Robert Leckey: Constitutionalizing Canada’s Supreme Court

Professor Robert Leckey CROSS-POSTED FROM THE I.CONNect BLOG.

A dispute over the legality of a politically questionable judicial appointment has resulted in what pundits call a stinging defeat for Canada’s prime minister and a bold assertion by the Supreme Court of Canada of its independence and constitutional status.

Recently, in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, the Court advised that Conservative Prime Minister Stephen Harper’s appointment of the Honourable Mr. Justice Marc Nadon to the Supreme Court of Canada was void. He had been sworn in five months earlier. On a six-judge majority’s reading of the Supreme Court Act, Justice Nadon was unqualified to fill one of three spots reserved for jurists trained in the law of Quebec. Quebec is the federation’s sole civil-law jurisdiction and the only province with a French-speaking majority.

In addition, the Court opined that the Parliament of Canada’s ex post amendments to the Supreme Court Act purporting to clarify that Justice Nadon was eligible were unconstitutional. They amounted to a constitutional amendment requiring the unanimous consent of Parliament and all provinces.

While many had criticized the political wisdom of the prime minister’s selection of a semi-retired judge on nobody’s shortlist, the constitutional issues turn on the interpretation of the Supreme Court Act and of the country’s constitutional amending formula.

General qualifications for appointment appear in section 5 of the Supreme Court Act. It refers to current and former judges and to a person who “is or has been” a lawyer of at least ten years standing at the bar of a province. The controversy bore on section 6’s specification that three justices be drawn “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Justice Nadon came instead from the Federal Court of Appeal. Although formerly a member of the Quebec Bar for more than ten years, he was no longer a member. Using a process set out in the Supreme Court Act, the federal executive referred questions to the Court for its opinion.

The validity of the initial selection of Justice Nadon turned on the relationship between the Act’s general and specific provisions and the significance, if any, of the different wording in sections 5 and 6 (“is or has been,” “among”). The majority of the Court concluded that Quebec appointments needed to be current judges of the named Quebec courts or current members of the Quebec Bar. Those judges stated the primary basis for their decision to be the Act’s plain meaning and the differences in wording. A single judge dissented.

It is striking for an apex court—even when the government asks it to weigh in—to reject an appointment to its ranks on the basis that the government had misinterpreted the relevant statute. But the Court went further. It grounded a formalistic exercise of statutory interpretation turning on the niceties of “is or has been” versus “among” in the historic compromise guaranteeing one-third of the Court’s judges to Quebec. For the majority justices, their interpretation of section 6 advanced the “dual purpose of ensuring that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court,” maintaining that province’s “confidence” in the Court (para. 18).

Exaggerating the opinion’s political salience would be difficult. At a moment when Quebec is governed by a separatist party, and less than three weeks before Quebecers vote in a provincial general election, the Supreme Court of Canada explicitly declared itself to be an institution that guarantees a voice for Quebec’s “social values” in federal institutions. Commentators read the entire judgment as a declaration of the Court’s independence from a prime minister and executive perceived as disdainful towards democratic institutions and tone-deaf regarding Quebec. By implication, the majority’s reasoning made the choice of Justice Nadon not only formally invalid, but also substantively disrespectful of Quebec. One can speculate on the depth of the majority’s commitment to this substantive point by asking whether it would have upheld the appointment had the federal government named Justice Nadon to an eligible Quebec court the day before appointing him to the Supreme Court.

The opinion’s most enduring contribution, though, arises from its answer to the question concerning Parliament’s attempt to amend the Supreme Court Act. Parliament had created the Court by statute in 1875. The Court did not replace the Judicial Committee of the Privy Council as the federation’s tribunal of last resort for nearly three-quarters of a century. In its final legislative exercise for Canada, the Parliament of the United Kingdom brought into life the Constitution Act, 1982. The latter lists instruments that the Constitution of Canada includes, but does not mention the Supreme Court Act. Nevertheless, the new constitutional amending formula refers twice to the Supreme Court. The Court appears among the “matters” amendable by Parliament with the consent of a majority of provinces. Its “composition” figures among the “matters” amendable only on unanimous consent of Parliament and the provinces.

In opining that Parliament’s attempt to modify the Supreme Court Act to clear the way for Justice Nadon was unconstitutional, the majority stated that reference to the Court’s “composition” in the amending formula constitutionalized sections 5 and 6 of the Act. By implication, it also constitutionalized the Court’s continuing existence, “since abolition would altogether remove the Court’s composition” (para. 91). The majority added that the more general reference to the Court constitutionalized its “essential features … understood in light of the role that it had come to play in the Canadian constitutional structure by the time of patriation” (para. 94). In effect, the amending formula drastically reduced the scope for change to the Supreme Court by ordinary federal statute.

Moreover, the Court confirmed that the sources of the Constitution of Canada now include not only the previously known hodge-podge of royal proclamations, imperial statutes and orders in council, federal statutes, and unwritten principles. Those sources also include parts of another federal statute, the Supreme Court Act—some provisions identified by number as well as whatever might in future be determined to embody the Court’s “essential features.” Indeed, by referring to the “role” that the Court has come to play, the majority judges hint that the Court’s constitutionalized features may not track directly to specifiable legislative provisions, instead arising from practice. Presumably the same applies to other institutions that the amending formula constitutionalized, such as the Senate of Canada, on which the Court will pronounce in due course.

Whatever the political fallout for the prime minister, the Court’s advisory opinion merits careful attention by those who study sources of constitutional law, amending formulae, and how institutions’ constitutional status may change over time.

Robert Leckey is an Associate Professor of Law and William Dawson Scholar at the Faculty of Law, McGill University. He is scheduled to speak in the United Kingdom and South Africa about his forthcoming book Bills of Rights in the Common Law on the following dates in 2014: King’s College London – 12 May; Oxford University – 13 May; Unisa, Pretoria – 15 May; Cape Town – 19 May; University College London – 17 June; London School of Economics – 29 October. Further details for these talks may be obtained from the venues hosting the talks.

(Suggested Citation: Robert Leckey, Constitutionalizing Canada’s Supreme Court, Int’l J. Const. L. Blog, Mar. 25, 2014, available at: http://www.iconnectblog.com/2014/03/constitutionalizing-canadas-supreme-court  or R. Leckey, ‘Constitutionalizing Canada’s Supreme Court’ U.K. Const. L. Blog (1 April 2014) (available at http://ukconstitutionallaw.org/)).

 

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News: The House of Commons Political and Constitutional Reform Committee Reports on Royal Consent

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The House of Commons Political and Constitutional Reform Committee reported on the practice of Royal Consent. Royal Consent was discussed on this blog in a post by Thomas Carter Adams. The doctrine requires the consent of the Queen, or, in some situations, the Prince of Wales, before a bill which affects their personal interests is discussed in Parliament.

Unsurprisingly, the Committee recommends that this requirement be abandoned.  The Committee – like the correspondents to the earlier blog post – had some difficulty identifying precisely what type of constitutional rule this was: whether it was an aspect of the prerogative, a rule of parliamentary procedure, or a convention.  It concludes that it is a rule of parliamentary procedure, and so falls within the province of each House of Parliament to modify or remove.  The Committee concluded that the provision could be abolished by the Houses making an address to the Crown followed by a Resolution of each House.

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Alexander Horne: Is there a case for greater legislative involvement in the judicial appointments process?

Alexander HorneThe dramatic increase in public law and human rights cases coming before the UK Supreme Court (and the Appellate Committee before it) means that the UK’s top court is more frequently determining essentially socio-political questions. In addition, in recent years, the judiciary has pressed for a rather more expansive definition of judicial independence, with a greater emphasis on the institutional independence of the judiciary. This has tended to lead to more powerful leadership roles, for senior judges in particular.

These changes, coupled with a greater focus – by both the judiciary and the executive – on the doctrine of the separation of powers, has resultedin judges taking responsibility for matters which, prior to theConstitutional Reform Act 2005, would most likely have been left to the Lord Chancellor (and his former Department). In the light of this expanding judicial role, now seems an appropriate time to question whether any new mechanisms for increasing political accountability, such as a parliamentary confirmation procedure, are needed for appointment to the most senior judicial offices (including, but perhaps not limited to, the UK Supreme Court, given the growing managerial roles played by the Lord Chief Justice and Heads of Division).

Confirmation processes are often dismissed out of hand – frequently with negative references to the partisan approach seen in the United States of America. Lord Neuberger (then Master of the Rolls) captured the common view of hearings before the USSenate Judiciary Committee, when he observed:

“Once you start muddying the water and involving the legislature in the appointment of judges, you risk going down a slippery slope, not quite knowing where it will end. The last thing that we want is the sort of thing you see in the United States. I do not pretend that it happens with every appointment to the Supreme Court but we all remember interviews and proposed appointments that led to something of a jamboree or a circus. I do not think that we want that.” (Evidence to the House of Lords Constitution Committee, November 2011)

 Of courseviews on the US experience do not go entirely one way. Graham Gee has previously considered whether the lessons drawn by UK commentators are necessarily justified; suggesting that most hearings do not generate political conflict and that in any event, “hearings are not the primary source of the politicization of the process” given the important role that partisan considerations play in the President ‘s nominations for the federal bench. Nonetheless, it must be acknowledged that a knee jerk reaction against the US procedure remains commonplace.

Critics of hearings frequently point to the potential impact on judicial independence. In its report on Judicial Appointments, published in March 2012, the House of Lords Constitution Committee summarised many of the oft-heard objections when it concluded that:

“Parliamentarians should not hold pre- or post-appointment hearings of judicial candidates, nor should they sit on selection panels. Political considerations would undoubtedly inform both the selection of parliamentarians to sit on the relevant committees or panels and the choice of questions to be asked.”

In spite of this, issues around judicial independence and accountability are now receiving more interest from academics and some parliamentarians. The question of whether to introduce parliamentary hearings received some attention during the consideration of theconstitutional reformswhich eventually led to the passage of the Constitutional Reform Act 2005. Scholars such as Keith Ewing and Robert Hazell and the former Permanent Secretary of the then Lord Chancellor’s Department, Sir Thomas Legg QC,argued that nominees for the new Supreme Court could be interviewed or confirmed by Parliament. The Study of Parliament Group published The Changing Constitution: A Case for Judicial Confirmation Hearings?, a short report by this author, in 2010.  Areport by Policy Exchange in 2011 suggested that:

“[A] more radical approach to judicial selection should at least be considered – namely legislative oversight of appointments to the Supreme Court. This would have the advantage of ensuring that judges retained their independence, but would be subject to Parliamentary scrutiny prior to their appointment.” (Policy Exchange, Bringing Rights Back Home)

And in 2012, the think-tank CentreForum published a report by Professor Alan Paterson and Chris Paterson, entitled Guarding the Guardians (the title may give some clue as to their conclusions)

The recently concluded project on the Politics of Judicial Independence, involving the Constitution Unit, Queen Mary and the University of Birmingham, is another good example – posing challenging questions about the balance between judicial independence and accountability – asking“who is now accountable for the judiciary, and to whom?” and “what are the proper limits of judicial independence?”.  Views on the subject of confirmation hearings were splitin a seminar on the subject of Judicial Independence, Judicial Accountability and the Separation of Powers, but a number of potential advantages were identified, including the fact that hearings could enhance the legitimacy of judges. Moreover, recent experience of the introduction of hearings in Canada, addressed in a series of articles (e.g. Peter Hogg, Appointment of Justice Marshall Rothstein to the Supreme Court of Canada, (2006) 44 Osgoode Hall Law Journal 527), suggest that one does not have to emulate the contentious US model.

Following in the footsteps of these earlier studies, the Study of Parliament Group has just published a new research paper, by the author of this post, entitled Is there a case for greater legislative involvement in the judicial appointments process?  It seeks to address some of the conceptual arguments for greater political accountability in the appointment process and also considers the expanding ambit of judicial independence. Focusing on whether parliamentarians should have a role in the judicial appointments process, it asks what is meant by political accountability in the context of judicial appointments and considers what evidence there is that greater accountability is necessary.

The paper examines whether new methods of accountability could be introduced in the UK without impacting on judicial independence, and seeks to shed light on these questions by assessing the recent move by the UK Parliament to introduce pre-appointment hearings for other public appointments. Finally, it evaluates whether such processes are readily transferable and, if so, whether UK parliamentary committees are well placed to undertake this task.

The paper concludes that the introduction of pre-appointment hearings for the most senior judicial appointments would have a number of benefits and could help ensure that independent and robust candidates are appointed.  As to the question of politicisation, it considers that as long as there is a continued role for an independent judicial appointments commission to recruit and screen candidates at first instance, any significant politicisation of the process could be avoided.

Whether recent examples of workable models from the UK, or from other jurisdictions, can convince the senior judiciary of the merits of such a change is clearly open to some doubt. But the author hopes that this new work might nonetheless inform any future debate on these issues.

This blog post is published to coincide with the launch of a new Study of Parliament Group Research Paper on Judicial Appointments.

 Alexander Horne is a Barrister (Lincoln’s Inn) and is currently the Legal and Senior Policy Adviser at the House of Commons Scrutiny Unit. The SPG Paper ‘Is there a case for greater legislative involvement in the judicial appointments process?’ is based on an MPhil thesis undertaken part-time at Queen Mary, University of London between 2010-13.  The views expressed are those of the author and should not be taken to reflect the views of any other person or organisation.

(Suggested Citation: A. Horne, ‘Is there a case for greater legislative involvement in the judicial appointments process?’ U.K. Const. L. Blog (27th March 2014) (available at  http://ukconstitutionallaw.org/).

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Cambridge conference on Public Law: Process and Substance

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In September 2014, the University of Cambridge’s Faculty of Law and its Centre for Public Law will host a major international conference on Public Law. Following an outstanding response to the call for papers, the conference convenors are delighted to be able to publish the conference programme. The conference will bring together around 60 speakers—along with approximately 100 other participants—from across the common law world, to engage in debate on the theme of “Process and Substance in Public Law”. The conference will consist of four plenary sessions and fifteen parallel panel sessions. A full list of speakers, together with the titles of their papers and abstracts, can be found on the conference website here.

Information about how to register for the conference, together with a link to our secure online booking facility, can be found here. Any queries about registration that are not answered by the information on our website should be directed to the conference administrator via publiclawbookings@law.cam.ac.uk.

Further information about the conference can be found on our website. Updates are posted to our Twitter account: @PublicLawConf. The conference convenors are very grateful to Hart Publishing for their generous sponsorship of this event.

Professor John Bell, Dr Mark Elliott and Dr Jason Varuhas (convenors) 
Dr Philip Murray (assistant convenor).

 

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Scot Peterson: Constitutional Entrenchment in England and the UK

peterson_scotFrequently people think that there are only two ways address flexibility in a constitution: to legally entrench an entire document and to protect it with strong judicial oversight, or to have a political constitution and a sovereign parliament, which, in the words of A.V. Dicey, ‘has … the right to make or unmake any law whatever….’ One aspect of this sovereignty is that parliament cannot bind itself: ‘That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour has always ended in failure.’

Parliament has regularly used language limiting its future options. The Bill of Rights (1688) says that the rights declared there ‘shall be declared, enacted, and established by Authority of this present Parliament, and shall stand, remain, and be the Law of this Realm for ever’. More recently, Parliament promised in the European Union Act 2011 to hold a referendum on any law that increased the competencies of the EU and put in place mechanics for holding itself accountable through judicial review. Are these attempts really as pointless as Dicey claims?

The intention of the convention parliament in 1689 was to put an end to the conflicts of the preceding seventy years (interrupted by the reign of Charles II). The more recent act, too, was a product of what preceded it. Originally the Labour government had ruled out a referendum on the Treaty Establishing a Constitution for Europe (2004), which among other things introduced new shared competencies with member states. When the press speculated about Labour’s prospects before the 2004 European Parliament Elections (June 2004), Tony Blair announced that there would be a referendum on the treaty. After the treaty collapsed (because it was rejected in France and the Netherlands), the member states entered into the Lisbon Treaty, which had many of the same characteristics as the proposed constitution. Conservatives accused Labour of inconsistency in being unwilling to hold a referendum on the Lisbon Treaty, and in their manifesto promised a referendum lock on any future transfers of competencies, so that politicians would not be able to waver for short-term, political purposes. That promise became part of the coalition agreement in 2010 and was enacted into law.

The language used by parliament in both of these cases is a commitment device. It need not even be judicially enforceable to constrain (impose additional costs on) future choices by the legislature. Public embarrassment, through a newspaper’s exposure of inconsistency, is a practical means of ensuring accountability, so long as the newspapers do their job. And, as under the Human Rights Act 1998, the legislature may permit the courts to point out, but not to correct, inconsistency with entrenched law. An overly simplistic distinction between codification and a political constitution eliminates complex differences between these tools, and wastes resources that should be available to policy makers.

Scot Peterson is the Bingham Research Fellow in Constitutional Studies and Junior Research Fellow in the Social Sciences at Balliol College, University of Oxford.

(Suggested citation: S. Peterson, ‘Constitutional Entrenchment in England and the UK’ U.K. Const. L. Blog (25th March 2014) (available at  http://ukconstitutionallaw.org/).

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Call for Papers: Gilbert + Tobin Centre of Public Law 2014 Postgraduate Workshop in Public Law Call for Papers

The Gilbert + Tobin Centre of Public Law in the Faculty of Law, University of New South Wales invites abstracts for its 2014 Postgraduate Workshop in Public Law which will be held on 17-18 July. The Workshop is an opportunity for higher degree research students in the field of public law to gain experience in presenting their work to their peers and the wider academic public law community in a critically constructive yet supportive environment. While there are several generalist conferences held each year which postgraduate students can attend, the Centre’s biennial Postgraduate Workshop in Public Law is focused on public law issues and as such is an opportunity for students to network with others working in their area.

We invite abstracts from currently enrolled postgraduate research students (Masters, PhD and SJD students) studying full-time or part-time in the field of public law. We welcome abstracts that bring a constitutional or administrative law focus to a range of contemporary issues such as human rights protection, native title and indigenous land rights, national security, federalism, refugees and migration law, executive power, electoral law, and the judiciary.

The Workshop will follow a roundtable discussion-based format, with presenters having 15-20 minutes to speak and then ample time being left in each session for questions and discussion by all participants. The event thus provides an opportunity for participants to receive detailed feedback on their work and establish what will hopefully become an ongoing dialogue with others researching in the field. In preparing abstracts, presenters should bear this format in mind. Ideally they should aim to briefly convey the broader context of their thesis before focussing on a discrete aspect for more detailed consideration. Methodological or substantive issues may be selected as the basis of the presentation. The collected abstracts from the Workshop will be published online at the Gilbert + Tobin Centre website, enabling further contact between those attending the Workshop and others interested in their research.

We typically receive more proposals for papers than we are able to accommodate in the program, so abstracts will be refereed for clarity and suitability to a workshop focussed upon public law (broadly defined). Upon acceptance the presentations will be organised into thematic streams which will comprise the bulk of the final program for the Workshop.

Keynote

The 2014 Workshop will open with a keynote address by Professor Kim Rubenstein from the Australian National University, reflecting on her research in the public law field and how this speaks to the experience of conducting higher degree research in public law. Her paper will examine different conceptions of citizenship and membership in Australian public law and public life.

Logistics and Registration

The event, including a dinner for Workshop participants on the evening of 17 July, is FREE to all delegates, who are asked to cover their own costs for accommodation and travel to Sydney. Some limited funds are available for travel assistance to those delegates who can make a case based on special need. But we request that support is sought in the first instance from a delegate’s home institution.

To register, please send the following to gtcentre@unsw.edu.au, being sure to put ‘Postgraduate Workshop’ in the subject line:

• Your name, institutional affiliation and contact details; and

• a brief abstract of your paper (max. 400 words).

Registrations with abstracts must be submitted by 19 May 2014. Acceptance will be confirmed by correspondence no later than 2 June.

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Nick Barber: After the Vote: Regulating Future Independence Referendums

 Nick1In a few months time Scotland will vote on independence.  In my last post on the topic I discussed some of the consequences of a yes vote: the problems that would be raised around the currency, Scotland’s membership of the EU, and, more generally, the difficulties presented by the tight time-fame set by the Scottish Government for negotiation.  That post should have given wavering ‘yes’ voters pause for thought; the path to independence is harder and riskier than the Scottish Government’s optimistic White Paper claims.   In this post I will discuss one of the consequences of a no vote: its implications for subsequent independence referendums.  This post should, perhaps, cause wavering ‘no’ voters to reflect. The independence referendum is, or should be, a once in a generation chance to leave the Union.  It would be a mistake to assume that a second referendum will be held any time soon.

There are problems with constitutionalising a right to secession.  In a classic article,  written as the states of Eastern Europe were recasting their constitutional orders in the early 1990s, Cass Sunstein argued that constitutions should not normally incorporate a right to secede.  Sunstein argued that such rights inhibited the creation of a united, effective, state.  The constitutional possibility of secession might encourage regions to consider independence on a regular basis, and, on the other side of the equation, the remainder of the state will be aware of secession as an ever-present possibility.  As Sunstein argues, this may inhibit long-term planning: why should the state engage in projects that principally benefit the region, knowing that the region might leave at anytime?  And when the project benefits the whole state, but requires regional cooperation, how can the state be sure of this support?  More darkly, Sunstein warns there is a risk of blackmail.  The region can use a threat of secession to put unfair pressure on the remainder of the state.   Finally, as Sunstein points out – and as we have reason to know all too well – questions of secession tend to stir emotions more deeply than other political questions.  The intemperate character of debate around the issue can, in itself, harm the capacity of the state to act as a coherent unit.

Sunstein’s prescription – a denial of the right to secession – is not open to the United Kingdom, which has already recognised the right of certain of its territories to leave the Union.  The Northern Ireland Act 1998 contains a legal right for that territory to secede in some circumstances, and whilst Scotland and Wales lack such a legal right, it has been accepted, perhaps for quite sometime, that they are entitled to determine their own constitutional fate.  After the SNP gained control of the Scottish Parliament it was a matter of when, not if, a vote on independence would be held.

But whilst Sunstein’s prescription may be inappropriate, his diagnosis remains accurate.  The bare possibility of a second referendum after 2014 may have a destabilising effect on British politics for the reasons he identified.  The risk of a second referendum may cause the rest of the UK to be reluctant to adopt schemes or make decisions that benefit Scotland at the expense of the remainder of the country: why buy warships from Scottish shipyards, rather than from their English competitors, when Scotland may become a separate state at any time?  And, recalling Sunstein’s fear of blackmail, there is a risk that Scotland will use the threat of independence to exercise a disproportionate say over UK policy-making: agree with us, or we leave.  In short, the continued possibility of independence may frame political debate within in the UK in negative and corrosive terms, with Scotland’s interests understood as distinct from, and potentially in tension with, those of the rest of the UK.  There is a danger that the possibility of secession will lead to Scotland becoming a semi-detached part of the Union, always on the verge of exit.

This problem could be addressed by regulating the capacity of the Scottish Parliament to call independence referendums.  Under the current devolution settlement the Scottish Parliament is able to hold an advisory referendum on independence at any time.  Admittedly, this point is not beyond dispute:  most notably, Adam Tomkins has argued against this view, contending that the Scottish Parliament lacks this power, but, for reasons I have set out on this blog, I think it unlikely he is correct on this point.  The Scottish Parliament does, though, clearly lack the power to hold a binding referendum on independence: at present, this requires the agreement of Westminster.  The status of the 2014 referendum was secured after an agreement between the Scottish and Westminster Governments.   Whilst as a matter of law, the United Kingdom Parliament could still refuse to accept the outcome of the 2014 referendum, as a matter of political practice the Edinburgh Agreement is sufficient to render the vote binding.

Any attempt to regulate the holding of independence referendums after 2014 would, if the Sewel Convention were adhered to, require the support of both the Scottish and Westminster Parliaments.  Conferring on the Scottish Parliament the capacity to hold a binding referendum might render the concomitant regulation of that power more attractive.  The  Scotland Act 1998 could be amended to legally recognise what is an existing constitutional fact: that the Scottish people have constituent power, that they possess the capacity to create a sovereign state by seceding from the United Kingdom.  In addition to this, the Scottish Parliament could be accorded the power to call a binding referendum on independence.  The Scottish Parliament, rather than Westminster, is best placed to determine when the Scottish people wish to hold such a vote.

Coupled with the conferral of this new power on the Scottish Parliament should come limitations on its exercise, to mitigate – if not cure – the problems that the right to secession brings.  Just because the constitution accords Scotland the right to secede, it does not follow that the United Kingdom need accord the Scottish Parliament an untrammelled power to determine the procedures through which that right is exercised.  It is common for the constitution of a country – determined at the level of the state – to set the conditions for secession.  Having accorded a region the right to secede it would be wrong for the state, through the constitution, to limit the right in ways that make secession effectively impossible.  But it would be appropriate for the state to set conditions on the secession right that serve to protect the remainder of the state’s territories and the political community of the state as a whole.  With this in mind, the capacity of the Scottish Parliament to hold a referendum should be constrained in two respects.

First, there should be a constraint of the frequency of independence referendums.  They should be rare: there should be a long period of time between the 2014 referendum and the next vote.  The capacity of the Scottish Parliament to call a vote should, then, be time-limited.  The Scottish Parliament should be given the power to call, by simple majority, an independence referendum only if (say) 30 years have elapsed since the previous vote.  Making the independence vote a rare and decisive event makes it less likely that the secession right will have the destabilising consequences identified by Sunstein. The issue is taken off of the political agenda for a substantial period of time, allowing decisions to be made at the national level without being unsettled by constant doubts about Scotland’s continuing membership of the Union.

It might be objected that such a long period between votes leaves Scotland vulnerable: what if the rest of the United Kingdom embarked on a scheme so hazardous (such as resolving to leave the European Union, for example) that Scotland’s vital interests were imperilled by remaining part of the Union?  Indeed, a benefit of secession rights is that they can give smaller regions some protection against larger units.  The time-constraint on referendums should, then, be balanced by a second measure.  The Scottish Parliament should be given the power to call a referendum at anytime by super-majority: a referendum would be held if (say) two-thirds of MSPs eligible to vote supported it.  This would be a hard standard to meet, but not an impossible one; in extreme cases the Scottish Parliament could hold an independence vote before the specified time between referendums had elapsed.

In summary, my proposal is that following a ‘no’ vote the Scotland Act be amended to empower the Scottish Parliament to hold a binding referendum on independence, but only if 30 years have elapsed since the last referendum or if two-thirds of all MSPs vote for such a referendum.

There are a number of objections that might be made to this proposal.  Practical-minded people I have spoken to warn me that it is unrealistic.  They may well be right.  If independence is rejected, the United Kingdom Government and Parliament are unlikely to have much appetite to continue to debate and discuss the issue.  The SNP is unlikely to want to accept restrictions on the chance to secure a future vote – and may regard such limitations as, in themselves, constraints on a power that ought to reside in the hands of the Scottish Parliament.  Consequently, each side has incentive to let the matter drop.  But whilst constitutional ambiguity is sometimes desirable – allowing us to avoid unnecessary conflicts  – it can sometimes store up trouble for the future.  The possibility of a second referendum will ensure that, after a brief period of quiet, the question of independence will return as a live political issue. Worse still, there is a chance that it will be harder to secure agreement between Scotland and Westminster on the significance of this referendum.  Westminster might, reasonably, decline to accept the validity of a second referendum held in the near future: it might be argued that the SNP cannot keep repeating the question until they get the answer they want.  The period immediately after a ‘no’ vote is probably the best possible time to set the parameters under which the secession right should be exercised.  Leaving it unaddressed will bring significant costs.

The recent pronouncements of the future of the currency in Scotland from British politicians have generated criticism: to some this looks like bullying, threatening the people of Scotland with the loss of the pound.  Such criticism is misguided.  It is right that Scottish voters are given as much information as possible about the likely outcome of a ‘yes’ vote.  Part of that information is the negotiating stance that will be adopted by the rest of the UK when dealing with the putative Scottish state, a political entity that will become, it should be remembered, as much a foreign country as France or Germany.  But Scottish voters ought also to reflect on the consequences of a ‘no’ vote and, ideally, British politicians should also address this question.  There may well be more powers that can be devolved to the Scottish Parliament – a ‘no’ vote is not a vote against devolution – but the vote will settle the question of Scottish independence for a generation.  It will – or it should – rule the question of secession out of political debate for a long period of time, and the Scotland Act should be amended to help bring about this end.

Nick Barber is Associate Professor of Constitutional Law at Oxford University, and a Fellow of Trinity College, Oxford. 

Suggested citation: N. W. Barber, ‘After the  Vote: Regulating Future Independence Referendums’  U.K. Const. L. Blog (21st March 2014) (available at  http://ukconstitutionallaw.org).

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