UK Supreme Court asked to determine legality of Indyref2

Nicola Sturgeon is gearing up to ask the Scottish public to vote on the question of Scottish independence for a second time.

On 28 June 2022, the First Minister published a draft Scottish Independence Referendum Bill and set out the SNP’s route map to holding a legal, constitutional second referendum on the question of Scottish independence. The proposals echo those of 2014. Subject to Electoral Commission approval, the same question would be used: “Should Scotland be an independent country?” and the referendum would be consultative, not self-executing; meaning that a Yes outcome would require further legislation before being implemented.

The key question from a legal and constitutional perspective is: what is the legal basis for holding a second referendum on Scottish Independence?

Legal basis for a second referendum on Scottish Independence

The starting point is that (following a referendum in 1997), the Scotland Act 1998 made provision for a Scottish government of ministers and a Scottish Parliament and set out the parameters for powers devolved to them. Rather than specifying which matters are devolved to the Scottish Parliament (as happened in relation to Wales), the Act instead specifies those matters that are reserved to the UK Parliament.  Anything not reserved by the Scotland Act to the UK Parliament are devolved to the Scottish Parliament. The Scottish Parliament has primary legislative powers, i.e. the power to pass Acts, on any devolved matter.

Schedule 5 to the Scotland Act sets out the matters that are reserved to the UK Parliament.  One of those matters includes the constitution.  This means that the Scottish Parliament cannot pass primary legislation that would alter the constitution of the UK or Scotland.  The 2014 referendum on the question of whether Scotland should become an independent country was held with the consent of the UK Government.  The current Prime Minister has indicated that no such consent will be given for the independence referendum proposed to be held in 2023.

In a letter to the Prime Minister dated 28 June, the First Minister acknowledged the UK Government’s position that consent for a second referendum will not be granted and there will be no section 30 order (the formal process providing consent) to form the legal basis of a referendum as there was in 2014. On 6 July the prime Minister replied to the First Minister confirming that he could not agree to return to the question of independence for Scotland at this time.  This means that, if the referendum is to proceed, the SNP must find an alternative legal basis to hold the planned vote.

To that end, Scotland’s Lord Advocate has exercised her power under paragraph 34 of schedule 6 to the Scotland Act 1998 to make a Reference to the Supreme Court requesting a decision on whether the provisions in the Bill are within the legislative competence of the Scottish Parliament in the absence of a section 30 order. The question for the Court is “whether the holding of an advisory referendum on independence would relate to reserved matters”, the answer to which, the Lord Advocate states, will determine whether the Scottish Parliament can debate and vote upon the Bill which is the subject of a manifesto commitment of the current Scottish Government.

That Reference has been confirmed as received by Supreme Court, which released a statement advising that the first step is for the court’s President, Lord Reed, to decide whether there are any preliminary matters to be addressed, when the case will be heard, how many Justices will consider the Reference, and which Justices will sit on the bench.

The Advocate General for Scotland, as the senior Law Officer in Scotland for the UK Government, confirmed on 12 July 2022 that he intends to formally become a party to the case and is anticipated to present a preliminary legal argument that the Reference has been made to the UK Supreme Court prematurely.

Even if the Reference is fast-tracked due to its constitutional significance it will not be determined before the end of the UKSC’s summer term (ending on 29 July) so it is expected that the earliest that it can be heard is October 2022.

Key considerations for the UKSC

1. Timing – is the Bill hypothetical?

The first issue is likely to be with the timing of the Reference. The Supreme Court is being asked to consider a draft Bill that has not yet been introduced to the Scottish Parliament, never mind been passed in its final form. There is, therefore, a risk that the Reference will be considered premature as any decision would be hypothetical or advisory. In Keatings v Advocate General, the Inner House found that independence campaigner Martin Keatings’ action seeking a judicial determination of competence for the Scottish Parliament to legislate for a second referendum was hypothetical and premature. In particular, the court found that “A draft Bill has no legal status…” and “Only a provision of an Act can be outwith legislative competence (Scotland Act 1998 s 29(1)). The contents of a Bill cannot be, since a Bill has no legislative force.”

It has been suggested that the announcement of the date for the proposed referendum makes the proposed referendum and, consequently, the Reference less hypothetical; but at least at first blush, this does not appear to directly address the problem identified in the Keatings case on the legal status of the draft Bill in the context of the question for the Court. The UKSC may think differently but this is certainly a hurdle for the Scottish Government to overcome.

2. Does the draft Scottish Independence Referendum Bill “relate to” the Union of Scotland and England?

The substantive issue to be determined is then whether the draft Scottish Independence Referendum Bill “relates to” “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom” (Sch 5, Part I, para 1(b) and (c) of the Scotland Act 1998), having regard to its effect in all the circumstances.

Again, referring to the Court of Session’s decision in Keatings, based on prior case law, it was agreed that the legislation would relate to these reserved matters if it had “more than a loose or consequential connection with them“. Although stopping short of expressing an opinion on how close that connection was, the court said that “Viewed in this way, it may not be too difficult to arrive at a conclusion”.

If the UKSC accepts that it should determine the Reference it will consider the terms of the Scotland Act 1998, existing case law and submissions made in relation to the draft Bill by the Lord Advocate on behalf of the Scottish Ministers, The Advocate General for Scotland on behalf of the UK Government and any other relevant parties (it is possible for other interveners to ask to be heard) before making a determination.

What happens if the UKSC rejects the Reference?

Given the difficulties facing the Reference to the UKSC, the First Minister’s speech set out a back-up plan.

It would not be straightforward to introduce the Bill without a UKSC ruling that it is competent to do so. First, the Bill would require to be certified by the Lord Advocate as competent before it could be introduced to the Scottish Parliament. The terms of the Reference confirm that: “the Lord Advocate does not have the necessary degree of confidence” that a Bill would be within devolved competence and would not therefore give that backing.

Secondly, assuming the Bill did succeed in passing through the Scottish Parliament, the UK Government would almost certainly use section 33 of the Scotland Act 1998 to refer the matter to the Supreme Court after the legislation was passed. It is also possible that one or more private individuals would seek to judicially review the legislation.

Rather than risk the legislative route without a UKSC ruling to support it, the SNP has announced plans instead to fight the next UK general election on the single issue of independence, making it a “de facto referendum”.

When will the second referendum on Scottish Independence be held?

If the UKSC finds that the draft Scottish Independence Referendum Bill is within the legislative competence of the Scottish Parliament then the Bill will be introduced to the Scottish Parliament immediately following that decision (likely late 2022/early 2023) and passed with sufficient time for the referendum to take place on 19 October 2023.

If the UKSC either refuses to consider the Reference, or finds that the Bill is not within the legislative competence of the Scottish Parliament, then (at least according to the pro-independence parties in Scotland) the next opportunity to vote on whether or not Scotland should be an independent country would come at the next UK general election. The legal issues arising in that context are numerous.  The latest date for the next UK general election is 24 January 2025. Given recent political turmoil, it might be sensible not to speculate as to what might transpire next week never mind in the course of the next 2 ½  years.

Next steps

Harper Macleod LLP’s public law team will keep a close watch on all developments with this case and wider constitutional and public law issues relevant to Scotland.

Meantime, please contact a member of our team for advice on constitutional and public law, judicial review or insights into how the question of Scottish independence or other constitutional and public law issues may impact you and/or your organisation.