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).