In 2007 the Scottish Government launched the National Conversation.  This was an exercise to get people talking about independence.  Although things have moved on quite a bit since then, it’s worth noting that the Scottish Government has achieved one of its objectives.  We’re all discussing Scotland’s constitutional future in a way we were not a decade ago.

But many discussions I’ve read, heard or been party to expose a problem for voters who will be involved in 2014’s referendum – at least as matters stand.  The problem is the lack of clarity about important issues.  For example, this week’s news is full of the EU Commission President saying that a newly independent state would have to reapply for membership of the EU, and various Scottish Ministers disagreeing.  But it is not only the ramifications of independence that need to be clear for an informed decision to be made about whether to vote yes or no. There also needs to be clarity about the current powers of the Scottish Parliament.  An informed decision about whether there should be any change to the arrangements which already exist needs to be based on an understanding of what the existing powers of the Scottish legislature are, not just what the alternatives might be. 

The Supreme Court decision in Imperial Tobacco v Lord Advocate [2012] UKSC 61 helps with this: it makes clearer the extent of the existing powers of the Scottish legislature. 

The background to Imperial Tobacco is that the Scottish Parliament enacted laws to ban tobacco displays in shops and tobacco vending machines (sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010).  Imperial Tobacco argued that the Scottish Parliament did not have legislative power to do this. 

The way the Scotland Act 1998 works is that the Scottish legislature is given powers to make laws, subject to a list of restrictions on those powers.  One of those restrictions is that laws cannot ‘relate to’ matters reserved to the UK Parliament.  There is a long Schedule setting out the reserved matters.  (The Supreme Court in Imperial Tobacco described the areas which are currently reserved to Westminster as having a common theme: “matters in which the United Kingdom as a whole has an interest should continue to be the responsibility of the United Kingdom Parliament at Westminster”).

If courts take an approach to the concept "relates to" so that remote effects on reserved matters push laws outside competence, or if courts construe reserved matters widely, the area of legislative power for the Scottish Parliament lessens, and the area reserved to Westminster increases.  But Imperial Tobacco indicates that the Supreme Court is not taking this type of restrictive approach to the powers of the Scottish Parliament. 

First, the court says that “One of the purposes of the 1998 Act was to enable the Parliament to make such laws within the powers given to it by section 28 as it thought fit. It was intended, within carefully defined limits, to be a generous settlement of legislative authority” (bold added).   The court unsurprisingly finds: legislative competence of the Scottish legislature is subject to limits; that the limits are determined by rules in the Act; and these rules are subject to normal principles of statutory interpretation.  But the court also finds that any case about the application of these rules is to be decided in a context that a ‘generous’ amount of legislative power is intended to be devolved.      

Second, the court gives effect to this principle when it confines the scope of the main reservation relied on by Imperial Tobacco (C7(a) – “the sale and supply of goods and services to consumers”), and finds the display and vending machine bans within the powers of the Scottish Parliament.  On its face, this reservation could be widely interpreted, with a consequent restriction of the Scottish Parliament’s legislative powers.  But that is not the court’s approach.  It finds that the Scottish Parliament does have power to make laws even if they may have something to do with the sale and supply of goods and services to consumers.  Only laws in this area which seek to regulate actual sales in order to protect consumers are outwith powers.  Health measures such as tobacco vending machine and display bans are within competence. 

Third, the court goes out of its way to express a view on what happens where a legislative provision has two purposes, one of which is devolved and one of which is reserved.  It did not need to do this, because on its interpretation of the reservations relied on in this case, there was no reserved purpose.  What the court says is that if there are two or more purposes, one of which relates to a reserved matter, the legislation will be outside competence “unless the purpose can be regarded as consequential and thus of no real significance when regard is had to what the provision overall seeks to achieve”. 

What is interesting about this third aspect of the case is the implicit recognition that legislation can be within competence even if there are some consequential reserved purposes. Also interesting is that it perhaps gives an answer to the debate, prior to the ‘Edinburgh Agreement’, about whether the Scottish legislature had powers to legislate for a referendum.  To paraphrase, one side of the argument suggested there were such powers, because the purpose of a referendum was advisory only.  The other side argued that the true purpose was to further independence, which was reserved because the Union of Scotland and England is a reserved matter.   Two different purposes are identified in these arguments.  Applying the Supreme Court’s approach to this two purpose situation, one purpose is reserved, one not.  It would be difficult (although lawyers are inventive!) to describe the reserved purpose as only being consequential on advising the government.  The result suggested by these obiter remarks is that such a referendum would be outwith competence.  (In passing, this week’s announcement by the Scottish Law Commission that it is looking into electoral reform brings back to centre stage the existing law governing referendums and the Union.  Because of this existing law, the restrictions in Schedule 4 of the Scotland Act 1998 would have been likely to be a potent source of challenge to Scottish Parliament legislation for a referendum, relying on Section 29(2)(c), something which received little attention during the pre-Edinburgh Agreement debate).  But this should now all be academic, as it is a matter of agreement that the necessary powers will be devolved, by amending the Union reservation to except this particular referendum.    

The upshot of all of this is that the continuing conversations about Scotland’s constitutional future now have as a starting point an indication from the Supreme Court that the legislative powers devolved to the Scottish legislature will be given effect to by that court.  Moreover, the background context against which the Supreme Court will decide legislative competence issues is one which recognises that the Scotland Act 1998 was intended to be a ‘generous’ settlement of powers.  Whether or not to vote for independence in 2014 has to be considered against that backdrop, as well as what the consequences of independence for Scotland would be.

Anna Poole QC was one of the counsel involved in the Imperial Tobacco case. The views expressed here are her own, and should not be taken as the views of any of the parties.