Scottish independence referendum developments

The last couple of weeks have seen spats about Matt Qvortrup’s views on an independence referendum and its use by the Scottish Government and about Aidan O’Neill’s doubts about the legal competence of an independence referendum (most fully set out here; there’s also a report from the Daily Telegraph here).  Sir David/Lord Steel’s concerns have also had an airing (reported in Scotland on Sunday here).  Now, there’s a broadside from Adam Tomkins, John Millar Professor of Law at Glasgow University and a legal adviser to the Lords Constitution Committee.

This comes in the form of Tomkins’s evidence to the Commons Scottish Affairs Committee’s inquiry on a ‘referendum on separation for Scotland’, reported in today’s Scotsman here.  (The inquiry was previously discussed HERE).  Tomkins is highly doubtful about Holyrood’s power to call any referendum on independence, certainly one involving multiple options or a question targeted directly at independence.  He takes the view that the powers of the Scottish Parliament and Government are limited to ‘devolved matters’.  I find that unconvincing to an extent, as there are no ‘devolved matters’ when it comes to the Parliament’s powers – there are reserved and non-reserved ones. While ‘the Union of the Kingdoms of Scotland and England’ is a reserved matter, questions about issues related to negotiations to change that would seem to be within competence (hence the legal merit of the ‘two referendums’ approach).

Tomkins’s solution to the constitutional situation is rather baffling.  He accepts that the May election means there is a mandate for a referendum on independence, but that the UK Parliament should call it.  This means that a parliament with a majority committed to a referendum can’t call a referendum, but that a parliament with an overwhelming majority opposed to one should.  (I’ve pointed out earlier, HERE, that there are other and better ways to resolve this problem – notably a section 30 order.)  There are serious problems if Westminster should call a referendum.  Among them are the risks that the outcome will be seen to have been rigged by Westminster, so undermining its authority and legitimacy; and the consequent risk of the question returning to the agenda in short order, rather than being killed off as the unionist parties no doubt hope.

But the response of the Scottish Government to all of these well-founded and well-argued concerns is also disappointing.  Simply rubbishing these criticisms and wishing them away because of a claimed political mandate is not appropriate.  The constraints on Holyrood’s powers are real and very significant when it comes to independence issues.  The SNP has sought to use its political advantage to pretend the legal problems do not exist.  Perhaps they are taking a more pragmatic approach in private, but their public positions do them little credit.

The other development is that Jim Gallagher has been appointed as specialist adviser to the Commons Scottish Affairs Committee for their referendum inquiry (see the Committee’s formal minutes for 9 November, here – there’s no press statement about this).  Gallagher was formerly a senior official in the Scottish Executive, then Director General for Devolution in the UK Government.  He was also head of secretariat for the Calman Commission, and adviser to the Holyrood Scotland Bill Committee for their first inquiry (in the third parliament). He has also been a visiting professor at Glasgow Law School.  As such, it would be fair to regard him as a unionist eminence grise in the constitutional debates.  That committee no longer has an SNP member, after Eilidh Whiteford withdrew following a row about alleged threats of violence toward her from the chairman.  There was little doubt already about the partisan nature of this inquiry; Gallagher’s appointment reinforces it.

UPDATE, 14 November:  There have been a couple of interesting developments regarding EU membership of an independent Scotland since I last wrote about the issue.  There’s an important briefing paper from the House of Commons Library, here.  There’s also a post from Aidan O’Neill QC on Matrix Chambers’ ‘eutopia law’ blog, here, where he frames the issue in terms of individuals’ rights as EU citizens rather than those of states and state succession (or not).



Filed under Calman Commission/Scotland bill, Referendums, Scotland, Scottish independence, SNP, Westminster

5 responses to “Scottish independence referendum developments

  1. Pauline McNeill


    I believe the Tomkins postion is quite correct this has always been the legal position and it had been rumoured that the SNP knew this when they published the Draft bill- this is in my view has never been the central issue as if the Scottish people want one they shoud have their say – the question was always is a political one, so far there has not been any real evidence the Scottish people want a referendum as such -The SNP did not exactly campaing on this during the election ,as you know it was always possible that any bill which made it through the Scottish Parliament also has to pass the legal test of the Advocate General on the competancy and it has always been at that point it might be legally challenged, arguably they may be bound to take this position whether they want to or not – nothing in this is clear cut

  2. Vargatron

    Pauline, you are being rather disingenuous suggesting that “there has not been any real evidence the Scottish people want a referendum as such”. Whether or not the referendum was a central part of the campaign itself or not, it was quite clearly an item of the SNP manifesto and anyone who voted SNP without knowing that they are in favour of an independence referendum would probably not be mentally competent to vote! It has always been clear that the an independence referendum was a central plank of the SNP’s strategy, and the electorate were fully aware of that when they voted for a massive SNP majority. It can’t be avoided – the parties in favour of a referendum have more seats than all those opposed put together. You can’t get around that.

    A referendum as such is one of the things that was voted for when the electorate gave victory to the party which clearly stated its desire for in its manifesto. What else are we throw out? The minimum pricing bill? The council tax freeze? After all, these are mere manifesto commitments of the party that won, not something that people actually voted for.

    It would be different if there was no mention of a referendum in the manifesto, or the SNP decided that a unilateral declaration of independence was in order, but that’s not the case.

    The legal competence of Holyrood to hold to referendum is another matter, and one worthy of discussion, but it smacks of desperation to claim a lack of democratic (as opposed to legal) mandate for a plebiscite when it was in the SNP manifesto and known to everybody who voted.

    If you are trying to claim that the campaign strategy trumps the manifesto, then why have manifestos at all?

  3. dilzybhoy

    I would say pragmatism Vargatron. It’s well known that Scots prefer an SNP devolved Government. One with more powers. The other parties have recognised this and are promising just that. I suggested that the SNP knew this about 7 years ago. I predicted that they would become a minority government because of the National Question. No unionist party would form a Government with the SNP and why should they and more importantly why should the SNP form a coalition with any of them at all. I said when Annabel Goldie said openly that she would support the biggest party on an issue by issue basis, that the SNP would form the next Government even if it was a minority one. Folk laughed at me on the Forum. My reasoning behind this was that we didn’t need a referendum now or any-time soon. We needed to prove that Scotland can govern and more importantly again, that the SNP could govern. To show that the SNP is a party of Government. I was second guessing Alex Salmond’s strategy. That it was better to get a couple of terms in power first before pulling out the mandate card for the referendum. I don’t think the people of Scotland will crucify the SNP for not having the referendum this term. In fact, personally, I thinks we’d lose it and then that would set us back another 20 years. We have never been as close to Independence as we are now. I can almost feel it. But if we blow it, we’ll have to work for another 4 or 5 terms to get back to this position.

    The Manifesto lays out what we would like to do if we get into power. Now I’d say that most of our voters looked at it and said that looks good enough for me but I’ll just vote No for independence unless they can convince me that Independence is the right road to go. I don’t think convinced them yet. And a knock back could be a heavy slap in the face for the SNP. I’m not too worried about that because I think we have more than Mr Salmond in the SNP ranks. We can’t just treat the National Question with minimal respect. It’s a step we will not be able to come back from. It’s a step into the unknown. Voters need a shove. Or an Irish Coffee before we can depend on them to have the courage to take that step. We have to be very careful. The onus is on us to prove that they have nothing to fear from Independence. Voting SNP into Government is a different kettle of trout. We have to show the a devolved government no matter how strong their powers will just not be enough.

    The legal arguments are a moo point, they’re like a cows opinion. They don’t count. To paraphrase Joey. There is absolutely no legal argument of any merit to prevent us from being an independent nation if we did win a referendum. The scaremongering about whether we would have to re-apply to join the EEC are also a cows opinion. Who says we want in it anyway?

  4. Aileen McHarg

    It seems to me that this is shaping up to be Scotland’s Bush v Gore moment – i.e., there is absolutely no possibility of a ‘neutral’ view on the lawfulness of a referendum – certainly not by any of the commentators who have weighed in so far (e.g., Adam Tomkins is violently opposed to independence), and nor by the Supreme Court if/when it comes to that. The only sensible solution to this is a political one, and I agree with Alan that a Scottish referendum makes far more political sense than a UK one. Alas, as Aidan points out in his blog post, with the liberalisation of standing post-Axa, there is probably no chance of avoiding a judicial review – and I can’t see any way of the courts side-stepping the need to give judgment if a case comes before them.

  5. Pingback: The constitutional morass of Scottish independence: is there ANY proper way of doing it? « A National Conversation For England

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