A Scottish Minister, when introducing a Bill into the Scottish Parliament, is required by section 31(1) of the Scotland Act 1998 to state that, in his or her view, the Bill would be within the legislative competence of the Parliament. Such a statement is required, by paragraph 3.4 of the Scottish Ministerial Code, to be “cleared” with the Scottish Law Officers (in practice the Lord Advocate).
It was because the Lord Advocate did “not have the necessary degree of confidence” to clear such a statement in relation to the draft Scottish Independence Referendum Bill that she was requested by the First Minister to refer the question whether the Bill would be within the legislative competence of the Parliament to the Supreme Court in terms of paragraph 34 of Schedule 6 to the Scotland Act.
To date, the Supreme Court has not accepted the reference but has told both the…
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