What is the ‘purpose’ of the Scottish Independence Referendum Bill? – UK Constitutional Law Association

What is the objective of the referendum proposed in the Scottish Independence Referendum Bill? Is it, as s 1 (1) of the Monthly bill itself suggests ‘to confirm the views of the individuals of Scotland?’ Or is the goal – possibly specifically or indirectly – the dissolution of the United Kingdom? If the reason is only to determine the sights of Scots, the Lord Advocate suggests, then it can’t effects reserved matters. Her recommendation is that the referendum can’t effects reserved matters mainly because the referendum is merely advisory, and so it can have no authorized effect if it has no authorized influence. This publish argues that it is proper to construe the objective of the Invoice narrowly, as only ascertaining the views of Scots. Even the narrow reason of ascertaining the sights of Scots, nevertheless, nonetheless relates to reserved matters. To see why, it is important to distinguish involving the consequence of a referendum, and the effect of putting a concern to a referendum. When it is ideal to say that the outcome of an advisory referendum does not automatically have legal effects, it does not adhere to that keeping a referendum has no impact. So, even if the objective of this referendum is only to verify the views of Scots, legislating for the function of asking that concern is further than the legislative competence of the Scottish Parliament. 

This post has 3 sections. It begins by outlining the context of the Referendums Invoice. This segment is transient due to the fact most of this ground has currently been coated in exceptional recent posts here, here, and here. The second portion describes why it is suitable to construe the objective of the Monthly bill narrowly, but the 3rd and closing section argues that the objective of an advisory referendum to verify the views of Scots even now relates to reserved matters.

What is the Objective of the Scottish Independence Referendum Invoice?

S 2(2) of the Scottish Independence Referendum Bill retains that the following Scottish independence referendum query will be: ‘Should Scotland be an unbiased region?’ The forthcoming reference to the Supreme Court docket asks if putting this concern 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 keeping such a referendum is outdoors the legislative competence of the Scottish Parliament.

In answering the dilemma of no matter if a topic ‘relates’ to a reserved issue, s 29(3) of the Scotland Act 1998 holds that ‘the question of regardless of whether a provision of the Scottish Parliament relates to a reserved make any difference is to be determined…by reference to the purpose of the provision, getting regard (among the other factors) to its influence in all the circumstances.’ Goal ‘may extend outside of its lawful outcome, but is not synonymous with drive.’ Lawful Continuity (Scotland) Monthly bill [27]. To satisfy this need, the marriage to reserved issues must by additional than ‘loose or consequential’ Continuity (Scotland) Monthly bill [27]. Ascertaining the objective of the Monthly bill, as Stephen Tierney rightly argues, involves distinguishing concerning diverse forms of referendums.  

Advisory and Self-Executing Referendums

Various sorts of referendums have been held in the United Kingdom. Some are advisory, where the lawful final result is inchoate, and some are self-executing, where by the lawful result is obvious. Not like other jurisdictions this sort of a Australia the United Kingdom does not distinguish concerning advisory and binding referendums. This produces a scenario exactly where, as Stephen Tierney effectively argues, there is a constitutional conference that referendums will have legal result, but, as he again rightly argues, Miller I held that the result of the advisory referendum enabled by the European Union Referendum Act 2015 experienced no automatic authorized affect, albeit great ‘political significance’ [124].

The Lord Advocate indicates that the advisory character of the referendum proposed by the Scottish Independence Referendums Bill indicates it can not relate to reserved matters: it can not have authorized outcome if it does not have legal affect. The Advocate Standard pushes again on this assert, arguing that the effect of holding a referendum is rarely educational: 

…it is, of study course, correct that the end result of the referendum provided for by the Draft Invoice has no authorized result: it is not ‘self-executing’. But nor can it credibly be instructed that the end result of the referendum will be ‘advisory’ in the perception of staying addressed as a issue of tutorial desire only: a referendum is not, and is not designed to be, an workout in mere summary opinion polling at appreciable community expense. Have been the consequence to favour independence, it would be applied (and no doubt applied by the SNP as the central plank) to request to build momentum in the direction of attaining that close: the termination of the Union.

This reply from the Advocate Normal also speaks to the drive of the Scottish Parliament in legislating for the referendum, which is taken to be the dissolution of the Union. There are of program really fantastic contextual motives for pondering this is the scenario supplied the SNP’s legislative programme. The assert that the aim of the Invoice is the dissolution of the United Kingdom speaks, having said that, to its enthusiasm, which is distinct from, and insufficient to, developing intent. The final section of this publish argues that even if the reason of the Invoice is construed narrowly, as ascertaining the sights of Scots, this even now relates to the reserved matter of the Union of the Kingdoms of Scotland and England and is thus further than the legislative competence of the Scottish Parliament.

Construing Purpose Narrowly

When there are great contextual motives to imagine the purpose of the Scottish Referendum Monthly bill is the dissolution of the United Kingdom, it is much better to consider the Monthly bill at facial area worth as only ascertaining the views of Scots. The essential to deciding purpose, in accordance to Bloomsbury International Ltd. v Office for Setting Food and Rural Affairs [10-11] need to be the wording of the statute. The query then, of program, is how slender or broadly to construe the function. Could the purpose be, for instance, to set up the democratic appropriate of the Scottish folks to determine this problem, significantly specified the ‘permanence’ of the Scottish Parliament as proven by the Scotland Act? Or possibly the objective is to enforce democracy, supplied the recurring refusals of the British isles Federal government to grant a area 30 get?

Provided the Invoice by itself identifies its objective, the most effective technique is to take it as narrowly as feasible: only to figure out what Scots consider about the question of independence. It is detrimental to the devolution settlement to unnecessarily ascribe wide motivations to the Invoice. In any occasion, even putting the dilemma to a referendum is outside the Scottish Parliament’s legislative competence.

Ascertainment as Impacting Reserved Matters

It is handy to distinguish concerning two points at which holding a referendum may possibly relate to reserved matters. The outcomeof a referendum, in the type of millions of votes, may have authorized effects but the extremely choice to hold a referendum – even an advisory referendum – relates to the reserved make any difference of the Union of the Kingdoms of England and Scotland as perfectly. Even asking these kinds of a problem has additional than a ‘loose or consequential’ marriage to a reserved make any difference. This is the case even though holding a referendum is not, in basic, a reserved make any difference. To see why, envision two other situations where by the result of asking a problem is distinct from the outcomes of choosing. 

Imagine I have a property finance loan with a bank for 25 a long time. Suppose the property finance loan states it can’t be terminated with out the bank’s approval. Picture I set the problem to my mates: ‘should I terminate my home finance loan?’ The result of asking this dilemma, and having solutions from my pals, has more than a ‘loose and consequential’ partnership with my house loan: that is what I am asking my friends about. Even however my friends’ responses have no impact on the mortgage loan, and even although I are unable to terminate the mortgage loan unilaterally, that does not mean their views have no effect on a decision about the property finance loan. 

A second illustration of this form is uncovered in the Advocate General’s submissions. It is argued there that Scotland could not hold a referendum on other reserved matters, these kinds of as the monarchy. This is a valuable example since it would be possible to devise an advisory referendum which would have no impression on ending the monarchy in Scotland, but that does not necessarily mean these kinds of a referendum would not be associated to that subject or would have no outcome on it. Even asking that dilemma has result, as it would in the situation of the Scottish Independence Invoice, by triggering the appropriate provisions of the Referendums (Scotland) Act 2020. Contacting a referendum initiates legal equipment which puts a reserved issue to voters. Although the end result of this sort of a referendum may possibly not have a immediate and near romance with ending the monarchy in Scotland, that is not the pertinent problem. The improved questions are these: does this hypothetical referendum have the objective of asking about ending the monarchy? And is the make any difference of monarchy reserved? Offered the responses to these queries are of course, and indeed, this kind of a Bill need to be over and above the legislative competence of the Scottish Parliament. The exact is genuine of the Scottish Independence Referendum Monthly bill. 

The Advocate Typical suggests at [115] of her written case that the wording of the Scotland Act suggests that, in figuring out the reason of a provision, the issue of subject issue is secondary to the concern of influence. Recall, s 29(3) says ‘the query of no matter whether a provision of the Scottish Parliament relates to a reserved matter is to be determined…by reference to the function of the provision, obtaining regard (amongst other factors) to its result in all the situation.’ Whilst it is legitimate that the statute does not mention or foreground ‘subject issue,’ the statute is written to be as expansive as probable making it possible for regard for ‘among other things’ in ‘all circumstances.’ Inquiring a dilemma which so squarely considerations a reserved subject is more than enough to fulfill to fulfill the open-finished needs of s 29(3), specially when asking these a question does have an effect in any case. Routine 5 by itself refers to reserved matters, not to the outcome of reserved issues. 

Summary

This put up has argued that holding a referendum to ask a question about a reserved subject has an effect on that subject, even if the referendum’s consequence has no immediate or indirect influence on it. Effect and affect are not synonymous. Inquiring a question has an influence in two techniques. 1st, it has the legal outcome of initiating the machinery to maintain a referendum. 2nd, and extra importantly, on the matter issue alone. Asking Scots what they think about the Union of the Kingdoms of Scotland and England has extra than a free or consequential connection to the reserved subject of the Union of the Kingdoms of Scotland and England. The reserved matter is the problem remaining asked. 

I am grateful to Alison Younger and Mike Gordon for pretty helpful reviews on an previously draft of this piece. 

Leah Trueblood is Occupation Enhancement Fellow in General public Law at Worcester School, Oxford.

(Suggested citation: L. Trueblood, ‘What is the ‘Purpose’ of the Scottish Independence Referendum Bill?’, U.K. Const. L. Blog site (11th October 2022) (readily available at https://ukconstitutionallaw.org/))