The Scotland Act 1998 allows the Lord Advocate to “refer to the Supreme Court any devolution issue which is not the subject of proceedings” (para 34 of Schedule 6 SA).

A “devolution issue” includes “any other question arising by virtue of this Act about reserved matters” (para 1(f) of Schedule 6 SA).

The reference concerns the proposed Scottish Independence Reference Bill. The bill makes provision for a referendum on Scottish independence. The question would be “Should Scotland be an independent country?”.

The key issue in the reference is whether the proposed provision relates to reserved matters.

The issues are:

1. Is the question referred by the Lord Advocate a “devolution issue”? If not, it cannot be the subject of a reference under paragraph 34 of Schedule 6, which would mean that the Court does not have jurisdiction to decide it.
2. Even if the question referred by the Lord Advocate is a devolution issue, should the Court decline to determine the reference as a matter of its inherent discretion?
3. Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be “Should Scotland be an independent country?” relate to reserved matters? In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England; and/or (ii) the Parliament of the United Kingdom?

The court will hand down judgment on 23 November.