parliament’s legislative competence, in which case the denial of the ‘sovereign right of the Scottish people to determine the form of government best suited to their needs’, the denial of their ‘right to democratic self-determination’, is ‘the fault of Westminster legislation’, and the First Minister will fight the next UK general election on the single issue of Scotland’s right to choose.
A question that arises listening to the First Minister’s statement, however, is whether the UK Supreme Court will allow itself to be used in this way. The mechanism by which the Supreme Court is to be asked or seized of the question is by a reference under Schedule 6 to the Scotland Act 1998, which empowers the Lord Advocate to refer a ‘devolution issue’ to the Supreme Court. The definition of a ‘devolution issue’ includes ‘a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament’, not whether a Bill or any provision of a Bill which has not yet been enacted would be within the Scottish Parliament’s legislative competence. Had it been intended that the Lord Advocate should be able to refer the question of a Bill’s legislative competence to the Supreme Court the Scotland Act might have been expected to say so.
One reason it may not do so is because the Scotland Act provides its own scheme for the scrutiny of the legislative competence of Bills, a scheme in which as it happens the Lord Advocate plays a vital role. As the Scottish Government’s chief legal adviser it falls to the Lord Advocate to clear Scottish Government Bills for introduction in the Scottish Parliament. Under the Scotland Act a Government Bill cannot be introduced in the Parliament without a ministerial statement that its provisions would be within the legislative competence of the Parliament (Scotland Act 1998, s 31(1)), and a minister cannot make such a statement without the Lord Advocate’s clearance. Were the Lord Advocate not to be satisfied that the Scottish Independence Referendum Bill was within the Scottish Parliament’s legislative competence, and the weight of legal opinion is against the Scottish Parliament having the power to legislate for an independence referendum, the Bill could not be introduced and that would be an end of the matter until such time as the Scottish Parliament was granted the power to legislate for a referendum.
If on the other hand the Lord Advocate is satisfied that the Bill would be within the Scottish Parliament’s legislate competence, and the Bill was introduced and passed, there then would be a four-week holding period during which it would be open to the Law Officers to refer the question of its legislative competence to the Supreme Court (Scotland Act 1998, s 33). It may be therefore that the Supreme Court will see no good reason why it should answer the question just yet.
Alan Page is Emeritus Professor of Public Law at the University of Dundee.
Originally written for the Daily Mail.