Powers to legislate for a Scottish independence referendum

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.

They add:

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.

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10 Comments

Filed under Referendums, Scotland, Scottish independence, SNP

10 responses to “Powers to legislate for a Scottish independence referendum

  1. I have not the slightest doubt about Holyrood’s power to legislate for an independence referendum. Here’s what I said in a letter published in The Scotsman on 15 February:

    Yet again an article in your columns (“Scottish independence: No breakthrough in talks between Alex Salmond and Michael Moore”, Feb 14) repeats the claim that before the Scottish Government can lawfully hold an independence referendum there must be a transfer of powers (by means of a section 30 order) by the United Kingdom Government; and that this fact gives the UK Government the opportunity to attach restrictive conditions as the price of any such transfer. This is an all-too prevalent misconception.
    The Scottish Government’s present legal position on entitlement to hold a referendum is a strong one. Any conditions sought to be imposed by the UK Government can therefore be considered strictly on their merits and not as a price that must be paid, however reluctantly, in order to secure authority lawfully to hold a referendum at all.
    Notwithstanding the restrictions on the Scottish Government’s devolved competence contained in the Scotland Act 1998, no-one disputes that it can lawfully make proposals to, or hold conversations or enter into negotiations with, the United Kingdom Government about (i) altering the constitutional position of Scotland or (ii) widening the devolved powers of the Scottish Government and Parliament (including amending or removing some or all of the matters reserved to the United Kingdom which are set out in Schedule 5 of the Act).

    That being the case, it is inconceivable that any court would hold that it was beyond the legal power of the Scottish Government to promote legislation to enable it to consult the Scottish electorate (by means of a referendum) about whether the Scottish Government should or should not make such proposals to, or hold such conversations or enter into such negotiations with, the Government of the United Kingdom. That is precisely what a referendum on independence does, irrespective of the precise terms of the question asked.

    The Scottish Government’s position is, of course, reinforced by section 101(2) of the 1998 Act which provides that any provision of an Act of the Scottish Parliament is “to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly”.

    That does not, of course, exclude the possibility that referendum legislation might be challenged, as being beyond the Scottish Parliament’s powers, in the courts of Scotland and all the way to the UK Supreme Court. But any such challenge would fail.

  2. Professor Black’s letter (which I hadn’t seen earlier) is a significant expression of the view that an independence referendum would be within Holyrood’s legislative competence, though I share neither his certainty in the existence of those powers nor his view about their extent. If and to the extent they exist, I consider them to be more limited than he thinks – and those doubts are shared by most of the lawyers with whom I’ve discussed this. I don’t know if Professor Black gave advice earlier about this to the Scottish Government than in mid-February, but it’s telling that Bruce Crawford didn’t seem aware of a much stronger expression of support for his position than the equivocal ones he did cite.

  3. orpheuslyre

    Alan, it almost appears that you’re are making the lack of equivocation the test of the proposition…

    What do you make of Prof Black’s view on section 101(2) (which if I recall correctly is the same as the Anderson et al view)? Such precedent as there is tends to favour his view too (if I also remember correctly).

    But all that aside, is there not a significant danger for the UK government in bringing the case since it would involve some formal analysis of late-Diceyan assumptions about the UK Unitary Constitution that might prove impossible to sustain, leading to unintended consequences? Is that not perhaps the reason for the lack of equivocation from the UK government – i.e. they’re over-asserting, in order to camouflage a weakness?

    • The point about the lack of equivocation is that, if there’s any real doubt about legal competence, it acts as an invitation to litigation. Something as controversial as an independence referendum will be legally challenged if there is any scope – by an aggrieved private individual if not the UK Government. It seems to me inimical to the principle of inviting the people to express their views to have a lengthy and uncertain period of litigation first.

      I don’t see how section 101(2) materially helps. In my view, the form of ‘reading down’ section 101 requires can only apply when there is legislation passed by the Scottish Parliament (that is, it can’t apply generally or hypothetically). It has to be subject to the wider rules of interpretation, notably the ‘purpose and effect’ test in section 29(3). (There is an argument about the logical order of those two – do you read down before questioning purpose and effect, or assess purpose and effect and only then consider whether to read down or not? I’m not sure it makes any material difference here, however.) Thus, if there is a bill/Act that relates to reserved matters (including the Crown, the Union or Parliament), it simply cannot be saved by section 101. If a bill/Act ‘related’ to both reserved and non-reserved matters, section 101 can save it, but only insofar as the bill/Act relates to non-reserved matters. If and to the extent it relates to reserved matters, and unless it’s saved by one of the savings in section 29, it’s beyond Holyrood’s powers.

      That means, in my view, that a referendum bill relating to the Scottish Government entering into independence negotiations would be lawful; so far as it relates to a reserved matter (breaking the Union), it can be saved by a narrow reading (as it relates to the non-reserved matter of the Scottish Government). However, a referendum on that basis would clearly satisfy neither the SNP and Scottish Government (which wants a single referendum), or the UK Government (which wants a single, ‘clear’ and ‘decisive’ one). A referendum bill saying ‘should Scotland become an independent state?’ simply cannot be saved by section 101, however.

      • orpheuslyre

        Thanks Alan, that is a nuanced & helpful reply. (I had wondered about the logical order issue too).

        Will now go and chew it over!

  4. Dave

    Isn’t all this a matter of legal quibbling?

    The issue is pretty straightforward now, and will be even clearer by autumn 2014.

    If a Scottish citizen, or the UK Government, takes a challenge (ultimately) to the Supreme Court, are its judges going to rule that the Scottish Government cannot hold an independence referendum which has commanded a majority in the Parliament of Scotland, subsequent to a prior clear manifesto commitment?

    To do so, on a legal technicality, would be a gross subversion of democracy.

    I can’t conceive that the judiciary would contemplate taking such a step, and would be wise to steer clear of the debate. It’s a political, not a legal issue – it cannot be resolved by the courts. The people of Scotland must decide, much as a wife does when ahe contemplates leaving her husband.

    Anyone stupid enough (though there are those stupid enough) to embark on such a course would be likely to bring about the conclusion they are supposedly seeking to avoid – Scottish independence. If the desire of the nationalists to hold a referendum – and of the Scottish people to vote in one – is frustrated in such a way, that will undoubtedly have electoral repercussions in the subsequent Scottish general election. It would in effect be a referendum on independence. A successful legal challenge would simply be putting off the evil day.

    Time, effort, and money, would be better spent making a positive case for or against independence to the people of Scotland. I suspect the legal wrangling is a substitute for the weak arguments for retaining the Union from a Scottish perspective.

  5. Yet again, if our Parliament is not legally competent to test the popular support for independence then the legal situation is surely in contravention of the UN Human Rights sections on Self Determination? If the Parliament needs the permission of the body it seeks to secede from to hold a democratic vote then it is not free to self determine it’s status since such attempts can be frustrated by Westminster.

  6. It may not be clear cut in Law although I have always to the view that the future arrangements and settlement are a matter for the Scottish people , and that it could only be consultative under the Scotland Act in strict legal terms , it seems to me that in the event that whomsoever seeks to change the legal basis of the Scottish Government running such referendum that it is settled finally by the adoption of the section 30 order If there was a narrow majority for Independence and there was a legal challenge under the Scotland Act the court would have to make a legal determination , especially if there was challenge to the way it was run ,
    as then self-determination is not clear cut if there is a tiny margin in favour and there are challenges to the way on which it was run. It seems the best solution in reality whatever the legal situation to reduce the scope for challenge by just adopting a section 30 order and ensuring the Electoral Commission are over seeing the running of it.

  7. Pingback: Constitution Unit seminar on a Scottish independence referendum, 12 March « Devolution Matters

  8. Pingback: The section 30 order and under-18s voting in a Scottish referendum « Devolution Matters

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