Referendum Bill Consequentials – UK Constitutional Law Association

At paras 56-57 of their judgment, the court in Reference by the Lord Advocate of devolution issues ([2022] UKSC 31) declared: “The central issue is whether legislation for a referendum on Scottish independence would relate to a reserved matter…. The critical question is accordingly whether the proposed Bill would relate to the Union of the Kingdoms of Scotland and England or the Parliament of the United Kingdom. Section 29(3) [of the Scotland act 1998] provides, so far as material:

For the purposes of this section, the question of whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined…by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.”

Citing Martin v Most [2010] UKSC 10 para 49, Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61 para 16 and In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64 para 27, they went on: “The court has repeatedly held that the phrase “relates to” indicates something more than a loose or consequential connection.” Subsequently, a reconfirmation that the test to be applied should indeed be “more than a loose or consequential connection” reappears in the judgment – although, at para 65, the court also took account of an argument that a different “close connection” test had some authoritative support but, at paras 71-72, swept that aside and reaffirmed the “more than a loose or consequential” formula. In its conclusions, the court stated (para 82) : “It is plain that a Bill which makes provision for a referendum on independence – on ending the Union – has a more than loose or consequential connection with the Union of Scotland and England. That conclusion is fortified when regard is had to the effect of such a referendum…. It is equally plain that a Bill which makes provision for a referendum on independence – on ending the sovereignty of the Parliament of the United Kingdom over Scotland – has more than a loose or consequential connection with the sovereignty of that Parliament.”

The undoubted centrality of the “more than a loose or consequential connection” test deployed in the court’s reasoning and decision is clear. Less clear, however, is whether meaning can be given to the test. The “loose” element imports inevitable vagueness and may be problematic on that account – a more loose or less loose (tighter) connection must be difficult to calibrate, although, if opportunities arise, a pattern might emerge over time.  “Consequential”, however, has to be the main target for criticism. What does the word mean? The reason I ask the question – but am I alone in doing so? – is a fear that, in the context of its use in this test, its meaning is not being understood or is being misrepresented. Is it even being used to mean the opposite of its ordinary or dictionary definition? Any such misrepresentation must affect the value of the word as a crucial component of a legal test.

Mention of the dictionary, of course, cues consultation of Volume “C” of Murray’s New Dictionary (1893), rewarded by a whole column on “Consequential”, with nearly another column on “Consequentiality”, “Consequentially”, “Consequentialness”, “Consequentious”, “Consequently” and “Consequentness”. Murray confirms the impression also given by lesser but more recent sources that there are at least two strands of meaning to be given to “consequential”. One is as a synonym for “significant” or “important”, the meaning that derives from “having consequences”. The other suggests something whose impact is less than immediate or direct but (perhaps merely) “consequential” – although lawyers themselves would, I think, be unhappy about the designation of “consequential loss” as any less significant than its more immediate counterpart.

Some consequential questions:

1. In the context of the test for sufficiency of connection, what does “consequential” mean?
2. What term is to be used to describe the connection which is indeed held to be more than “consequential” – such as that held to exist in relation to an Independence Referendum Bill? Might it have to be an “inconsequential” connection?
3. Or, in the alternative, might “inconsequential” have been a better term in the first place for the disqualifying connection, in place of “consequential”?
4. Or might a different term altogether have been preferred, offering a meaning more evidently synonymous with or complementary to “loose”? And less inherently ambiguous?

Chris Himsworth is Emeritus Professor of Administrative Law, University of Edinburgh

(Suggested citation: C. Himsworth, ‘Referendum Bill Consequentials ’, U.K. Const. L. Blog (29th November 2022) (available at https://ukconstitutionallaw.org/))