Stephen Tierney: The Lord Advocate’s Reference: The Constitutional Significance of Referendums and Electoral Processes

UK Constitutional Law Association

TheLord Advocate’s Referenceto the Supreme Court asks if the proposedScottish Independence Referendum Billrelates to reserved matters under the Scotland Act 1998. Core to the Lord Advocate’s case is the claim that thereferendum proposed by the draft bill would be ‘advisory’, ‘consultative’ or ‘non-binding’. If this is the case then it can be argued that the Draft Bill and the referendum it proposes to authorise would not ‘relate to’ the reserved matters of the Union and Parliament by virtue of having ‘no effect in all the circumstances’ – the test set by Scotland Act 1998 s.29(3).

In anearlier postI queried whether the referendum proposed by the Scottish Government could be said to have no ‘effect’ within the context of the United Kingdom constitution where constitutional conventions now seem to attach both to the holding of referendums and the implementation of their results. In this post…

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