I have concluded that it would be legal for the Scottish Parliament to proceed with the referendum independently. I will first draw attention to the relevant sections in the Scotland Act 1998, followed by some analysis and discussion; and then concluded with a broader point about our constitution.
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The relevant aspects of the devolved powers in the Scotland Act 1998
- Section 28(7) - Reserves the UK Parliament's right to legislate for Scotland.
- Section 29 - An Act of the Scottish Parliament is law unless it is beyond its legislative competence.
- Section 30 - The "reserved matters" are listed under six headings: the constitution, political parties, foreign affairs, public service, defence, and treason.
- Section 30(3) - How to determine whether a provision relates to a "reserved matter"
- Schedule 1, paragraph 1(b) - Aspects of the constitution including "the Union of the Kingdoms of Scotland and England"
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The legal criteria
1. Can the Scottish Parliament operate outside its "legislative competence"?
The answer is 'No'. In AXA General Insurance v HM Advocate, Lord Hope laid out the basics by noting that:The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence. It is nevertheless a body to which decision-making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament that, as Lord Bingham said in Jackson, para 9, is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament's power to legislate is not unconstrained. It cannot make or unmake any law it wishes. Section 29(1) declares that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (Emphasis added)
2. Does the purported provision relate to a "reserved matter"?
Having established the need for the Scottish Parliament to operate within its legislative competence, it is then necessary to examine whether the referendum falls under the category of a "reserved matter" (appropriate to the Westminster Parliament). To answer this question, section 30(3) of the Scotland Act requires the court to consider; firstly, the purpose of the provision; and, secondly, "its effect in all the circumstances".
According to Nicola Sturgeon, the legislation would seek to authorise a "consultative, not self-executing" referendum. The problem here is that referenda are not sources of law. They capture a snapshot of opinion at a given time — and that is all they do. At this juncture, it is worth distinguishing between a political purpose and a legal purpose. To my mind, there is no doubt that Nicola Sturgeon and the Scottish National Party are using the referendum for their political ambition of an independent Scotland. But that is quite different from its legal purpose. Under the rules of statutory interpretation, the courts do not imply the ambitions of political parties into statute. The courts instead confine themselves to the language of a provision and interpret them with respect to what Parliament meant it to achieve.
As I mentioned, our constitution does not recognize referenda as a source of law. This is critical. Because it is not as if it were some unilateral declaration amounting to a cessation. Independence is an entirely separate process to a referendum. So, rather than focusing on the purpose of the provision; the more relevant, and perhaps more difficult, question for the Supreme Court is the extent to which the "effect in all the circumstances" of the referendum shifts the legislation into the sphere of a "reserved matter". The logical corollary entails the Supreme Court weighing the ostensible political "effect" - taking into account some concept of causation - to determine whether they amount to a legal "effect".
The political effect would presumably be the strong vote 'yes' in favour of independence which, one assumes, the UK government would be apt to take notice of and which would trigger negotiations leading to independence. However, the earlier Scottish referendum and, to a lesser extent, even the Brexit referendum did not produce a conclusive or very strong vote. The results were too uncertain to make any easy prediction as to its effect. Indeed, in the previous referendum, the sufficiently large 'no' vote would, in my view, militate against any self-assured proposition that a referendum is causative of independence.
Moreover, even if one assumes the strong 'yes' vote for independence; a further assumption is that the UK government will, in fact, proceed with measures enacting Scottish independence. An alternative approach may entail the government undertaking further negotiation, with more devolution to the Scottish Parliament over time - while the UK government withholding final independence.
My point is that there are too many political and pragmatic ifs and what-ifs to deprive the courts from constructing and assembling an alternative plausible political reality, with sufficient certainty, to infer a legal effect.
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The wisdom of uncodified constitutions
What the Scotland Act 1998 demonstrates is how a political and practical issue has been transformed into an academic legal problem through the codification of Scotland's legal system. Our UK constitution is political in character. Disputes, such as these are strikingly rare in our legal system.
On the other hand, in the United States - and especially currently in light of the Dobbs v Jackson Women's Health - the morphing of political issues into legal disputes has forced the US Supreme Court into highly political and controversial subjects. It has resulted in an ugly and nasty undertone in US politics.
The above discussion ought to be warning to the advocates of the UK adopting a written codified constitution.
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