Reference by the Lord Advocate of devolution issues (Scottish Independence Referendum Bill)
The Scottish Parliament has no power to legislate for a referendum on Scottish independence without the agreement of the UK Parliament.
Facts
The Scottish Government wanted to hold a second referendum on whether Scotland should become an independent country, after the first referendum in 2014, which had been held with the agreement of the UK Government under an Order made under the Scotland Act 1998. The UK Government refused to agree to a second referendum. The Lord Advocate referred to the Supreme Court the question of whether a draft Scottish Independence Referendum Bill, which would provide for an advisory referendum, would relate to the reserved matters of the Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom.
Legal principle
The Supreme Court held unanimously that the proposed Bill would relate to reserved matters, so the Scottish Parliament had no power to legislate for the referendum. Although the referendum would be advisory and have no direct legal effect, it would have important political consequences relating to the Union and the UK Parliament, because a clear vote in favour of independence would strengthen the democratic legitimacy of the independence movement. The court also rejected the argument that the principle of self determination in international law gave Scotland a right to hold a referendum, because that principle applies only to colonies, oppressed peoples and similar situations.
Related cases on conventions, ministers and devolution
- Re Allister's Application for Judicial Review [2023] UKSC 5
- Attorney General v Jonathan Cape Ltd [1976] QB 752
- Attorney General v National Assembly for Wales Commission [2012] UKSC 53, [2013] 1 AC 792
- AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868
- Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
- Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61
- Martin v Most [2010] UKSC 10
- Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Reference by the Counsel General for Wales [2015] UKSC 3, [2015] AC 1016
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