The forthcoming Supreme Court Michaelmas term is likely to be dominated by a constitutional case of great import: a reference under the Scotland Act 1998, schd 6, para 4 over proposed legislation to hold an ‘advisory’1 referendum on the topic of Scottish independence. This naturally raises the question: what should such a case be called?
Here, it is important to distinguish that a case usually has two ways of being referred to: the ‘full title’, which appears in a long headnote listing all the parties with full names and any alternate names, and any cases joined to this appeal, etc, and the ‘case styling’ which is how humans refer to the case as shorthand, and usually names simply the two titular parties and abbreviates as far as possible, since the case name is merely a convenient handle to be discussed. So, the headnotes of the written case for the Lord Advocate, representing the Scottish Government,and the headnote in the written case of HM Advocate General for Scotland, on behalf of HM Government, give long titles, respectively:
Lord Advocate: In the Matter of A Reference by the Lord Advocate Under Paragraph 34 of Schedule 6 to the Scotland Act 1998 in Relation to Whether the Question for a Referendum on Scottish Independence Contained in the Proposed Bill Relates to Reserved Matter
HM Advocate General: In the Matter of A Reference by the Lord Advocate Under Paragraph 34 of Schedule 6 to the Scotland Act 1998; The Lord Advocate v Her Majesty’s Advocate General for Scotland
Instead, let us look to how the counsel in this case styled previous reference cases, viz the reference regarding the UN Convention Rights of the Child.2 This view gives us a better look at the state of styling practice.
Lord Advocate: The United Nations Convention on the Rights of the Child (Incorporation) Scotland) Bill Reference; short title: UNCRC Bill Reference
HM Advocate General: Re United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill; short title: UNCRC Bill
Once again, neither party agrees on the full title (which is normal; long titles are finnicky things).3 They do converge somewhat on the short titles, but HM Advocate General altogether omits the word ‘reference’, which is confusing and requires the reader to immediately recognise the reference refers not to the Bill per se but is shorthand for the reference.
In coming up with a general scheme for producing short titles (and it will only ever be a general scheme, subject to discretion with individual case stylings), it is helpful to look at comparative experience. In the Commonwealth of Massachusetts, the approach is simply to never name reference cases beyond , which are just referred to (in cases of references from the legislature) as Opinion of the Justices,4 with the requisite citation. This has the result that the highly consequential Opinion which led to same-sex marriage in Massachusetts has the same name as the most banal and irrelevant reference.5 The only distinction made in naming is that cases in answer to references from the Governor are called ‘Answer of the Justices’.6 Without meaning any disrespect to the judiciary or legal profession of the Commonwealth (for whom your correspondent has the highest esteem), this is a rather silly way to name things, as the whole point of a name is to provide a distinct and memorable identifier in addition to the precise citation. The law needs context and case styles are a lovely heuristic to help us recall the context and hold in our strained legal brains more cases than really ought to be possible to remember.
A better approach is to be found in Canada, where a longstanding reference jurisdiction is one of the most distinct features of that country’s constitutional law. The short titles approach is to to start references with Reference re and to be clear and succinct as possible. The system does an excellent job of shortening down long titles into instantly memorable points. For example:
long title: In the Matter of a Reference by the Governor in Council pursuant to section 53 of the Supreme Court Act, RSC 1985, c S-26, as set out in Order in Council PC 2010‑667, dated May 26, 2010, concerning the Proposed Canadian Securities Act
short title: Reference re Securities Act7
If a reference involves many different statutes or is otherwise too complex to have a nice shorthand like ‘Securities Act’, the approach is to simply find a neutral and accurate reference:
long title: In the Matter of Three Bills Passed by the Legislative Assembly of the Province of Alberta at the 1937 (Third Session) Thereof, Entitled Respectively: "An Act Respecting the Taxation of Banks" ; "An Act to Amend and Consolidate the Credit of Alberta Regulations Act"; and "An Act to Ensure the Publication of Accurate News and Information"; and reserved by the Lieutenant-Governor for the signification of the Governor General’s pleasure.
short title: Reference Re Alberta Statutes8
This approach is to be commended, and it is the official proposal of this publication that it be adopted for various reference jurisdictions in the UK.9. So, for the two Scottish references discussed today, I propose the following short titles:
Reference re Referendum Bill
Reference re UN Convention Bill
Hat Tip
A tip of the hat is due to Mr Rowan Hall, who first proposed this topic to me; his Substack and Twitter are very much worth a follow!
One of the main issues in the case is precisely what constitutes an ‘advisory’ referendum on a reserved matter↩︎
An even longer title for the same case is given Allister v SSNI [2022] NICA 15, para 119 per Keegan LCJ.↩︎
Here ‘justices’ refers to the justices of the Supreme Judicial Court.↩︎
See, eg, (1973) 364 Mass 838.↩︎
The devolution jurisdictions are the most prominent forms of reference, but there are others, including a power to reference issues to the Privy Council for judicial determination; Judicial Committee Act 1833, s 4.↩︎
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