Cracking a nut with a sledgehammer: the Lord Advocate’s Reference on a second Scottish independence referendum in constitutional context

Abstract

The UK Supreme Court’s judgment in the Reference by the Lord Advocate of Devolution Issues under Paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31 not only confirms that holding a second referendum on Scottish independence is outside the Scottish Parliament’s legislative competence but raises a series of important constitutional issues. These include the constitutional status of referendums, the importance of sub-state democracy and the sovereignty of the United Kingdom (UK) Parliament. Whilst the Court gives referendums more significance than they were previously thought to have, its reasoning invoking democracy and on parliamentary sovereignty suggests it has adopted a vision of the UK constitution in which UK-level authority is privileged over sub-state authority, to the detriment of subsidiarity and devolved autonomy.