AN INVOLUNTARY UNION? SUPREME COURT REJECTS SCOTLAND'S CLAIM FOR UNILATERAL REFERENDUM ON INDEPENDENCE

IF 1.5 2区社会学 Q1 LAW

Cambridge Law Journal Pub Date : 2023-03-01 DOI:10.1017/S0008197323000090

A. Sanger, A. L. Young

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引用次数: 1

Abstract

IN November 2022, the UK Supreme Court concluded that the Scottish Parliament did not have the competence to enact legislation to hold a second referendum on Scottish independence (Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31, [2022] All E.R. (D) 64 (Nov)). That an independence referendum would relate to matters reserved to the UK Parliament, specifically the Union and the Westminster Parliament, is in many senses the least remarkable aspect of the judgment. It does, of course, have important political ramifications for Scotland and the independence movement. From a legal perspective, the case has consequences for UK constitutional law and the relationship between domestic and international law. The reference came to the Supreme Court in a novel manner. The Scotland Act 1998 provides a specific mechanism through which the government Law Officers, both those advising Scotland and the UK, may refer a question to the Supreme Court as to whether Acts of the Scottish Parliament are within competence. According to section 33, such references are made within four weeks of the passing of the Bill through the Scottish Parliament, prior to the Bill receiving royal assent. However, this option was not available as the draft Bill had not yet been laid before the Scottish Parliament. Section 31 of the Scotland Act requires that the person in charge of a Bill states that, in their view, the Bill is within the competence of the Scottish Parliament. The Scottish Ministerial Code requires that any statement must first be cleared by the Scottish Law Officers. However, the Lord Advocate had concluded that, in her opinion, the Bill was not within the competence of the Scottish Cambridge Law Journal, 82(1), March 2023, pp. 1–8 © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge doi:10.1017/S0008197323000090

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非自愿的结合？最高法院驳回苏格兰单方面举行独立公投的主张

2022年11月，英国最高法院得出结论，苏格兰议会没有能力颁布立法，举行关于苏格兰独立的第二次全民公决(参见1998年苏格兰法案[2022]UKSC 31， [2022] All E.R. (D) 64 (Nov)附表6第34段中关于权力下放问题的勋爵提问书)。在许多意义上，独立公投将涉及留给英国议会(特别是欧盟和威斯敏斯特议会)的事务，这是该判决中最不引人注目的方面。当然，它确实对苏格兰和独立运动产生了重要的政治影响。从法律角度来看，此案对英国宪法以及国内法与国际法的关系产生了影响。最高法院以一种新颖的方式提起了诉讼。《1998年苏格兰法》提供了一个具体的机制，通过该机制，为苏格兰和联合王国提供咨询的政府法律官员可以向最高法院提交关于苏格兰议会的法案是否在权限范围内的问题。根据第33条，在苏格兰议会通过该法案后的四周内，在该法案获得王室批准之前，应提出此类参考意见。但是，由于法案草案尚未提交苏格兰议会，因此没有这一选择。《苏格兰法》第31条要求法案的负责人声明，他们认为该法案属于苏格兰议会的权限范围。《苏格兰部长法典》要求，任何声明必须首先得到苏格兰法律官员的批准。然而，首席辩护律师的结论是，在她看来，该法案不属于苏格兰剑桥法律杂志，82(1)，2023年3月，第1 - 8页©作者，2023年的权限。剑桥大学出版社代剑桥大学法学院出版，doi:10.1017/S0008197323000090

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来源期刊

Cambridge Law Journal LAW-

CiteScore

1.10

自引率

6.70%

发文量

期刊介绍： The Cambridge Law Journal publishes articles on all aspects of law. Special emphasis is placed on contemporary developments, but the journal''s range includes jurisprudence and legal history. An important feature of the journal is the Case and Comment section, in which members of the Cambridge Law Faculty and other distinguished contributors analyse recent judicial decisions, new legislation and current law reform proposals. The articles and case notes are designed to have the widest appeal to those interested in the law - whether as practitioners, students, teachers, judges or administrators - and to provide an opportunity for them to keep abreast of new ideas and the progress of legal reform. Each issue also contains an extensive section of book reviews.