Tag Archives: Scotland Act 1998

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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Iain Jamieson: The Leveson Report, the Royal Charter and the Scottish Parliament

The Scottish Parliament can legislate to regulate the press in Scotland. This is because this matter  is not made a reserved matter. In principle, therefore, it would be competent for the Scottish Parliament to legislate to give effect to the Leveson Report in whatever way they thought fit.

It was for this reason that the Scottish Government appointed an Expert Group under the chairmanship of  Lord McCluskey  to consider what was the most appropriate way of giving effect to that Report in Scotland. The Expert Group has now published their report but it has been met with an almost universal hostile reception by the press.

However, the Expert Group Report may, to a large extent, now be irrelevant.  This is as a  result of the way in which the UK Government is proposing to give effect to the  main recommendations in Leveson regarding the setting up of the Recognition Panel  to recognise the independent regulatory body for the press.   The UK Government propose to do so by means of a Royal Charter. This will be contained in an Order in Council made under the Royal Prerogative. There is nothing in the Royal Charter to indicate that it is not intended to extend to Scotland. In the absence of any such indication, it will extend to Scotland.

By implementing the Leveson Report in this way, the UK Government has, in effect, bypassed the need to obtain the consent of the Scottish Parliament to the terms of the Royal Charter in so far as they extend to Scotland.. This is because the consent of the Scottish Parliament is only required, under the Sewel Convention, to approve any Bill proposed in the UK Parliament which deals with devolved matters or affects the legislative competence of the Parliament. Neither the Royal Charter nor the Order in Council will constitute such a Bill. The Scottish Parliament will, therefore, have  been deprived of having any say in the provisions of that Royal Charter.

Given the terms of the Royal Charter, it would not appear that the Scottish Parliament could provide for the press in Scotland to be compelled to join a regulatory scheme, as the McCluskey Report proposed.  Accordingly, it would seem that all that would be left for the Scottish Parliament to do is to provide , as a matter of Scots law, for  similar incentives to encourage the press to join the new regulatory scheme as those made in clause 21A of the Crime and Courts Bill (as amended  at Third Reading in the Commons).

In certain circumstances, the UK Parliament can over-ride the prerogative and it is thought that the Scottish Parliament would also be able to do so within devolved matters.  It may be thought, therefore, that it would still be possible for the Scottish Parliament to legislate to amend the Royal Charter or to provide that it should not apply in Scotland.

However, this would not appear to be possible because the Royal Charter also provides that it cannot be amended, or the Recognition Panel dissolved, unless a draft of the proposed change has been laid before the UK Parliament and approved by a resolution of two thirds of the members of each House.  No mention is made of any need to obtain the consent of the Scottish Parliament, whether by simple majority or otherwise.

These provisions in the Royal Charter are entrenched by clause 92 of the Enterprise and Regulatory Reform Bill (as amended at HL Report) which provides-

“Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body’s Charter, or dissolve the body, unless any requirement included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.”

This clause extends to Scotland (see clause 97(8)). However, it may be doubted whether, given the very general terms of clause 92, it would trigger the need for a LCM (or Sewel motion) in the Scottish Parliament but, even if it did, the consent required would only relate to that provision and not to the terms of the Royal Charter itself.

The effect of all this is that the Scottish Parliament has, in effect, been  deprived of its power to make substantive provision for the regulation of the press in Scotland. This has been done not by any of the recognised ways of amending the list of reserved matters in Schedule 5 to the Scotland Act 1998, such as by means of a section 30 order, but indirectly as a by-product of the UK Government deciding to use the Royal Prerogative to give effect to Leveson.

Suggested citation: I. Jamieson, ‘The Leveson Report, the Royal Charter and the Scottish Parliament’ UK Const. L. Blog (20th March 2013) (available at http://ukconstitutionallaw.org)

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Adam Tomkins: The Scottish Parliament and the Independence Referendum

I read with great interest the stimulating post written on this subject by Nick Barber. He makes three points that I would take issue with.

The first is a detail, but an important one none the less. Nick summarises the position of the UK Government as being that the UK Parliament can delegate to the Scottish Parliament the power to hold a referendum on Scottish independence but that it can also “impose limits on the exercise of this power”. It is important to point out that this is not what Her Majesty’s Government has proposed in their recently published consultation paper on Scotland’s Constitutional Future.  Rather, their proposal is that a section 30 order be made whereby clear legal authority is vested in the Scottish Parliament to pass an Act authorising a lawful referendum. A section 30 order requires the approval of each House of the UK Parliament and the approval of the Scottish Parliament: this is a matter of law and is not dependent on the Sewel Convention (see Scotland Act 1998, Sched 7). It is not therefore possible for the UK to “impose” anything on Scotland using the section 30 order procedure that the UK Government has proposed should be used in this case. It is worth spelling this out because Scottish Ministers have wrongly asserted in the past few days that the United Kingdom Government is seeking to dictate matters. It is doing no such thing.

The second point is more substantial. Nick asserts that the Scottish Parliament has “wide powers” and that it “can almost certainly run a referendum if it wishes”. Nick’s analysis of this point relies on a distinction between what he calls binding and advisory referendums. I return to this distinction in my third point, below. What is surprising about Nick’s analysis is the absence from it of the relevant law. The starting place, of course, is section 29 of the Scotland Act 1998. This provides that an Act of the Scottish Parliament (ASP) “is not law” if it is outside the legislative competence of the Parliament, and that an ASP (or a provision of an ASP) is outside legislative competence if “it relates to reserved matters”. Subsection 3 tells us that this issue is to be determined “by reference to the purpose” of the provision in question, “having regard (among other things) to its effect”. Now, Schedule 5 to the Scotland Act reserves “the Union of the Kingdoms of Scotland and England”. Thus, an ASP that related to the Union would, quite clearly, not be law. Contrary to Nick’s stated view, it is not simply that the Scottish Parliament cannot “pull Scotland out of the Union”: it is that any provision of an ASP that related to the Union would be “not law” within the meaning of section 29. Would an ASP authorising a referendum on Scottish independence be one that related to the Union? Of course it would.

Lest there be any doubt about this, let us develop the argument by considering the matter of “purpose”. The purpose of the Scottish National Party in promoting a referendum on Scottish independence could not be clearer. On page 28 of the SNP’s manifesto   for the May 2011 Scottish parliamentary elections, it is declared that “A yes vote will mean Scotland becomes an independent nation”. The purpose of the referendum for which the First Minister claims his famous mandate is unambiguously to deliver independence. It is not to begin negotiations with a view to exploring the possibility of rethinking the Union. It is to deliver independence: to break the Union, to break up Britain. Applying the purpose test of section 29(3) of the Scotland Act therefore only reaffirms the result already arrived at. That is to say, the Scottish Parliament clearly lacks the requisite legislative competence.

Finally, some words about “binding” versus “advisory” referendums. There has been a great deal of confusion about this matter this week, not least in several remarks of the Scottish Ministers. Two quite different things are meant by this distinction. The first relates to the legal effects of any referendum. Most referendums in the UK are advisory in this sense. That is, the decision taken in a referendum does not, in and of itself, effect a change in the law. Some other intervention or mechanism is required to achieve this, such as a legislative amendment or some form of ministerial order. Of course, a referendum could be set up such that its result would be legally binding: the statute authorising the referendum could make provision to this effect. As Nick reports, this was done in the case of the AV referendum, in the Parliamentary Voting System and Constituencies Act 2011, section 8. This sense of the binding/advisory distinction makes no difference to the question of the legislative competence of the Scottish Parliament to hold a referendum on Scottish independence. Whether or not the ASP purporting to authorise such a referendum contained a provision equivalent to section 8 of the PVSC Act, the matter would be outwith legislative competence for the reasons given above.

Recall also the rather elementary point that something can be binding in the British constitutional order without it being legally required in the strictest sense. Referendums are not opinion polls: their purpose is not to test public opinion, but to make decisions. They are appeals directly to the people to make a decision that, for whatever reason, is felt to be more appropriately made by the public than by a legislature. As the House of Lords Constitution Committee observed in its authoritative report on referendums and their place in the UK constitutional order, even where a referendum was legally only advisory, “it would be difficult for Parliament to ignore a decisive expression of public opinion” (12th report of 2009-10, HL 99, para 197). This sense of the binding/advisory distinction may therefore not amount to very much.

But there is a second sense attributed by some commentators to the binding/advisory distinction. In the Herald on 11 January 2012, for example, Professor Stephen Tierney argued as follows: “If a question is carefully crafted, asking people whether or not their preference is for independence and making clear this would only be treated by the Scottish Government as a political mandate to enter negotiations, this would seem to fall within competence”. This is an echo of the argument made by the late Professor Sir Neil MacCormick, one of the SNP’s most significant figures in the late twentieth century: see, for example, his essay “Is there a constitutional path to Scottish independence?” (2000) 53 Parliamentary Affairs 721, at pp 725-6. A positive answer to such a referendum question, it is claimed, would do no more than authorise the Scottish Government to negotiate with the United Kingdom Government. The problem with this is twofold. First, a bespoke mandate to renegotiate the terms of the Union, let alone to negotiate its dissolution, is clearly a mandate that “relates to” a reserved matter and falls foul of section 29. But moreover, the Scottish Government already has what MacCormick described as “unlimited powers to negotiate with the Westminster government about any issues which could be the subject of discussion between them”. There is no need for a referendum to be held before the Scottish Ministers can talk to Her Majesty’s Government about Scotland’s constitutional future. Indeed, such discussions have been ongoing throughout the prolonged passage through the UK Parliament of the current Scotland Bill. Thus, and to return to the words of section 29 of the Scotland Act, it could hardly be held to be the purpose of such an “advisory” referendum simply to authorise negotiations. No, the purpose of the referendum would not be to authorise an inter-governmental conversation. Its purpose would be as set out in the SNP’s own words (in its 2011 manifesto), that “Scotland becomes an independent nation”.

Professor Adam Tomkins is the John Millar Professor of Public Law at the University of Glasgow. He writes here in a purely personal capacity.

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Cormac Mac Amhlaigh: … yes, but is it legal? The Scottish Independence Referendum and the Scotland Act 1998

The question of the legality of a referendum on Scottish independence pursuant to an Act of the Scottish Parliament has been a hobbyhorse of Scottish constitution- watchers since before the Scotland Act 1998 (SA) came into force.  It has now entered the national (British) political fray front and centre, in the form of the spat between Alex Salmond and David Cameron over ownership and control of an independence referendum process and the timing and wording of any such referendum.

Both parties have (unsurprisingly) taken opposite views on the legality of an Act of the Scottish Parliament (ASP) facilitating a referendum on independence (or devo max; devolution of powers just short of full independence) in the absence of a specific grant of the power to hold the referendum by Westminster.  Thus, arguably one of the most significant constitutional issues since the foundation of the United Kingdom over 300 years ago could founder on legal technicality:  would an ASP authorising a referendum, touch upon prohibited grounds under s. 29 of the SA.

As is well known, the model of devolution of powers to the Scottish Parliament under the Scotland Act took place according to an exclusionary as opposed to an inclusionary model.  That is, unlike the devolution proposals in 1978, the Scotland Act devolves plenary powers to Holyrood except for the competence to define the limits of its own competence, as well as specific prohibited grounds reserved to the Westminster parliament.  Most of the litigation on the powers of the vires of measures taken under the Scotland Act (most notably executive acts) in the first decade and a half of devolution have related to (some high profile) human rights cases, most notably the recent Cadder v. HM Advocate [2010] UKSC 43 Frazer v. HM Advocate [2011] UKSC 24 decisions.

The relevant wording of s. 29 for the purposes of an ASP facilitating a referendum, is that it must not ‘relate to’ reserved matters (s. 29(2)(b)).  S. 29(3) provides guidance on the meaning of ‘relates to’, which will be determined by reference to the ‘purpose of the provision, having regard (among other things) to its effect in all the circumstances’.  (s. 29(3) SA).  Reserved powers, contained in Sch. 5 include the Constitution of which ‘the Union of the Kingdoms of Scotland and England’ is part.  So, it all turns on whether an Act which facilitates a referendum on Scottish independence or devo max ‘relates to’ the Union of Scotland and England within the meaning of s. 29 SA.

The Coalition government, in its recent report on the a referendum which includes its interpretation of the legal position, claims that such a referendum clearly relates to the constitution, and particularly the Union between Scotland and England, in that an independence referendum could lead to the severance of the Union.  The Scottish government, for their part, argue that any such referendum would be merely advisory or consultative, have no legal effect within the terms of the Scotland Act and therefore does not violate the terms of devolution.  The implication being that part of the reserved powers model of devolution entails the devolution of the power to hold referendums given that it is not specifically reserved or limited by the Scotland Act, regardless of the subject matter of the plebiscite.

The question of the validity of an ASP facilitating such a referendum is an archetypal ‘hard case’, due to the fact that it involves a dispute about the level of analysis the Supreme Court should adopt in assessing the vires of ASPs under s. 29 SA.  Should the scrutiny of the purpose of a referendum ASP be narrow and limited, not moving beyond the immediate purpose of the Act itself; i.e. to hold a referendum?  Or should the scrutiny be more contextual, one could say ‘anxious’, taking into account, not only what the Act purports to do in the immediate term, but also the social and, perhaps more importantly political, context within which the Act would operate and its longer term consequences?

On a narrow reading of s. 29, which coincides with the Scottish Government’s reading, the purpose of such a provision would be to hold a referendum and there the analysis by the court would stop.  The holding of referendums is not explicitly prohibited in the SA and therefore the facilitating Act would clearly be valid.  If pushed, it could be argued on this view that its ‘effect in all the circumstances’ would be null in that it would not have any legal effect; its simply taking the temperature of Scottish public opinion.

A broader level analysis, one which seems to be reflected in the coalition government’s reading of the SA, is that the analysis must not stop at the immediate purpose of the ASP to hold a referendum, but that the purpose of the referendum itself must also be considered.  On this reading, the purpose of the ASP is thus to hold a referendum in order to subsequently secede from the Union which therefore ‘relates to’ a reserved matter.  The referendum, on this view, should not be considered an end in itself, but rather an instrument to achieve a further goal, that of secession or the devolution of further powers to the Scottish Parliament.

Whereas there has been much discussion (and disagreement) about the legality of an independence ASP, ultimately  the legality of the bill will be determined by the Supreme Court’s interpretation of s. 29 and so the best predictor of the legality of a proposed bill is an attempt to predict how the Court would approach s. 29.  To put it bluntly in the context of the current debate, a broad contextual approach to scrutiny of the purpose a purported Bill by the Supreme Court would favour the coalition government’s position whereas a narrow, limited scrutiny of the purpose of the purported bill favours the Scottish government’s interpretation of the Parliament’s powers.  The question is then, what indicators are there of the Supreme Court’s view?

There has been a surprising dearth of litigation reaching the Supreme Court based on the competence of ASPs with regard to reserved powers as opposed to violations of EU or Human Rights law under s. 29(2)(d). In fact, to date, only one case has been decided by the Supreme Court where it was forced to interpret the relevant provisions of s. 29 SA; Martin and Miller v. HM Advocate [2010] UKSC 10.  Although the Court was unanimous in finding that the Act of the Scottish Parliament (ASP) in question was not in violation of s. 29(2) read in conjunction with s. 29(3), that is that it did not ‘relate to’ reserved powers, the case does reveal some clues as to how the Supreme Court would interpret s. 29 SA for the purposes of a referendum bill, should it ever have the occasion to.

The case involved an ASP, the Criminal Proceedings (Reform) Scotland Act 2007 , and in particular s. 45 which purported to raise the maximum penalty for offences tried summarily to 12 months imprisonment.  The joint appellants were convicted of road traffic offences for which the maximum penalty had, before the 2007 Act, been 6 months imprisonment.  The Court sentenced them to   12 and 7 months imprisonment respectively (i.e. more than the pre-2007 reform limits).  The Road Traffic Acts, pursuant to which the offences were prosecuted, is a reserved matter under Schedule 5 of the Scotland Act and so they claimed, among other things, that the ASP which augmented the sentences was beyond the powers of the Scottish Parliament due to the fact that it ‘related to’ a reserved matter, namely offences under the Road Traffic Acts.

The case was eventually decided according to the more arcane provisions of s. 29(2)(c) and s. 29(4) SA where the court divided 3 to 2 on the outcome, details which need not detain us here.  Of more interest was the unanimous approach of the Court as to whether the amendments of the 2007 Act ‘related to’ a reserved matter under s. 29(2) SA read in conjunction with s. 29(3) SA.  The court found that the ‘purpose test’ contained in s. 29(3) SA, necessitated a broad contextual approach to the provision of the 2007 and not simply a narrow, facial reading of the provision which augmented the sentences for offences tried summarily.  Thus, Lord Hope found that in applying the purpose test, the Court should have regard to the ‘situation before the provision was enacted, which it was designed to address’.  The Court liberally referenced the expert committee reports which recommended the change in the maximum penalties for offences tried summarily, reports and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, policy memoranda, statements made by ministers and the Parliamentary committees during the passage of the Bill through the Scottish Parliament to conclude that, in the light of the broader context of the provision, its purpose was to reform the summary justice system by reducing pressure on higher courts (which was unambiguously a devolved matter), and not to raise sentencing limits for road traffic offences generally (which would be a reserved matter).  The increase in the sentencing powers of offences tried summarily in the lower courts was deemed to be a necessary part of this reform.  As Lord Kerr remarked, the greater maximum penalty introduced by the relevant provisions was not ‘an end in itself’ but a mechanism of a broader purpose of the reform of the jurisdiction of the Scottish courts (a devolved matter) in order to enhance efficiency.

Analogizing then from this case to the legality of an ASP facilitating a referendum, it would appear that were the Court to follow the approach it took in Miller and Martin, this would militate in favour of the coalition government’s interpretation of s. 29.  As such, the referendum introduced pursuant to the bill would not be read as an ‘end in itself’ but rather would have to be seen in its broader political context of enactment, including consultations, debates and previous ministerial statements.  This could include the purpose of the bill constituting a means to a broader end of Scottish independence which would clearly fall foul of s. 29(2) SA.  As much seems to have been anticipated by the coalition government’s legal analysis of the situation in its recent Consultation Document, where it refers to the Scottish Government’s 2010 Draft Referendum Bill Consultation which stated that ‘The [Scottish] Parliament’s powers should be extended to enable independence to be achieved’.  The Consultation document therefore concluded that ‘both purpose and effect [of a referendum bill] therefore related directly to the reserved matter of the Union of the Kingdoms of Scotland and England’ and that the ‘underlying purpose’ of any advisory or consultative referendum would be Scottish independence.

However, if the reports, statements and arguments advanced by the Scottish Government as well as the explanatory notes to any forthcoming referendum bill contained a ‘saving clause’, explicitly stating that the purpose of the Bill was not to give effect to secession nor directly affect the Union and therefore encroach upon a reserved power, but rather was the simply exercise of a devolved power (the power to hold referendums), then this would muddy the waters considerably.  It would remain to be seen what the Supreme Court would make of such a savings clause, were it to be introduced.

Whichever way the Court swings on this question should it ever actually reach its docket, what is clear is that the law can play only but a minor role in the resolution of this potential constitutional crisis.  Analogies to the Canadian situation with Quebec should be made with caution (after all, the Scotland Act is not the Canadian constitution), but if we are permitted to draw anything from the Quebec Secession Reference decision of the Canadian Supreme Court in 1998, it is surely that these questions are, at root, political questions which must, in the final analysis, be resolved politically.

Dr. Cormac Mac Amhlaigh is Lecturer in Public Law, University of Edinburgh.

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