Leah Trueblood

What is the purpose of the referendum proposed in the Scottish Independence Referendum Bill? Is it, as s 1 (1) of the Bill itself says ‘to ascertain the views of the people of Scotland?’ Or is the aim – either directly or indirectly – the dissolution of the United Kingdom? If the purpose is only to ascertain the views of Scots, the Lord Advocate suggests, then it cannot impact reserved matters. Her suggestion is that the referendum cannot impact reserved matters because the referendum is merely advisory, and so it can have no legal effect if it has no legal impact. This post argues that it is right to construe the purpose of the Bill narrowly, as only ascertaining the views of Scots. Even the narrow purpose of ascertaining the views of Scots, however, still relates to reserved matters. To see why, it is necessary to distinguish between the outcome of a referendum, and the effect of putting a question to a referendum. While it is right to say that the outcome of an advisory referendum does not automatically have legal impact, it does not follow that holding a referendum has no effect. So, even if the purpose of this referendum is only to ascertain the views of Scots, legislating for the purpose of asking that question is beyond the legislative competence of the Scottish Parliament.

This post has three parts. It begins by explaining the context of the Referendum Bill. The second section explains why it is right to construe the purpose of the Bill narrowly, but the third and final section argues that the purpose of an advisory referendum to ascertain the views of Scots still relates to reserved matters.

What is the purpose of the Scottish Independence Referendum Bill?

S 2(2) of the Scottish Independence Referendum Bill holds that the next Scottish independence referendum question will be: ‘Should Scotland be an independent country?’ The forthcoming reference to the Supreme Court asks if putting this question to a referendum relates to any of the reserved matters identified in Schedule 5 of the Scotland Act 1998, namely the Parliament of the United Kingdom (1c) and the Union of the Kingdoms of Scotland and England (1b). If it does relate to these matters, then s 29(2)(b) of the Scotland Act says that holding such a referendum is outside the legislative competence of the Scottish Parliament.

In answering the question of whether a subject ‘relates’ to a reserved matter, s 29(3) of the Scotland Act 1998 holds that ‘the question of whether a provision of the Scottish Parliament relates to a reserved matter is to be determined…by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.’ Purpose ‘may extend beyond its legal effect, but is not synonymous with motivation.’ Legal Continuity (Scotland) Bill [27]. To satisfy this requirement, the relationship to reserved matters must by more than ‘loose or consequential’ Continuity (Scotland) Bill [27]. Ascertaining the purpose of the Bill, as Stephen Tierney rightly argues, requires distinguishing between different kinds of referendums.

Advisory and self-executing referendums

Different kinds of referendums have been held in the United Kingdom. Some are advisory, where the legal outcome is inchoate, and some are self-executing, where the legal outcome is clear. Unlike other jurisdictions such a Australia the United Kingdom does not distinguish between advisory and binding referendums. This creates a scenario where, as Stephen Tierney correctly argues, there is a constitutional convention that referendums will have legal effect, but, as he again rightly argues, Miller I held that the outcome of the advisory referendum enabled by the European Union Referendum Act 2015 had no automatic legal impact, albeit great ‘political significance’ [124].

The Lord Advocate suggests that the advisory character of the referendum proposed by the Scottish Independence Referendums Bill means it cannot relate to reserved matters: it cannot have legal effect if it does not have legal impact. The Advocate General pushes back on this claim, arguing that the impact of holding a referendum is hardly academic:

“…it is, of course, right that the outcome of the referendum provided for by the Draft Bill has no legal effect: it is not ‘self-executing’. But nor can it credibly be suggested that the outcome of the referendum will be ‘advisory’ in the sense of being treated as a matter of academic interest only: a referendum is not, and is not designed to be, an exercise in mere abstract opinion polling at considerable public expense. Were the outcome to favour independence, it would be used (and no doubt used by the SNP as the central plank) to seek to build momentum towards achieving that end: the termination of the Union.”

This reply from the Advocate General also speaks to the motivation of the Scottish Parliament in legislating for the referendum, which is taken to be the dissolution of the Union. There are of course very good contextual reasons for thinking this is the case given the SNP’s legislative programme. The claim that the aim of the Bill is the dissolution of the United Kingdom speaks, however, to its motivation, which is distinct from, and insufficient to, establishing purpose. The final part of this post argues that even if the purpose of the Bill is construed narrowly, as ascertaining the views of Scots, this still relates to the reserved matter of the Union of the Kingdoms of Scotland and England and is therefore beyond the legislative competence of the Scottish Parliament.

Construing purpose narrowly

While there are good contextual reasons to think the purpose of the Scottish Referendum Bill is the dissolution of the United Kingdom, it is better to take the Bill at face value as only ascertaining the views of Scots. The key to determining purpose, according to Bloomsbury International Ltd. v Department for Environment Food and Rural Affairs [10-11] should be the wording of the statute. The question then, of course, is how narrow or broadly to construe the purpose. Could the purpose be, for instance, to establish the democratic right of the Scottish people to decide this issue, particularly given the ‘permanence’ of the Scottish Parliament as established by the Scotland Act? Or perhaps the purpose is to enforce democracy, given the repeated refusals of the UK government to grant a section 30 order?

Given the Bill itself identifies its purpose, the best approach is to take it as narrowly as possible: only to determine what Scots think about the question of independence. It is detrimental to the devolution settlement to unnecessarily ascribe broad motivations to the Bill. In any event, even putting the question to a referendum is outside the Scottish Parliament’s legislative competence.

Ascertainment as impacting reserved matters

It is useful to distinguish between two points at which holding a referendum may relate to reserved matters. The outcome of a referendum, in the form of millions of votes, may have legal impact but the very decision to hold a referendum – even an advisory referendum – relates to the reserved matter of the Union of the Kingdoms of England and Scotland as well. Even asking such a question has more than a ‘loose or consequential’ relationship to a reserved matter. This is the case even though holding a referendum is not, in general, a reserved matter. To see why, imagine two other scenarios where the effect of asking a question is different from the effects of deciding.

Imagine I have a mortgage with a bank for 25 years. Suppose the mortgage says it cannot be terminated without the bank’s approval. Imagine I put the question to my friends: ‘should I terminate my mortgage?’ The effect of asking this question, and getting answers from my friends, has more than a ‘loose and consequential’ relationship with my mortgage: that is what I am asking my friends about. Even though my friends’ answers have no impact on the mortgage, and even though I cannot terminate the mortgage unilaterally, that does not mean their views have no effect on a decision about the mortgage.

A second example of this kind is found in the Advocate General’s submissions. It is argued there that Scotland could not hold a referendum on other reserved matters, such as the monarchy. This is a helpful example because it would be possible to devise an advisory referendum which would have no impact on ending the monarchy in Scotland, but that does not mean such a referendum would not be related to that matter or would have no effect on it. Even asking that question has effect, as it would in the case of the Scottish Independence Bill, by triggering the relevant provisions of the Referendums (Scotland) Act 2020. Calling a referendum initiates legal machinery which puts a reserved question to voters. While the outcome of such a referendum might not have a direct and close relationship with ending the monarchy in Scotland, that is not the relevant question. The better questions are these: does this hypothetical referendum have the purpose of asking about ending the monarchy? And is the matter of monarchy reserved? Given the answers to these questions are yes, and yes, such a Bill must be beyond the legislative competence of the Scottish Parliament. The same is true of the Scottish Independence Referendum Bill.

The Advocate General suggests at [115] of her written case that the wording of the Scotland Act suggests that, in determining the purpose of a provision, the question of subject matter is secondary to the question of effect. Recall, s 29(3) says ‘the question of whether a provision of the Scottish Parliament relates to a reserved matter is to be determined…by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.’ While it is true that the statute does not mention or foreground ‘subject matter,’ the statute is written to be as expansive as possible allowing regard for ‘among other things’ in ‘all circumstances.’ Asking a question which so squarely concerns a reserved matter is enough to satisfy to satisfy the open-ended requirements of s 29(3), particularly when asking such a question does have an effect anyway. Schedule 5 itself refers to reserved matters, not to the effect of reserved matters.

Conclusion

This post has argued that holding a referendum to ask a question about a reserved matter has an effect on that matter, even if the referendum’s outcome has no direct or indirect impact on it. Effect and impact are not synonymous. Asking a question has an effect in two ways. First, it has the legal effect of initiating the machinery to hold a referendum. Second, and more importantly, on the subject matter itself. Asking Scots what they think about the Union of the Kingdoms of Scotland and England has more than a loose or consequential connection to the reserved matter of the Union of the Kingdoms of Scotland and England. The reserved matter is the question being asked.

The author is grateful to Alison Young and Mike Gordon for very helpful comments on an earlier draft of this piece.

This article first appeared on the UK Constitutional Law Association Blog.