I spent Thursday morning at a conference in Edinburgh organised by The Scotsman about a Scottish independence referendum. There’s a report of the event from Eddie Barnes here. As I noted earlier, the star turns were Michael Moore MP, Secretary of State for Scotland, and Bruce Crawford MSP, Cabinet Secretary for Parliamentary Business and Government Strategy, though unsurprisingly, there wasn’t much agreement between the two politicians. Moore emphasised the need for clarity in the referendum proposition and the question; Crawford pointed out the array of commissions and groups looking at ‘more powers’, and questioned how Scottish voters could take seriously such an offer when it was so unclear. One of the few points on which they did agree was to applaud the choice of Edinburgh as home for the new ‘Green Investment Bank’ (and see the discussions by David Maddox here and here of the politics behind that decision).There were, however, two points on which Crawford seemed to make significant statements.
The first concerned regulation of the referendum. The Scottish Government now appears to accept that the Electoral Commission should not just regulate the conduct of the referendum campaign including donations (which it accepts in its referendum consultation), but also discharge its usual function of advising on the ‘intelligibility’ of the question – which involves extensive testing of its wording with focus groups to eliminate possible sources of misunderstanding. When it published its consultation paper it limited this part of the Commission’s role, saying that its proposed ballot paper had been designed to comply with Electoral Commission guidelines, and that it would take advice from the Commission (and others) about the question – but did not embrace the statutory role in this that the Commission would have under the Political Parties, Elections and Referendums Act 2000. It’s not clear to me if the Scottish Government have agreed that they will be bound by the Commission’s advice, but agreement on the Commission undertaking question-testing addresses many concerns from opponents of independence about the ‘fairness’ of a referendum.
The other point emerged when Crawford repeated a long-standing SNP/Scottish Government claim, that ‘many legal authorities’ agree that the Scottish Parliament has power to call a referendum, even without a section 30 order. When I challenged him on this, he could cite two. One was the textbook by Chris Himsworth and Christine O’Neill Scotland’s Constitution: Law and Practice, first published in 2003(details from the publisher here and Amazon here). The other was a post on the UK Constitutional Law Group blog. Neither of these sources is particularly useful in supporting this proposition.
Himsworth and O’Neill say
Because [a referendum bill’s] purpose could be interpreted as the testing of opinion rather than the amendment of the constitution, such a Bill would almost certainly be within the Parliament’s powers.
A statement that ‘because X could be regarded … it would almost certainly be’ is hardly unequivocal. Moreover, Himsworth and O’Neill appear to accept that a good deal depends on the wording of the question that might be asked – that would affect whether a bill ‘could be interpreted as the testing of opinion’.
The UK Constitutional Law blog post referred to by Crawford would seem to be the one by Gavin Anderson et al, which appeared on 31 January 2012, and available here. It was published long after SNP ministers referred to a weight of independent legal opinion as supporting their position. (I presume they’re not referring to Adam Tomkins’s earlier post on the same blog, as that argues forcefully that Holyrood has no such power.) Again, the position is hardly unequivocal; Anderson et al say:
we believe that the legality of a referendum Bill passed under the Scotland Act as it currently stands is a more open question than has been generally acknowledged. In other words, we believe that a plausible case can be made that such a Bill would be lawful, and believe it is important that these arguments are clearly set out.
The risk to the authority of the courts … therefore suggests that the UK and Scottish Governments would indeed be wiser to agree on an express transfer of powers.
It’s hard to avoid concluding from this that the Scottish Government are well aware of how shaky the legal foundations are for their position that an independence referendum would be within devolved legislative competence, The most that their chosen authors claim is a plausible case for their equivocal position, far from the ringing endorsement one might have expected. Indeed, Crawford acknowledge this; he said that the Scottish Government ‘doesn’t object’ to the making the section 30 order, ‘to put the power beyond doubt’.
The UK Government consultation on the referendum bill ends on Friday, though the Scottish Government’s has another two months to run – and has apparently attracted over 4000 responses so far.