By Alison L Young
Sir David Williams Professor of Public Law, University of Cambridge
On 28 June 2022 Nicola Sturgeon gave an important statement on her plans to hold a second Scottish Independence Referendum. Will these steps work?
Does the Scottish Parliament have the power to hold an independence referendum?
The simple answer to this question is that ‘nobody knows’. The Scottish Parliament has limited powers. It has broad powers to legislate. However, Scotland cannot enact legislation on matters that are reserved to the UK Parliament. Constitutional matters are reserved to Westminster. This would seem to suggest that the Scottish Parliament cannot legislate to hold a referendum on Scottish independence as this is a constitutional matter.
However, it could also be argued that holding an independence referendum does not ‘touch on’ a constitutional matter. As the Scottish First Minister set out, her plan to hold a referendum on Scottish Independence would only be ‘consultative’. This is similar to the Brexit referendum and the first Scottish Independence referendum.
Even if the people of Scotland voted in favour of independence, neither the Scottish nor the Westminster government would be legally required to grant independence to Scotland. But, as we saw from the Brexit referendum, a direct expression of the ‘will of the people’ can be hard to ignore.
The arguments as to whether the Scottish Parliament can legally enact legislation to hold an independence referendum are finely balanced. We would only know the answer if a case came before the Supreme Court. The Supreme Court would decide this by looking at the provisions of the Scotland Act 1998.
So how can Scotland hold a referendum?
Scotland can ask the Westminster Government to specifically grant the power to the Scottish Parliament to hold a referendum. We call this a section 30 Order as it is enacted under section 30 of the Scotland Act 1998. This is how the first independence referendum took place.
Nicola Sturgeon stated that she will ask Boris Johnson, the UK Prime Minister, to make a section 30 Order. However, this is a decision for Boris Johnson. He has indicated in the past that he thinks that an independence referendum should only take place ‘once-in-a-generation’. The last independence referendum took place in 2014. So, it is unlikely that he will make a section 30 Order.
Section 30 merely empowers an Order to be made. There is nothing in this provision setting out when the Prime Minister may or may not make an Order. So, it is hard to see how the First Minister could bring a legal action to challenge a refusal to make a section 30 Order.
What else can Scotland do?
Nicola Sturgeon also stated that she had asked the Lord Advocate – who provides legal advice to the Scottish Government – to exercise her power to refer a ‘devolution issue’ to the Supreme Court. The Lord Advocate decided that she would refer this matter to the Supreme Court, and so court papers have been filed with the Supreme Court.
To understand how this works, we have to look at a different part of the Scotland Act 1998 – paragraph 34 of Schedule 6. This provision states that ‘The Lord Advocate…may refer to the Supreme Court any devolution issue which is not the subject of proceedings’. We know that whether the Scottish Parliament has the power to enact legislation to hold an independence referendum is not ‘the subject of proceedings’ because there is no case before the courts that is looking at this issue. But is this a ‘devolution issue’?
To answer that question, we have to look at paragraph 1 of Schedule 6, which defines ‘devolution issues’ for the purpose of that Schedule. This 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.’ This might seem to mean that whether the Scottish Parliament has to power to enact a Referendum Act to hold an independence referendum is a devolution issue that could be referred to the Supreme Court.
However, there is a potential problem. The Schedule refers to whether an Act of the Scottish Parliament is within competence. However, the Lord Advocate is asking whether a Bill of the Scottish Parliament is within competence. Acts and Bills are not the same thing.
Are there any other arguments that could be made? Paragraph 1 of Schedule 6 also states that ‘any other question arising by virtue of this Act about reserved matters’ is a devolution issue. It could be argued that, asking whether a Bill is within the competence of the Scottish Parliament is a question about reserved matters. After all, we will only know whether Scotland has the power to hold a referendum if we determine the scope of ‘reserved matters’.
This may be a more promising argument. But there are still potential problems. This is because of section 33 of the Scotland Act 1998. This provides a different way of referring issues as to the legislative competence of the Scottish Parliament to the Supreme Court. The Lord Advocate, amongst others ‘may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court’. But this section sets out the timing of when this can be done. This is done after the Bill has been passed by the Scottish Parliament, but before it receives royal assent.
Just to make things even more complicated, section 31 of the Scotland Act 1998 states that the Minister in charge of the Bill must state, when introducing the Bill, that this is within the legislative competence of the Scottish Parliament. Ministers will ask the Lord Advocate for her advice before making this statement.
What do these provisions mean? The simple answer is – we don’t know. It could be argued that the Lord Advocate cannot refer a Bill to the Supreme Court. She has to wait until that Bill has been passed by the Scottish Parliament and then make a reference. After all, the Bill may be modified, and the Supreme Court may be deciding a moot issue – answering a question that may not need to be answered or answering the question too early.
However, this may make it impossible to enact a Bill when the Lord Advocate thinks there are arguments that a Bill is not within competence, so she is not prepared to sign a statement that the Scottish Parliament has the power to act, but where the competence issue is finely balanced. Should the Lord Advocate sign a statement that a Bill is within power, but then refer it to the Supreme Court later on? That would look as if the Lord Advocate were contradicting herself. Should she wait to see if someone else challenges the Bill?
This may delay the Bill becoming an Act and the challenge may not be made. Or should she not sign a certificate, because she is not sure that this is within competence, meaning this issue may never be decided as the Bill would never be put before the Scottish Parliament?
So, will there be an independence referendum on 19 October 2023?
This will depend on a number of factors. Here are some possibilities.
- The Prime Minister makes a section 30 order. This will give the Scottish Parliament the clear legal power to hold an independence referendum. But there is no guarantee that it will be held on 19 October 2023. The Prime Minister may make the order conditional on the referendum being held on a different date.
- The Supreme Court decides it can hear this reference from the Lord Advocate. It then decides whether Scotland has the power to enact an independence referendum and says that this is within the powers of the Scottish Parliament. The Scottish Parliament then enacts the Referendum Act, and a referendum is held on 19 October 2023.
- The Supreme Court decides it can hear this reference from the Lord Advocate but concludes that Scotland does not have the power to hold an independence referendum. The First Minister has stated that, should this be the case, the next election to the Scottish Parliament will be fought by the SNP solely on the issue of whether Scotland should be independent. This would be almost the same as a referendum – but not exactly the same.
- The Supreme Court decides it cannot hear the reference from the Lord Advocate. The Lord Advocate then decides to sign off on a statement that the Referendum Bill is within the competence of the Scottish Parliament, as an argument can be made, and the issue has not yet been decided by the Supreme Court. However, she does so only so that she can later refer this issue to the Supreme Court using her power under section 33 of the Scotland Act 1998. We would then have to wait for a later Supreme Court case to decide this issue – which would have to be expedited through the courts so that it could be decided in time for the 2023 referendum. If the Supreme Court decides that the Scottish Parliament can hold an independence referendum, it will take place on 19 October. If not, then the next election to the Scottish Parliament will be used by the SNP to ask the electorate to decide whether Scotland should be independent.
Will Scotland then be independent?
Not yet. Even if the people of Scotland voted in favour of independence, there would still have to be negotiations between the Westminster Government and the Scottish Government as to how this would be achieved. If the Brexit process has taught us anything, it is that it is not easy to change long-standing legal relations!