REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998

A provision of devolved legislation relates to a reserved matter when, by reference to its purpose and its legal and practical effects in all the circumstances, the connection is more than loose or consequential. A referendum authorised by law has formal democratic legitimacy and significant political effects, even where its result has no immediate legal consequences.

Legislation authorising a referendum on independence therefore relates to the reserved Union and to the sovereignty of the United Kingdom Parliament. It lies outside the Scottish Parliament’s legislative competence under section 29(2)(b) of the Scotland Act 1998. The international law right to self-determination does not confer a unilateral right to secede outside recognised exceptional circumstances, and neither that right nor the principle of legality alters the statutory allocation of devolved powers.

The Scottish Government prepared a Bill authorising a referendum asking whether Scotland should be an independent country. A previous referendum had been enabled by an Order in Council under section 30(2) of the Scotland Act 1998, but the United Kingdom Government did not agree to another such Order.

The Lord Advocate was unable to advise with sufficient confidence that the proposed Bill fell within devolved legislative competence. She therefore referred a question to the Supreme Court under paragraph 34 of Schedule 6. The Advocate General disputed the Court’s jurisdiction and invited it, alternatively, to decline the reference.

The Court had to determine whether the question was a devolution issue, whether it should exercise its discretion to accept the reference, and whether the proposed referendum provision related to the reserved matters of the Union and the United Kingdom Parliament.

1. The Court unanimously accepted the reference and answered that the proposed provision related to reserved matters. Paragraph 1(f) of Schedule 6 to the Scotland Act 1998 is a sweeping-up provision. Its ordinary language encompasses questions about reserved matters arising from proposed legislation before a Bill is introduced. Once a Bill has been introduced, however, section 33 supplies the exclusive reference procedure during the periods specified by section 33(2). The present question was therefore a devolution issue within paragraph 34 jurisdiction.

2. The Court possessed an inherent discretion to decline a reference, but the exceptional circumstances justified deciding this one. The question had already arisen and would determine whether the proposed Bill was introduced. Its material terms were settled, its purpose and effect were apparent, and the risk of material amendment or a further competence reference could be discounted. The reference was neither hypothetical nor an attempt to obtain general legal advice.

3. Section 29(3) requires a structured inquiry: identify the scope of the reserved subject matter, then decide whether the challenged provision relates to it by reference to the provision’s purpose and, among other matters, its effect in all the circumstances. “Relates to” requires more than a loose or consequential connection, but neither a direct connection nor a legal effect upon the reserved matter is indispensable. Purpose may be derived from the promoters’ objective, the provision’s context and its objective effects. Effect includes practical and political consequences as well as legal consequences.

4. The proposed Bill’s purpose was to hold a lawful referendum on whether Scotland should become independent. That question concerned both termination of the Union and cessation of the United Kingdom Parliament’s sovereignty over Scotland. Although the referendum would not be self-executing, statutory authorisation and procedure would give its result democratic legitimacy. Either outcome would carry important political consequences for the Union and the United Kingdom Parliament. The connection with both reserved matters was therefore more than loose or consequential.

5. The international law right to self-determination did not alter that conclusion. The exceptional circumstances in which external self-determination may support unilateral secession—colonial status, oppression or denial of meaningful access to government—did not apply to Scotland. The statutory allocation of powers did not infringe self-determination or the principle of legality. The Court accordingly answered both parts of the reference affirmatively.

This was an original reference rather than an appeal.

• United Kingdom Supreme Court: The Court accepted the Lord Advocate’s reference under paragraph 34 of Schedule 6 to the Scotland Act 1998 and determined that the proposed referendum provision related to the reserved matters of the Union and the United Kingdom Parliament.