The SNP’s Supreme Court submission on the independence referendum

IN THE SUPREME COURT OF THE UNITED KINGDOM

IN THE REFERENCE BY THE LORD ADVOCATE UNDER PARAGRAPH 34 OF SCHEDULE 6 OF THE SCOTLAND ACT 1998

IN RELATION TO WHETHER THE QUESTION FOR A REFERENDUM ON SCOTTISH INDEPENDENCE CONTAINED IN THE PROPOSED BILL RELATES TO RESERVED MATTERS

WRITTEN SUBMISSIONS ON BEHALF OF THE SCOTTISH NATIONAL PARTY

1. Introduction

1.1.  These submissions are presented on behalf of the Scottish National Party (the ‘Intervener’) for the assistance of the court in accordance with the directions issued by this court on 7 September 2022.

1.2.  In relation to the questions posed by the Lord Advocate in her reference, the Intervener respectfully submits that, for the reasons set out in more detail below, the answer should be as follows: The proposed Scottish Independence Referendum Bill does not relate to reserved matters; and in particular does not relate to (i) the Union of the Kingdoms of Scotland and England, or (ii) the Parliament of the United Kingdom.

2. The Intervener’s focus

2.1.  The Intervener’s submissions focus on the requirement to construe the Scotland Act 1998 (the ‘1998 Act’) in accordance with – rather than contrary to – the right of all peoples to self-determination.

2.2.  This focus should not be understood to be the only argument favoured by the Intervener. The Intervener supports the arguments of the Lord Advocate in favour of legislative competence as contained at §§114-129 and 135-138 of her written case.

2.3.  The Intervener emphasises that it is not advocating for a direct exercise or implementation of the right to self-determination in these proceedings. Its argument may be summarised as follows:

1. 1. The right to self-determination is a fundamental and inalienable right, among the most fundamental of all rights;
   2. There is a strong presumption in favour of the interpretation of domestic legislation in a manner which is compatible with international law;
   3. A narrow reading of the phrase ‘relates to’ renders within competence a non-self- executing referendum in accordance with the right of the Scottish people to self-determination;
   4. A broad reading of that phrase is incompatible with that right; and
   5. Where two possible readings are available in relation to a provision, one of which is compatible with international law and one of which is not, the former should be preferred.

2.4.  The preliminary matter of competency is largely a matter for the principal parties and the Intervener makes no submissions in relation to that matter except for one comment. The Intervener notes that the Advocate General’s written case at §45 suggests that the issues contained within a government’s political manifesto are to be dismissed as nothing more than party politics. The Intervener rejects the suggestion that the basis on which a government was elected by its electorate has nothing to do with the law. The rule of law and the trust of the electorate in its elected government is wholly undermined by the suggestion that the mandate given to such a government is to be regarded as nothing more than political rhetoric once that government takes office. While circumstances will impact on the intended programme of any government, it is nevertheless the case that a people is entitled to expect its government to seek to govern on the basis on which it sought to be elected. That is a fundamental principle of government and to find otherwise would wholly undermine the legitimacy of any executive branch of government and the trust of the public in government as a whole. The Intervener’s commitment to holding a referendum on Scottish independence is, and was understood by the public to be, at the core of its policy offer and programme of government. While matters such as timing may be affected by events, that commitment is a key factor in the Intervener securing continued electoral success in Scotland in both the United Kingdom and Scottish Parliaments. In a matter such as this where there is a known legal dispute as to the competence of a proposed measure, it is wholly sensible for the Lord Advocate – and wholly appropriate given her constitutional role – to set out to this court the dispute and to seek to have the matter placed beyond doubt in advance. It is a question that will inevitably require resolution by this court at some point. Having this matter resolved now will provide legal certainty and avoid unnecessary future legal process. The decision of Lord Drummond Young in Wightman v Secretary of State for Exiting the European Union 2019 SC 111 at §67 is particularly prescient:

‘The fundamental purpose of the supervisory jurisdiction is in my opinion to ensure that all government, whether at a national or local level, and all actions by public authorities are carried out in accordance with the law. That purpose is fundamental to the rule of law; public authorities of every sort, from national government downwards, must observe the law. The scope of the supervisory jurisdiction must in my opinion be determined by that fundamental purpose. Consequently I would have no hesitation in rejecting any arguments based on procedural niceties, or the detailed scope of previous descriptions of the supervisory jurisdiction, if they appear to stand in the way of the proper enforcement of the rule of law.’

3. Self-determination

3.1.  The right to self-determination, as a fundamental and inalienable right, must inform the interpretation of the 1998 Act when considering the answer to the questions posed by the Lord Advocate.

3.2.  Article 1 of the UN Charter, adopted in 1945, provides that one of the fundamental purposes and principles of the United Nations is ‘to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’. In December 1960 the General Assembly adopted Resolution 1514. Resolution 1514 declares as follows at paragraph 2:

‘All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’

3.3.  In 1966 the General Assembly adopted the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Each Covenant replicated the terms of paragraph 2 of Resolution 1514.

3.4.  In his separate opinion in the ICJ Advisory Opinion on the legal consequences of the separation of the Chagos Archipelago from Mauritius, Judge Patrick Robinson notes as follows in relation to paragraph 2 of Resolution 1514:

‘Written in the present tense, this is very strong and forceful language, declaratory of existing rights. Indeed the entire Declaration is clear and unequivocal in the language it uses. Rosalyn Higgins [The Development of International Law through the Political Organs of the United Nations, Oxford University Press (OUP), 1963] captures very well the essence and spirit of the resolution when she commented that “the right to self- determination is regarded not as a right enforceable at some future time in indefinite circumstances, but a legal right here and now.” …

The incorporation of the right to self-determination as the first article in the two international Covenants, which have received widespread ratifications, solidifies its development as a fundamental human right, and indeed, the foundation for all other human rights. … This unity is achieved by the existence of a common basis applicable to both purposes, namely, respect for the inherent dignity and worth of the human person.’1

3.5.  The Intervener submits that, in light of the above and the central and core position of the right of all peoples to self-determination, the right is of fundamental significance – perhaps one of the most fundamental rights of all, referred to by the General Assembly as ‘inalienable’.2

3.6.  In an international law context, the right to self-determination was perhaps most prominent during the post-colonial independence movement. The right is, however, not restricted to such circumstances and this is best captured in the words of Judge Cançado Trindade in relation to the unilateral declaration of independence made by Kosovo:

‘The historical process of emancipation of peoples in the recent past (mid-twentieth century onwards) came to be identified as emanating from the principle of self-determination, more precisely external self-determination. It confronted and overcame the oppression of peoples as widely known at that time. It became widespread in the historical process of decolonization. Later on, with the recurrence of oppression as manifested in other forms, and within independent States, the emancipation of peoples came to be inspired by the principle of self-determination, more precisely internal self-determination, so as to oppose tyranny.’3

3.7.  In the context of the Kosovan unilateral declaration, the United Kingdom made submissions to the ICJ. Within those submissions, the United Kingdom wrote as follows:

‘To summarise, international law favours the territorial integrity of States. Outside the context of self-determination, normally limited to situations of colonial type or those involving foreign occupation, it does not confer any “right to secede”. But neither, in general, does it prohibit secession or separation, or guarantee the unity of predecessor States against internal movements leading to separation or independence with the support of the peoples concerned.’4

3.8.  The United Kingdom therefore recognises the fundamental right of a people to self- determination and understands that discrete peoples within a State may determine, as is their right, that they no longer wish to form part of that State.

4. What is ‘a people’ for these purposes?

4.1. There is no universally accepted definition of what constitutes ‘a people’ for the purposes of the right to self-determination as the matter is situation dependent.5 A people can be constituted by reference to a State boundary, as was often the case with the independence of former colonial territories. That, however, is not the only possible definition and it is entirely possible – as with Kosovo – for ‘a people’ to be represented by a smaller group within a State boundary. That distinction is the difference between ‘external self-determination’ and ‘internal self-determination’ as set out above. Commenting on the distinction, Dr Kalana Senaratne writes:

‘It can be noted here that the separation of the concept of self-determination into two distinct parts – internal and external – has served an important purpose. The distinction, in teasing out an internal dimension of self-determination, allows international lawyers to emphasize the need to take the freedoms of the people within a state more seriously.’6

4.2.  It is therefore entirely possible, where there is an accepted geographic boundary within a State, for the determination of a people to be made by reference to such a boundary, constituted of those who have chosen to live there. That determination is particularly clear where the geographic area already has its own legislature and legal system as is the case with Scotland as set out in more detail below.

4.3.  The United Kingdom has recognised the concept of internal self-determination since at least the mid-1980s. In a statement made as the UK Representative to the General Assembly’s Third Committee on 12 October 1984, Mr R Fursland said:

‘The right of self-determination has pride of place in both International Covenants, and rightly so. It is not only important in itself, but a necessary foundation for the exercise of other human rights. One might get the impression from some UN debates that the right of self-determination can only be denied from outside, by invasion and foreign occupation. And indeed, the occupation and brutalisation of peoples by foreign invaders – in, for example, Afghanistan and Cambodia – represent glaring contemporary violations of this right. But we must not forget that peoples can also be deprived of this right by their own countrymen. …

It cannot be reiterated too often that, according to the International Covenants, self- determination is a right which belongs to peoples, not to governments. The fact that a country is not occupied by a foreign power does not automatically mean that its people enjoy the right of self-determination. They enjoy that right only if, in the words of the Covenants, they are enabled to “freely determine their political status and freely pursue their economic, social and cultural development”. Self-determination is not a one-off exercise. It cannot be achieved for any people by one revolution or one election. It is a continuous process. It requires that peoples be given continuing opportunities to choose their governments and social systems, and to change them  requires that they should be enabled to exercise other rights set out in the Covenants, such as the rights to freedom of thought and expression; the rights of peaceful assembly and freedom of association; the right to take part in the conduct of public affairs, either directly or through freely chosen representatives; and the right to vote and be elected at genuine periodic elections.

…Mr Chairman, the principle of self-determination is both inalienable and indivisible. It is fundamental to international peace and security, and to the protection of national integrity. As nation states, all of us have a vital interest in it. We cannot afford to be selective in its application, because none of us except perhaps the very strongest can be sure when our own right of self- determination may be threatened.’

4.4.  The reference to the inalienability of the right to self-determination was also made by the UK Representative in 1983:

‘The Committee has repeatedly declared its belief in the inalienable right of self-determination. Inalienable is a very strong word. It means birthright; it means you cannot get rid of it; it means that the Falklanders have a right of self-determination which no one can take from them. The United Kingdom shares that view.’8

4.5.  The United Kingdom’s position, therefore, at least on the international stage, appears to be clear in that ‘a people’ has an inalienable right to self-determination which cannot be taken away from them, and that ‘a people’ can exist within a state boundary.

5. Are the people of Scotland ‘a people’?

5.1.  The answer to this question is undoubtedly yes.

5.2.  That the United Kingdom in its current form consists of separate nations is clear when one has regard to the terms of the various Acts of Union bringing it about. The Union With England Act 1707 refers expressly to ‘the two kingdoms of Scotland and England’. That notwithstanding, the 1707 Act makes express provision for Scotland’s separate legal, educational, and ecclesiastical systems to remain separate from those of England. On the recent accession of King Charles III, His Majesty was expressly required to make certain declarations in relation to the independence of the Church of Scotland, for example, borne of the Claim of Right 1689.

5.3.  Scotland elects representatives to its Parliament; the scope of ‘the people of Scotland’ is certainly sufficiently clear geographically. The geographic scope is, in fact, set out as schedule 1 to the 1998 Act. The Scottish Parliament exercises its legislative power for and over the people of Scotland to whom it is democratically accountable. It is firmly rooted in the traditions of a universal democracy: AXA v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 per Lord Hope at §49. Scotland has discrete administrative bodies and distinct social and economic policies. The role of the Scottish Parliament has developed since its inception, most clearly by the extension of its powers under the Scotland Act 2016. The role and significance of the Scottish Parliament must, therefore, be understood in its current context. The Scottish Parliament regularly debates and legislates upon matters of significant importance to the people of Scotland. It is to the Scottish Parliament that the Scottish people regularly turn on matters of material in their lives. It is the Scottish Parliament – and the Scottish Parliament alone – that represents and legislates exclusively for the people of Scotland.

5.4.  Following the referendum on Scottish independence in 2014, the Smith Commission was established to consider further devolution of powers to the Scottish Parliament, standing the campaign promises made to the Scottish people by each of the three main UK parties. Per paragraph 20 of the Commission’s report:

‘Reflecting the sovereign right of the people of Scotland to determine the form of government best suited to their needs, as expressed in the referendum on 18 September 2014, and in the context of Scotland remaining within the UK, an enhanced devolution settlement for Scotland will be durable, responsive and democratic.’

It is clear from the first clause of that paragraph that it is recognised throughout the UK that the people of Scotland are the people with the authority to decide their own future.

The work of the Smith Commission, which followed discussions between the UK and Scottish Governments, led to the enactment of the Scotland Act 20169.

5.5.  If it were not sufficiently clear that the people of Scotland are ‘a people’ from those matters above, the answer can be found definitively by having regard to section 63A(3) of the 1998 Act which provides as follows:

‘In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.’

That provision was introduced by the UK Parliament by way of the Scotland Act 2016 and makes it clear that there is a distinct and determinable demos of ‘the people of Scotland’ and that that demos represents ‘a people’ for the purposes of the right to self- determination.

5.6.  For those reasons, the people of Scotland are ‘a people’ for the purposes of the right to self-determination.

6. The domestic law treatment of the right to self-determination

6.1.  It is the Intervener’s submission that the right to self-determination, as a fundamental and inalienable right, must inform the interpretation of the 1998 Act when considering the answer to the questions posed by the Lord Advocate.

6.2.  The Scottish constitutional tradition as distinct from the English equivalent is set out famously – and most succinctly – by Lord President Cooper in MacCormick v Lord Advocate 1953 SC 396 at 411:

‘The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.’

6.3.  The Scottish constitutional tradition does not subscribe to the form of ‘sovereignty of Parliament’ described by Diceyan theory as the despotism of the King in Parliament.10

6.4.  It is not clear to what extent any part of the United Kingdom continues to regard the power of the UK Parliament to be truly unfettered. No power is without limit. In a modern democracy, the rule of law is maintained through a balance of the three branches of government, and not by attempts by one of them to override or usurp the role of the others: Cherry v Advocate General [2019] UKSC 41, [2020] SC (UKSC) 1 Per Lady Hale at §33-34. When the case was in the Inner House, Lord Drummond Young noted:

‘The rule of law requires that any act of the executive, or any other public institution, must be liable to judicial scrutiny to ensure that it is within the scope of the legal power under which it is exercised. The boundaries of any legal power are necessarily a matter for the courts, and the courts must have jurisdiction to determine what those boundaries are and whether they have been exceeded. That jurisdiction is constitutionally important, and in my opinion the courts should not shrink from exercising it. Consequently, if the expression “non-justiciable” means that the courts have no jurisdiction to consider whether a power has been lawfully exercised, it is a concept that is incompatible with the rule of law and contrary to fundamental features of the constitution of the United Kingdom.’11

6.5.  In Moohan v Lord Advocate [2014] UKSC 67, 2015 SC (UKSC) 1 Lord Hodge said at §35: ‘I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful.’

6.6.  Such limits as a matter of law are particularly acute when one is concerned with interferences with fundamental rights. This court has consistently held that fundamental rights cannot be overridden by general or ambiguous words and, even when faced with express statutory authorisation of an intrusion into a fundamental right, such authorisation will be interpreted narrowly and strictly: AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 per Lord Reed at §152; R (UNISON) v Lord Chancellor [2017] UKSC 51, [2020] AC 869 per Lord Reed at §§65, 66, 77-84; Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591 per Lord Reed at §119.

6.7.  Whether through the enduring nature of the Scottish constitutional tradition or by way of the rebalancing of the three branches of government as part of a more modern understanding of what the rule of law means, it is not the case (if it ever was) that the UK Parliament is without restraint or limit. It may well have supreme legislative competence, in that it can legislate in relation to any area, but it is not the case that, consistent with the rule of law, it is able to override, remove, or otherwise interfere with fundamental rights (such as the right to self-determination) without clear and unambiguous statutory authority12 and without a clear, rational and evidenced basis for doing so. In these circumstances, there is neither unambiguous statutory authority nor any clear, rational and evidenced basis for seeking to interfere with such a fundamental right.

6.8.  Beyond that matter, however, standing the existence and significance of the right to self- determination, there is a strong presumption in favour of interpreting domestic legislation in a manner which is compatible with international law. In Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 AC 471, Lord Dyson determined as follows at §122:

‘But there is no doubt that there is a “strong presumption” in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations.’

6.9.  In an extra-judicial speech given by Lord Mance on 13 February 201713 on the subject of International Law in the UK Supreme Court, Lord Mance said (at §8):

‘First, international law has received much domestic attention, because of a strong presumption that domestic law, including statute law, can and should be read consistently with international law. And the volume of international law bodies and instruments, in areas as diverse as environmental law or the law relating to children, has accentuated the relevance of this tendency, even if international law can still sometimes be characterised as vague or unsettled. The presumption as recognised in English law is a “strong” one.’14

6.10.  The Advocate General, in his written case to this court, has suggested at §71 that the Union of Scotland and England is, ‘par excellence’, a UK-wide matter and that is why it might be reserved. The clear implication of that is that the Advocate General believes as a matter of law that, should Scotland wish to become an independent country but the remainder of the United Kingdom does not want that, the remainder of the United Kingdom should have the ability to prevent Scottish independence. Whilst that belief might explain some of the political rhetoric, nothing could be further from the truth as a matter of law. A right to self-determination is not dependent or conditional on others agreeing with that decision. The right to self-determination of a people is exercised by that people and that people alone. The United Kingdom has a clear role in the negotiation of the manner in which Scotland leaves the Union should Scotland choose to do so and the implementation thereof, but that does not give the UK Government any ability in law to veto, prevent or hinder the expression by the Scottish people of their right to self-determination. The decision of the Canadian Supreme Court, which is referred to at paragraph 7.6 below, is a very clear example of exactly that form of procedure when considering the exercise of the right to self-determination within an existing State.

6.11.  Of the 650 seats in the House of Commons, 59 are for Scottish constituencies. MPs from Scottish constituencies account for less than ten percent of the chamber. The UK leaders of the Conservative and Labour parties have indicated they will not countenance a further referendum on Scottish independence. There is accordingly no practical way in which the right to self-determination can be advanced through that legislature. If there is no way in which to exercise a right, it is no right at all: ubi jus ibi remedium.15

6.12.  In construing the relevant sections of the 1998 Act in the circumstances of this case, therefore, the right to self-determination requires to be taken into account and, where there is a choice between a reading which is compatible with that right and a reading which is not compatible, the compatible reading should prevail.

7. Interpretation of the Scotland Act 1998

7.1.  It is important to understand the manner in which the question of legislative competence under the 1998 Act must be approached.

7.2.  The Scottish Parliament’s role in the day-to-day lives of the people of Scotland has increased since its inception nearly 25 years ago. It plays a central role in the lives of the people of Scotland and is responsible for legislating for them in a manner that is focused on their needs. It considers and debates Scotland’s place in the UK and in the world, and is the place to which the Scottish people turn and expect their lives to be reflected and represented. As a result, the 1998 Act must be interpreted in line with its evolving purpose and within the context of the developing role of the Scottish Parliament. A modern approach to the interpretation of legislation in this manner is set out succinctly by Lord Burrows in an extra-judicial speech given on 24 March 2022, particularly at section 3 thereof.16

7.3.  The provisions of section 29 of the 1998 Act insofar as relevant to current matters are set out by the Lord Advocate at §88 of her written case.

7.4.  The Intervener agrees with the arguments made by the Lord Advocate in support of the competence of the Bill. The effect of previous authorities on the meaning of ‘relates to’ indicate that this court requires, firstly, to consider the purpose of the Bill and, secondly, to determine whether it has more than a loose or consequential connection with a reserved matter.

7.5.  The purpose and effect of the Bill is to give a democratic method of ascertaining the views of the Scottish people in relation to the question asked. Whatever the outcome of a referendum, it cannot of itself have any effect on the Union or on the UK Parliament. That there would be subsequent discussions between the UK and Scottish Governments in the event that the Scottish people indicate their support for Scottish independence does not change that. Those discussions are separate from the referendum and do not inform its purpose, bearing in mind the words of this court:

‘The purpose of an enactment … may extend beyond its legal effect, but it is not the same thing as its political motivation.’17

7.6.  The use of a non-self-executing referendum as a method of ascertaining the views of an electorate in questions of the independence of a people is considered in detail in the decision of the Supreme Court of Canada in the matter of the Reference re Secession of Quebec [1998] 2 RCS 217. At §§87-97 of that decision, it is noted that the referendum, whilst having no direct or legal effect on the constitution, ‘may provide a democratic method of ascertaining the views of the electorate on important political questions on a particular occasion’. Subsequent discussions or negotiations, which are by necessity conditional on the outcome of such a referendum, are separate and discrete matters. The proposed referendum on Scottish independence would not be a referendum which sought to ‘dictate the terms of a proposed secession to the other parties’ in the manner found to be legally unsound by the Supreme Court of Canada. That court found as follows at §92:

‘The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec. Such a proposition fails to give sufficient weight to the underlying constitutional principles that must inform the amendment process, including the principles of democracy and federalism. The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others.’

This is consistent with the Intervener’s submission to this court. The Scottish people have a right to express themselves in relation to their constitutional and political future. Should they express a view that they would like to move away from the current system, that would be a matter for negotiations after the referendum. Speculation or concern about the outcome of such a referendum, however, cannot properly form a basis on which the UK Government seeks to prevent it taking place.

7.7.  The argument from the Advocate General for a broader interpretation of the phrase ‘relates to’ is premised on an assumption that the Scottish people will indicate their support for Scottish independence. While that is the hope of the Intervener, it cannot be assumed, and the fallacy of the Advocate General’s argument is clear if one considers the effect of the proposed referendum in the event that the Scottish people do not indicate their support for independence. In that situation, it cannot possibly be suggested on any reasonable basis that the effect of the referendum is anything other than a determination of the will of the Scottish people.

7.8.  Notwithstanding the undeniable political importance of a referendum, it is difficult to see how the holding of a referendum to determine the view of the Scottish people has anything more than a loose or consequential connection with any reserved matter in the 1998 Act. Seeking to test the views of the Scottish people by way of a referendum is perfectly competent and, standing the continued electoral mandate of the Intervener, it is democratically unthinkable that the people of Scotland would be denied such a right to express their view.

7.9.  Beyond that, however, there is a positive statutory requirement on courts, when interpreting a Scottish Bill to read such a Bill (or Act) in a manner which brings it within legislative competence if such a reading is possible: 1998 Act, section 101(2). This statutory requirement is consistent with the Intervener’s argument anent a reading which is compatible with international law. If such a reading is possible, that is the reading which should prevail.

7.10.  In that context, the arguments, as set out by the Lord Advocate, are premised on whether ‘relates to’ should be given a broad or a narrow reading. The 1998 Act is without question a constitutional statute: AXA v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 per Lord Reed at §153. As such, in accordance with settled principles of interpretation, its provisions must be interpreted purposively and not on a strictly literal basis: Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 at §11; AXA v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 per Lord Reed at §153.

7.11.  The broader reading of the phrase cannot have been the intention of the UK Parliament when one has regard to all of the relevant factors. There is nothing to suggest that the UK Parliament’s intention was to stifle democratic expression; that would be an astonishing proposition which one would expect to be set out expressly in the 1998 Act and it is not. That is particularly so, given, as is noted in AXA v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 per Lord Reed at §153:

‘Parliament did not legislate in a vacuum: it legislated for a liberal democracy founded on particular constitutional principles and traditions. That being so, Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law.’

7.12.  The argument benefits from being tested against other reserved matters in schedule 5of the 1998 Act. Take for example heading C10 of schedule 5, which includes the reservation ‘internet services’. It cannot reasonably be suggested – applying the purported broad reading – that the Scottish Parliament is not permitted to legislate on anything related to websites, to require certain information notices to be placed online, or to ask a question of the electorate about upgrading broadband infrastructure. Such an outcome would be patently absurd. That being the case, it is unfathomable for one heading under schedule 5 to be held to a different standard than is applied to others, bearing in mind that the scheme of devolution in Scotland is that everything is devolved unless it is expressly reserved.

7.13. The particular matter of whether the Scottish Parliament could hold a referendum in relation to independence was discussed during the passage of the Scotland Bill through the UK Parliament. While recognising the difficulties inherent in discerning Parliamentary intention18, standing the apparent ambiguity in the reading which has led to this reference being necessary, having regard to those discussions would be of assistance to the court, given their clarity on the issue from the then UK Government. In particular, the Intervener draws the court’s attention to an interaction on 24 July 1997. On that day, having been asked expressly:

‘Will the right hon. Gentleman reiterate that nothing in the documents, or in any response that he will give, will interfere in any way with the sovereign right of the people of Scotland to determine their own constitutional future, whatever that may be?’,

the then Secretary of State for Scotland, Donald Dewar, responded:

‘If I did try to build such barriers, they would be futile and without effect. At the end of the day, in practical politics, what matters is what people want. If the hon. Gentleman is able to carry the people of Scotland, no doubt he will be able to advance his cause.’

7.14. The entire purpose of devolution was to empower the devolved nations and not to disempower them. The clear intention of the UK Parliament was to reserve to the UK Parliament the power to legislate for the implementation of any legislation which has the effect of amending or altering the Union or the scope of the UK Parliament. A non-self-executing referendum does not seek to do any of those things and nor does it have any such effect.

7.15.  Furthermore, the matter having been expressly raised with the UK Government during the passage of the Bill through the UK Parliament on a number of occasions, it would have been very simple for the matter to have been expressly reserved and put beyond doubt in a clear and unambiguous expression of its intention. The UK Parliament did just that in the Northern Ireland Act 1998 at section 1 which provides that Northern Ireland shall remain part of the UK until such time as a majority vote in favour of leaving in a poll carried out in accordance with schedule 1 of that Act. Schedule 1 of that Act expressly provides that the poll shall be the responsibility of the Secretary of State.19 The UK Parliament opted not to include any such express provision in the Scotland Act 1998.

7.16.  Should a subsequent UK Government have wished to seek to extend the reservation in relation to a referendum on independence, it could at any time have sought to garner support for such an amendment in the UK Parliament. No such amendment has been made.

7.17.  To the extent that a subsequent UK Government now seeks to make use of the wording enacted in the 1998 Act effectively to stifle democratic expressions of will, that is very clearly not the purpose for which the 1998 Act was enacted. Indeed, such an attempt would frustrate the purpose of the 1998 Act and would be subject to review: Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; RM v Scottish Ministers 2012 UKSC 58, 2013 SC (UKSC) 139 per Lord Reed at §§42-48.

7.18.  To the contrary, the narrow reading of ‘relates to’ does not infringe upon the rights of the people of Scotland to express their view as to how they choose to be governed and nor does it run contrary to the purpose of the devolution settlement. The narrow reading permits the question to be asked in accordance with the norms of international law as set out above and in accordance with the strong presumption in favour of a reading which is compatible with international law.

7.19.  The narrow reading retains the reservation to the UK Parliament of the overarching power to enact any subsequent implementing legislation – just as it did in 1922 with the Irish Free State Agreement Act 1922 and the Irish Free State Constitution Act 1922, and in 1949 with the Ireland Act 1949.

7.20.  Neither the narrow reading of the phrase ‘relates to’ nor the holding of a single question, non-self-executing referendum as proposed in the Bill removes or reduces any power currently vested in the UK Parliament.

7.21.  Most importantly, however, for the purposes of these submissions, the narrow reading of the phrase does not infringe upon, reduce, or deny the Scottish people’s inalienable right to self-determination. For that reason, any doubt between the two possible readings that continues to exist must result in the narrowest reading being given to the phrase ‘relates to’.

7.22.  Put short, the holding of a consultative referendum does not result in a reduction in the scope of the powers of the UK Parliament and nor does it, of itself, have any effect on the Union. Legislation to enable such a referendum does not, therefore, relate to the reservation of the Union nor to the Parliament of the United Kingdom. Holding such a referendum, however, represents the expression by a people of their right to self- determination which should not be interfered with except under the clearest and most extreme circumstances.

7.23.  The Scottish Parliament has the legislative authority to legislate for a non-self-executing referendum on Scottish independence in order to seek to determine the views of the Scottish people on that matter.

8. Conclusion

8.1. Taking all of the above matters into account, it is the respectful submission of the Intervener that:

1. The people of Scotland are ‘a people’ for the purposes of the right to self-determination;
2. The Scottish people are therefore entitled as a matter of law to protection of their right to determine ‘their political status and freely pursue their economic, social and cultural development’;
3. That right is inalienable and cannot be taken away from the Scottish people; and
4. When reaching a determination on the interpretation of the 1998 Act in the circumstances of this reference, there is a strong presumption that an interpretation must be given to the 1998 Act which does not prevent the exercise by the Scottish people of their right nor render it disproportionately difficult for them to do so by, for example, making their right of self-determination conditional or subject to the approval of another ‘people’. The leaders of the Conservative and Labour parties at Westminster have made clear they will not countenance a referendum on Scottish independence under any circumstances. Regardless of the outcome of any subsequent general election to the UK Parliament, the people of Scotland’s right to self-determination cannot be advanced through that legislature.

8.2.  As well as being consistent with international legal norms, the narrow reading of ‘relates to’ is consistent with the statutory interpretation exercise as required by section 101 of the 1998 Act and it is consistent with the overarching purpose of the devolution legislation. The broader reading of ‘relates to’ does not satisfy any of those requirements.

8.3.  When answering the questions posed by the Lord Advocate, therefore, the submission of the Intervener is that this court should find that the Scottish Parliament may legislate for a non-self-executing referendum on Scottish independence and, accordingly, the proposed Scottish Independence Referendum Bill does not relate to (i) the Union of the Kingdoms of Scotland and England, or (ii) the Parliament of the United Kingdom for the purposes of the Scotland Act 1998.

Claire Mitchell KC David Welsh Instructed by Stuart Munro, Livingstone Brown

Footnotes:

1. Separate Opinion of Judge Robinson, §43, 45, 46.

2. Resolution of the General Assembly of the United Nations on 22 May 2019, following the advisory opinion of the ICJ on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 (A/RES/7/295).

3. Separate Opinion of Judge Cançado Trindade, §174.

4. UK’s Written Statement to the ICJ in the Kosovo Advisory Opinion, para 5.33.

5. It is noteworthy that, during the drafting of the two international human rights covenants, the word ‘peoples’ was substituted for the word ‘nations’ as the former was considered to be a more comprehensive term. In M Bossuyt’s ‘Guide to the Travaux Préparatoires of the International Covenant on Civil and Political Rights’ (1987), it is noted at pp32-35 that: ‘the word ‘peoples’ was understood to mean peoples in all countries and territories, whether independent, trust or non-self-governing … It was thought… that the term ‘peoples’ should be understood in its most general sense and that no definition was necessary.’

6. Dr K Senaratne, ‘Internal Self-Determination in International Law’ (2021), p57.

7. Cited in ‘United Kingdom Materials on International Law 1984’, (1984) 55 BYIL 434, from 431.

8. Cited in ‘United Kingdom Materials on International Law 1983’, (1983) 54 BYIL 361, from 404.

9. The Scottish Parliament’s Supplementary Legislative Consent Memorandum, https://archive2021.parliament.scot/LegislativeConsentMemoranda/ScotlandBillLCM010316.pdf, explains at Annex A the sequence which led from the Smith Commission to the Bill that became the Scotland Act 2016. The further devolution that flowed from the 2016 Act was a product of dialogue and engagement, not a unilateral process.

10. Dicey on the Law of the Constitution (8th ed, reprinted 1915), p78: ‘The one fundamental dogma of English constitutional law is the absolute legislative sovereignty or despotism of the King in Parliament.’

11. Cherry v Advocate General [2019] CSIH 49, 2020 SC 37 at §102.

12. To the extent that an attempt is made to suggest in this case that such authority is found in the 1998 Act, those provisions are self-evidently not ‘unambiguous’ standing the need for this reference. They are therefore insufficient to provide a basis for the UK Government to interfere with the fundamental rights of the Scottish people. As set out at section 7 of these submissions in relation to this question having been raised expressly with the enacting government, neither that government nor any subsequent government has sought to resolve the ambiguity. Indeed, during the passage of the Scotland Bill through the Houses of Parliament, Lord Mackay of Drumadoon, the Conservative shadow Lord Advocate at the time, explained his view to the House of Lords as follows: ‘I believe that it would be perfectly possible to construct a respectable legal argument that it was within the legislative competence of the Scottish parliament to pass an Act of Parliament authorising the executive to hold a referendum on the issue of whether those who voted in Scotland wished Scotland to be separate from the UK. It would be perfectly possible to construct an argument that it would assist members of the Scottish parliament in the discharge of their devolved legislative and executive duties to be aware of the thinking of Scottish people on that very important issue. … I have no wish to indicate whether it would be desirable to have such a referendum at an early date; there are arguments both ways. But I remain convinced that the law on this matter should be clarified. If it is not then the festering issue as to whether the Scottish parliament is competent to hold such a referendum will rumble on.’ (21 July 1998, Hansard volume 592, column 852)

13. supremecourt.uk/docs/speech-170213.pdf.

14. See also: Donaldson v Scottish Legal Aid Board [2014] CSIH 31, 2014 SC 689 at §§34-35.

15. Anwar v Secretary of State for Business, Energy and Industrial Strategy 2020 SC 95 at §52. 13

16. supremecourt.uk/docs/sir-christopher-staughton-memorial-lecture-2022.pdf.

17. Re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64; 2019 SC (UKSC) 13 at §27.

18. To the extent the Advocate General seeks to draw on the explanatory notes to the Scotland Act (see §81 of the Advocate General’s written case), the submission fails to recognise that it is the intention of Parliament one is seeking to determine, not the intention of the drafter of the explanatory notes. In the same speech by Lord Burrows referred to at paragraph 7.2 above, His Lordship makes clear that the explanatory notes to a Bill are of little assistance (if any) in determining the intention of Parliament and he makes that observation as the drafter of the explanatory notes to which he is referring: see page 9 of the speech. The explanatory notes also clearly must be viewed in light of the express ambiguity of the matter of an independence referendum having been raised during the passage of the Bill through Parliament and Parliament having chosen not to put the matter beyond question.

19. Interestingly, schedule 1 also provides that the period between such polls should be no less than seven years.