Tag Archives: Scotland

Nick Barber: After the Vote

Nick1At 650 pages Scotland’s Future  is not a light read.  It stands as the Scottish Government’s manifesto for a yes vote in the independence referendum.  The volume ranges from profoundly important questions relating to currency and Scotland’s membership of the European Union, right down to weather-forecasting and the future of the National Lottery.  Though it is likely many copies of Scotland’s Future will be printed, it is unlikely many will be read from cover to cover.  Its authors probably do not regret its length: by its very heft, the volume seeks to rebut claims that the consequences of independence have not been carefully thought through.  This post considers the immediate constitutional consequences of a yes vote in light of Scotland’s Future.  Its central argument will be that the timescale proposed by the Scottish Government for independence following a referendum is unrealistic, and may work against the interests of an independent Scotland.

Scotland’s Future sees a rapid move to independence after the vote.  The referendum will be held on the 18th of September 2014, and negotiations with the UK and the European Union will start shortly after.  The Scottish Government foresees that these negotiations will be completed by March 2016, 18 months later, and has picked 24th March 2016 as the day on which Scotland will become sovereign.   The first elections in an independent Scotland will be held on 5th May, 2016.  This is the date on which elections for the Scottish Parliament are to be held under the current devolution settlement.

So the key dates are:

18th September 2014: Referendum

 7th May 2015: Likely Date of General Election in United Kingdom (including Scotland)

 Early March 2016: Agreement between UK and Scotland, and between European Union and Scotland

24th March 2016: Independence for Scotland (via Acts of the UK Parliament and Scottish Parliament)

 5th May 2016: Elections to Scottish Parliament

There are two groups of negotiations that Scotland will need to engage in before March 2016: with the UK and with the European Union.  Each of these will be considered in turn.

Negotiations with the UK

The first question to be asked is who, exactly, will negotiate on behalf of the two territories.  The answer for the Scottish side is comparatively easy.  The Scottish White paper specifies that there will be a ‘negotiating team’ appointed, which will be led by the First Minister and include members from a number of political parties in Scotland and ‘public figures’ (p.72).  The Scottish Parliament will scrutinize the process as it progresses – a scrutiny that may complicate matters if, or rather when, difficult concessions need to be made.

Whilst there are still questions to be answered about the composition of the Scottish negotiating team – about the manner of their selection, approval, and, indeed, how this group of previously antagonistic politicians will manage to work as a ‘team’ – these can probably be resolved relatively quickly.  The United Kingdom’s representatives may prove harder to organise.  The principal, but not sole, reason why this may prove tricky is the General Election that will be held in May 2015.

The United Kingdom’s 2015 General Election is likely to impact on negotiations in a number of ways.  First, it makes it unlikely that much serious negotiating will be undertaken in the period between the referendum and the election.  The politicians responsible for the negotiations are likely to be distracted.  The Coalition Government will probably become weaker and more fragmented as the Conservative and Liberal parties seek to present distinct political identities to the public.  It will become steadily more difficult for the UK Government to act in a coherent manner. The looming election will also make meaningful compromise harder: no English politician will want to be seen making concessions to Scots just before an election.  But even more importantly, it will be the 2015 General Election that will determine which party, or parties, will lead the negotiations.  Whilst the negotiators for the UK are likely to be drawn from across the party spectrum, negotiations will be led by a representative of the governing parties: the Prime Minister will probably assume ultimate responsibility for the process.  Furthermore, just as the Scottish Parliament will review and, ultimately, approve the agreement on the Scottish side, the UK Parliament will play a similar role on the UK side.  Under our existing constitution, the final decision about Scottish independence rests with the UK Parliament, which will confer sovereignty on Scotland through a statute.  The agreement reached between the Scottish and UK negotiators must be one each Parliament is willing to endorse.  The political complexion of the 2015 Parliament may, then, be crucial in shaping the course and outcome of negotiations.

The 2015 General Election may raise further difficulties for the course of the negotiation.  Whilst it would make sense for negotiations to be held between Scotland and the remainder of the UK (that is, the UK less Scotland), no such constitutional entity exists.  The UK side of the negotiations will – nominally – include Scotland.  The 2015 UK Parliament will still represent, and sometimes legislate for, the whole of the UK.  The 2015 UK Government will still be responsible for the well-being of the whole of the state.   This will not prove a significant problem if the 2015 election produces a Government with a majority in England.  Then these constitutional conundrums can be ignored: Scottish MPs will have only limited impact in the UK Parliament, and negotiations can continue as if the UK representatives acted for those parts of the Union outside of Scotland.  Far more difficult, though, if after the 2015 election Scottish MPs hold the balance of power in the House of Commons. It could be that, for instance, Labour will gain a majority of seats in the Commons because of the support of Scottish Labour MPs.  If so, the conduct of the UK side of the negotiation may be partly, if indirectly, determined by Scottish MPs, and the product of the negotiations may require the support of Scottish MPs to become law.     And this balance of power would, of course, provide a further incentive for the UK representatives to slow down the pace of negotiations: once Scotland became independent, Scottish MPs would cease to sit in the UK Parliament.  If the governing party required the support of these MPs for its majority, it would lose control of the Commons and could, potentially, either be compelled to stand aside or hold a further election.

Perhaps in response to these worries the SNP has suggested that the UK General Election be postponed for a year.  This is a constitutional possibility, though a tricky one.  Postponing the election would require Parliament to repeal or circumvent the Fixed-term Parliaments Act 2011 and the support of the Commons alone would not be enough as the bill could still be vetoed by the House of Lords.  Parliaments have extended their own lives in the exceptional circumstances of World War I and World War II, but it is doubtful that the Scottish independence referendum – important though it is – presents a crisis of this intensity.  Furthermore, even if the General Election were postponed by a year, there is no guarantee that negotiations would be concluded within this timeframe.

A second reason why the negotiations will probably take longer than the Scottish Government hopes is that the UK side lacks an incentive to speed the process along.  Reading Scotland’s Future it is hard not to be struck by how many issues will need to be negotiated.  Once negotiations start, Scotland will be dealing from a position of comparative weakness.  The two things that Scotland will need in order for independence to be a success in the short and medium term – use of sterling as a currency and membership of the European Union – are both in the gift of the UK.  The UK ought to conduct negotiations in a positive and generous manner – it is in everyone’s long-term interest that Scotland becomes a prosperous and stable country after independence – but it should also ensure that the result protects the interests of those UK citizens outside Scotland.  Scotland’s Future proposes that the Bank of England will become Scotland’s lender of last resort, set the interest rates for both Scotland and the remainder of the UK, and determine monetary policy for the area.  Scotland would then require a share of ownership and control over the Bank.  Though Scotland’s Future suggests otherwise, it is likely that a corollary of this is that a great deal of financial regulation will also be undertaken at the British level: if the Bank of England is to act as lender of last resort, it will also want to have some control over financial regulations that mitigate the risks run by Scottish institutions.  Whilst the Bank of England might be the most important institution an independent Scotland would hope to share with the rest of the UK, it is not the only body that SNP plans to retain.  The Scottish white paper also suggests that around 30% of cross-border bodies will continue to provide services in Scotland (p. 363): once again, Scotland will wish to exercise a share of control over them.     Though it is plainly in the interests of Scotland to retain the pound and make use of the Bank of England and these other bodies, it is harder to see why it would be in the interests of the remainder of the UK to allow this.  Allowing Scotland a share in control of these bodies will reduce the control that citizens of the UK can exert over them: it is an open question why the UK should, or, more importantly, would, accept such a limitation on its sovereignty.  The two key cards held by the Scottish negotiators – allowing nuclear weapons to remain in Scotland and taking a share of the national debt – will need to be judiciously played.

Scotland’s negotiating position will be further harmed by its commitment to a rapid agreement.  The remainder of the UK could happily continue negotiating for years, Scotland’s Future proposes an agreement within 18 months.  Deadlines can be a useful part of a negotiating process, but only if both sides agree to adhere to them.  If – as is probably the case – an agreement takes longer to reach, the Scottish Parliamentary Election of 2016 presents a further challenge.  It is the looming presence of this election that may explain the SNP’s desire for a hasty settlement.  The 2016 election could complicate matters by returning a different government to Scotland – perhaps even a government that no longer supported independence.  This might provide an incentive for the UK negotiators to delay an agreement, hoping, perhaps, for an easier negotiating partner.  On the other hand, this risk may induce the Scottish team to make concessions to secure a quick agreement.

Negotiations with the European Union

In the previous section I noted that Scotland’s membership of the European Union would depend, in part, on the support of the UK.  The UK – like all other members of the EU – would possess the power of veto over Scotland’s application.  It is not in the UK’s long-term interests to deny Scotland membership of the EU, but its support cannot be assumed: Scotland’s membership of the European Union will be an important part of the negotiating process.

The relationship of a newly independent Scotland to the European Union is far from clear.  Whilst there was some early talk that Scotland would automatically become part of the EU on independence, Scotland’s Future accepts that there will need to be an amendment of the treaties for Scotland to join.  The normal processes through which a country applies for membership of the EU are found in Article 49 of the Treaty on European Union.  Scotland’s Future argues that this would be an inappropriate process to impose on Scotland, contending that Scotland, and its people, are already within the Union.  If Article 49 were insisted upon – either by the EU institutions or by any of the Member States – it seems that Scotland would have to gain independence before applying to join.  There would then be a problematic gap between independence and membership of the EU.  Scotland’s Future contends that, instead of Article 49, Article 48 would be the more appropriate mode to amend the Treaties to enable Scotland’s membership.

It is worth looking at Article 48 in a little more detail.  It reads, so far as is relevant:

 Article 48:

 1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.

Ordinary revision procedure

 2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

 Scotland’s Future claims that this process could be undertaken and completed within 18 months.

A number of points arise out of Article 48.  The most striking point is that, on the face of it, Article 49 would appear the more appropriate mechanism for Scotland’s application.  Article 49 deals with new countries wishing to join the EU, Article 48 relates to treaty amendments that alter the powers of the EU. Even if Article 48 is used, however, it is likely that the process of treaty amendment would still be a lengthy one.

First, the Scottish Government would have to secure the competence to negotiate with the EU, and perhaps other Member States, from Westminster.  Second, the Scottish Government, whilst Scotland was still a part of the United Kingdom, would have to persuade the Council that it was entitled to make use of Article 48, despite Article 48 being confined to governments of Members States.  Then, thirdly, preliminary negotiations would begin with the European institutions, and Member States, before a formal proposal was presented to the Council.  Fourthly, the Council, in its turn, would then send the proposal to the European Council (comprising the Heads of State of the Member States and the President of the European Council) and notify the European Parliament.  Fourthly, if a majority of the European Council were disposed to consider the amendments further, the proposal would be put to a Convention or directly to a Conference consisting of representatives of the governments of Member States.  The former, the Convention, is used if the amendments seem of wide significance, and would require assembling representatives from a broad range of institutions to deliberate and debate the proposals.  The latter, the Conference, can be engaged directly if the reforms are more limited.  It is likely that Scotland’s application – which would affect the composition of the European Parliament, the Commission, and the Court – would require the summoning of a Convention.  In any event, the proposal would then have to be agreed by a Conference of representatives of the governments of Member States.  Fifthly, and finally, the amendments would then have to be ratified by those Member States.   This would probably require a referendum in France and perhaps in some other states too.  Most Member States would require that the amendments be ratified by their legislatures before becoming effective. Then – after the amendments had been ratified by all of the Member States – Scotland would be able to join the European Union.

The last paragraph made for heavy reading.  I do not claim to be a specialist in European Law, but to assume that the Article 48 procedure could be completed within 18 months seems laughably optimistic:  three or four years seems a more plausible timeframe.  Even this makes a number of assumptions.  It assumes that the difficult issues that Scotland must negotiate are quickly agreed.  It assumes that other countries – in particular Spain – do not block or slow Scotland’s application.  And it assumes that the EU is willing to undertake a discrete treaty amendment process to speed Scotland’s membership – and does not seek to include Scotland in the next round of EU expansion.

Whilst the timeframe of Scotland’s Future is unrealistic, it is highly likely that Scotland would be able to join the EU before 2020.  It is in no-one’s interest to exclude Scotland from the Union.  If, as is almost certainly the case, Scotland cannot complete the Article 48 process before the 2016 deadline, it is conceivable that some sort of international agreement could be reached between Scotland and the EU to preserve Scotland’s legal position.  Perhaps Scotland would then be treated a little like Norway: possessing many of the privileges and duties of EU membership, but not able to return MEPs to the European Parliament or appoint Commissioners.

Conclusion

The contention of this post has been that the timescale set by Scotland’s Future is unrealistically tight, and likely to harm Scotland in a number of ways.  There would be benefits to a slower process of negotiation, one which was planned to last four or five years.  Aside from giving Scotland more leeway in negotiations with the UK and more time to allow the treaty amendment process to run its course in Europe, this would also permit Scotland to start the process of formulating a new constitution prior to independence.  Scotland’s Future proposes that a Constitutional Convention be held sometime after the first elections in 2016, following independence.  But if Scotland waits for independence to begin this process it is likely that many of the fundamental aspects of the new Scottish Constitution will have been settled – Scotland’s currency, aspects of its economic policy, and its relationship with the EU are only the most obvious of the questions that will have been resolved by this point.  Other matters that a Convention might want to consider – the role of the Queen and the continuation of the Human Rights Act, for example – will already be part of Scotland’s provisional constitution, and may prove hard to shift.  There is a danger that, like Israel before it, Scotland will find it easier to muddle through with this provisional constitution rather than produce a fresh constitutional document.

Finally, a benefit of running these three processes in parallel is that a further referendum could then be held prior to independence. This second referendum would stand as a ratification of the agreement with the UK (a ratification that, the Constitution Unit argues, is needed to approve the deal), as a vote to join the European Union, and, finally, as an approval of Scotland’s new constitution.  Each of these three issues presents a strong argument for a second vote.

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

Suggested citation: N. W. Barber, ‘After the  Vote’  U.K. Const. L. Blog (14th January 2014) (available at  http://ukconstitutionallaw.org).

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Aileen McHarg: A Tale of Two Constitutions?

aileenLast week, I spent two days in London, accompanying a group of Constitutional Law students on a trip to the Westminster Parliament, the Supreme Court and the Scotland Office.  The trip was part of a final year research project shadowing the House of Commons Political and Constitutional Reform Committee’s Inquiry into The Constitutional Role of the Judiciary if There Were a Codified Constitution.  The students had extraordinarily privileged access to ministers, MPs and peers, to Supreme Court justices, and to leading academics and members of the Scots and English Bars.  It was a hugely valuable and enjoyable experience for students and their teachers alike.

However, what struck me very forcibly while I was in London was the disconnect between constitutional debates at Westminster and those in which we are currently engaged in Scotland.  Whilst the Political and Constitutional Reform Committee was discussing the implications of a written constitution which most people to whom we spoke regarded as wholly hypothetical, here in Scotland we are facing the real prospect of constitutional codification in the event of a yes vote in next year’s referendum.  Given the state of the opinion polls, it may be unlikely that this will in fact happen.  But the important point is that, unlike for the UK, there are conceivable circumstances in which Scotland could soon have written constitution.  Nevertheless, the Scottish situation appears to have played no part in the Committee’s inquiry, nor does there seem to be much awareness of the fact that the judiciary already plays a strong constitutional role in relation to the Scottish Parliament and other devolved legislatures.

We see a similar constitutional disconnect when it comes to the European Union.  While all the talk in Scotland is of whether we could remain a member of the EU in the event of independence, Westminster is currently debating a Bill (The European Union (Referendum) Bill 2013-14) which will pave the way for a referendum on whether the UK should remain a member.

Of course, the independence referendum and its implications have not been wholly ignored at Westminster.  The Scottish Affairs Committee has published a steady stream of reports   on what it insists in calling ‘separation’ for Scotland, and on 5 December the House of Lords held a short debate on the Scottish Government’s independence White Paper, in which various speakers called for a full debate and/or the establishment of a joint Parliamentary committee to examine the White Paper fully.

The tone of these interventions from Westminster is, however, almost unremittingly hostile to independence.  For most Westminster politicians, the idea of independence for Scotland would appear to be so preposterous that only a fraud or a fool could support it.  For instance, in a report published shortly before the White Paper, the (notoriously partisan) Scottish Affairs Committee came close to accusing the Scottish Government of lying: “The Committee believes that the present Scottish administration, in relation to separation, is strongly motivated to present a selective and biased account of the facts.” (at para 11)  Similarly, in the recent House of Lords debate, Lord Forsyth of Drumlean gleefully related the fact that the title of the White Paper – Scotland’s Future –is an anagram of “fraudulent costs” (at col 397).  For Lord Foulkes of Cumnock, the White Paper was “650 pages of continuous fiction” (at col 400), while for Lord Steel of Aikwood it was a “bogus prospectus of a bogus independence” (at col 401).  The only note of dissent in the debate came from Lord Purvis of Tweed who, while not in favour of independence, nevertheless considered that the UK was in need of reform.

It is easy to dismiss this kind of stuff as just good political knockabout.  And it might also be argued that, if the independence debate is not taken more seriously at Westminster, it is the fault of the Scottish Government for insisting that it is a matter for the people of Scotland alone (indeed, even at Westminster, few non-Scots voices are heard).  Yet, how could it be otherwise?  While independence for Scotland undeniably has implications for the United Kingdom as a whole, and the terms of independence must assuredly be negotiated, as a matter of principle the right of a minority to seek self-determination cannot be dependent on the will of the majority.  More pragmatically, the tone of the Westminster debates indicates there would be no possibility of the independence case receiving a fair hearing.

In fact, the tone of the debate at Westminster is not merely distasteful but, by failing to do justice to the seriousness of the debate in Scotland, or to make the positive case for the union that undoubtedly exists (see, eg, Jim Gallagher’s speech  at Glasgow University in October), it seems to me to pose a threat to the continuation of the UK – perhaps not in the short term, but taking a longer view.  The degree of constitutional disconnect between Scotland and the rest of the UK, as represented by Westminster, contributes to a growing sense that these are two separate polities with different constitutional trajectories.  While voters in Scotland may well conclude that, for now, remaining in the union is the less risky of the two constitutional futures on offer, this looks less like being a ringing endorsement of the union than a pragmatic – and therefore contingent – calculation.

I may, of course, be wrong.  Once the referendum is over and if (when?) the no side prevails, these constitutional trajectories may reconverge in a mutual commitment to a reconfigured union.  For instance, the Political and Constitutional Reform Committee has called for  a constitutional convention to be set up after the referendum to consider the relationship between the union and its constituent parts.   Gordon Brown has also recently advocated  the adoption of a written constitution which would guarantee the powers of the Scottish Parliament. There is no reason in principle why such a constitutional settlement could not accommodate a diversity of constitutional visions, both institutional and substantive.  Equally, it could accommodate multiple polities, where people have multiple political identities and owe multiple political allegiances, so long as there is mutual commitment to the union and mutual toleration of diversity.

It is, however, precisely that mutual commitment and toleration that is in question here.  The latest British Social Attitudes Survey showed that, in 2012, while some 65% of those living in Scotland had some form of dual Scottish and British identity, if forced to choose between them, 69% opted for a Scottish identity, while only 20% chose a British identity – the latter figure having been in long-term decline since 1979 when it stood at 40%.  In this context, it is highly problematic that Westminster politicians prefer to disparage Scots’ aspirations for greater autonomy than to consider in a positive way how these might be accommodated.

In such an atmosphere of weak commitment to the union and intolerance of diversity, the prospects for a UK-wide constitutional settlement appear wholly unrealistic – more likely further to expose rather than to resolve the deep constitutional divisions between the constituent parts of the UK.  The hostility to the idea of a UK Bill of Rights from Scotland, Wales and Northern Ireland provides a foretaste of what would be likely to occur (Commission on a Bill of Rights, A UK Bill of Rights: the Choice Before Us, ch 9.  Much more probable is some further piecemeal adjustment of Scotland’s governance arrangements, which leaves their asymmetries under-theorised and their underlying tensions intact, if not more pronounced.  By failing to ask the fundamental questions about the relationship between the UK and its constituent parts, the union may be able to muddle through for a while longer.  However, unless and until these questions are satisfactorily resolved, Scotland’s place in the union will continue to be uncertain.

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

This post originally appeared on the Scottish Constitutional Futures Blog, and is reposted here with thanks.

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Stephen Tierney: The Scottish Constitution After Independence

stierneyAccording to the Scottish Government White Paper issued this week, Scotland’s Future, an independent Scotland will have a new written constitution (this repeats the commitment contained in the Scottish Government’s earlier White Paper of March). The intention is to replace Westminster parliamentary supremacy with the ‘sovereignty of the people of Scotland’ since, the Government claims, popular sovereignty has historically been ‘the central principle in the Scottish constitutional tradition.’ While this latter claim may be questionable, the commitment to a written constitution does promise a significant constitutional break with the Westminster tradition and a new constitutional culture for Scotland.

In this blog I will briefly discuss three matters:

    • When will the proposed constitution be drafted and promulgated?
    • What will it contain?
    • How will it be drafted?

When will Scotland have a new constitution?: The short answer is, we don’t know exactly. The task of drafting a new constitution will not commence until after the Scottish Parliament elections scheduled for 5 May 2016, some six weeks after Independence Day, set for 24 March. The White Paper does not offer a view as to how long the drafting process is likely to take and therefore we have no provisional date for the eventual promulgation of a new constitution.

What will it contain?: There is something of a tension between the substantive constitutional proposals put forward in the White Paper and the process by which it will be drafted.

The Scottish Government offers a fairly extensive list of what it thinks the constitution should contain, and a number of these provisions are key to its vision for independence. For example:

    • equality of opportunity and entitlement to live free of discrimination and prejudice
    • entitlement to public services and to a standard of living that, as a minimum, secures dignity and self-respect and provides the opportunity for people to realise their full potential both as individuals and as members of wider society
    • protection of the environment and the sustainable use of Scotland’s natural resources to embed Scotland’s commitment to sustainable development and tackling climate change
    • a ban on nuclear weapons being based in Scotland
    • controls on the use of military force and a role for an independent Scottish Parliament in approving and monitoring its use
    • the existence and status of local government
    • rights in relation to healthcare, welfare and pensions
    • children’s rights
    • rights concerning other social and economic matters, such as the right to education and a Youth Guarantee on employment, education or training

Another proposal is that Scotland would remain a constitutional monarchy ‘for as long as the people of Scotland wish us to be so’. In relation to a number of these proposed rights, such as the opportunity of education, training or employment and rights to welfare support and health care, there is no commitment that these would be legally enforceable by courts but rather the more vague suggestion that they will be ‘questions of social justice at the forefront of the work of Scotland’s Parliament, government and public institutions.’

But in any case, since the Government does not propose to draft the constitution itself, each of these is merely a proposal for consideration. As we turn to the proposed process by which the constitution will be drafted we find that there is no guarantee that any of these commitments will in fact find their way into a new constitution.

Drafting the Constitution: A Scottish Constitutional Convention? The White Paper provides that, following the elections of May 2016, a constitutional convention will be established to ‘prepare the written constitution’. But how can it be so sure? There is no guarantee the SNP will win the 2016 elections and another party or parties forming the government at that time may have different views about this.

The Scottish Government seeks to deal with this by way of some form of constitutional guarantee or entrenchment: ‘The constitutional platform, along with the refreshed Scotland Act, will be the founding legislation of an  independent Scotland and will not be subject to significant alteration pending the preparation of a permanent constitution by the constitutional convention’. It is stated in the White Paper that, during the transitional stage between the referendum and Independence Day on 24 March, legislation will be passed placing a duty on the Scottish Parliament elected in 2016 to establish a constitutional convention. It is not clear by whom this legislation will be passed although it does seem that the goal is either for concurrent legislation of the UK and Scottish Parliaments or for the Westminster Parliament to transfer power to the Scottish Parliament for this purpose. Even so, this raises an interesting question as to whether the 2016 Parliament would be bound by such legislation. There would of course be no written constitution in place to restrict its powers. Would it be bound by the sovereignty of Westminster? Surely not, as the newly elected Parliament of an independent country. This issue is worthy of more detailed consideration in due course and important lessons may well be found from comparative cases.

Assuming that the Scottish Parliament does assume the role as convener of a constitutional convention in 2016, what will this convention look like? Perhaps not surprisingly at this stage the White Paper offers little in the way of detail. But all the same important questions remain to be asked. We are told that the convention will be ‘open, participative and inclusive’ and that the new constitution ‘should be designed by the people of Scotland, for the people of Scotland’. But is the proposed convention likely to be a genuinely popular process?

In one passage the White Paper states: ‘International best practice and the practical experience of other countries and territories should be considered and taken into account in advance of the determination of the process for the constitutional convention. In the last decade, citizen-led assemblies and constitutional conventions have been convened in British Columbia (2004), the Netherlands (2006), Ontario (2007) and Iceland (2010). Since 2012, Ireland has been holding a citizen-led constitutional convention to review various constitutional issues.’ From a number of these examples it is clear that citizens can be engaged directly and in meaningful ways in drafting important constitutional provisions. But is this what the White Paper proposes? In fact this passage is juxtaposed with the suggestion that the constitutional convention ‘will ensure a participative and inclusive process where the people of Scotland, as well as politicians, civic society organisations, business interests, trade unions, local authorities and others, will have a direct role in shaping the constitution.’

This raises the question: will the process really be a popular and meaningful engagement with citizens, or will it be a largely elite-led event, like the Scottish Constitutional Convention from 1989-1995? Will in fact the new constitution be drafted by elites – politicians, civic society organisations, business interests, trade unions and local authorities? If so, is this satisfactory? After all, of these groups only politicians are elected by the citizens of Scotland. To whom are the other organisations accountable and in what ways? Who would select members of these groups to sit on the convention, on what basis, and with what degree of decision-making power would they be vested? The reference to ‘civic society organisations’ introduces a risk that pressure groups with fixed agendas and well-oiled activism machinery could hijack the process, arguing persuasively for the entrenchment in the new constitution of their own particular priorities, priorities which may not have the support of a plurality of citizens.

Such an approach to constitutional drafting runs counter to some of the other examples cited in the White Paper. The Citizens’ Assemblies in British Columbia and Ontario, for example, were composed of citizens selected randomly from the electoral role. This was a direct attempt to take constitutional decision-making out of the hands of elites, be they politicians or members of the fabled ‘civil society’.

Another question is: what power will such a convention, whether popular or elite, have? The White Paper says it will ‘prepare’ the constitution. Does that mean it will have the authority to present a final version of the constitution for ratification? Or would its role be advisory only, subject to change by the Scottish Parliament?

It seems that the convention is intended to have real determining power. That the Scottish  Government can only ‘propose [certain matters] for consideration’ by the constitutional convention suggests that the convention will have control over the inclusion or exclusion of all of the Government’s goals outlined above, including the personality of the head of state. However, there seems to be one exception here. According to the White Paper the convention will itself be limited in its remit by at least one substantive precondition: ‘Key equality and human rights principles, including the requirements of the European Convention on Human Rights (ECHR), would be embedded in the written constitution.’ This seems to be a non-negotiable commitment which the convention could not override. In other words, the convention will not be able to give effect to the ECHR in a way comparable to sections 3 and 4 of the Human Rights Act 1998, leaving the last word to the Scottish Parliament, a power which Westminster currently enjoys. There is also the suggestion that legislation during the transition period will give the ECHR the same legal force for reserved matters as it already has for devolved matters. Both these transitional arrangements and the constitutional pre-commitment on the ECHR in turn make the supremacy of judges over the new Scottish Parliament in the human rights area another de facto pre-commitment. Of course it may be that a constitutional convention or citizens’ assembly would come to the view that this is good for Scotland, but surely that should be left to this process to determine?

Finally, how would the constitution be promulgated? Would it simply need the ratification of the Scottish Parliament, or would there be a referendum? The White Paper does not say, but given the growth in referendums within our constitutional practice it seems inconceivable that such a momentous constitutional development, intended to declare the sovereignty of the Scottish people, could take place without the express authorship of the people expressed in a referendum.

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme. I am grateful to Katie Boyle for research assistance in writing this blog.

Suggested citation: S.Tierney, ‘The Scottish Constitution After Independence ’  (2nd December 2013) (available at http://ukconstitutionallaw.org).

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Neil Walker: The Receding Tape

NeilAnd so the countdown begins. But the countdown to what? Twelve months from now we should know the result of the referendum, but just how significant a marker will that be on Scotland’s constitutional journey?

One popular view – for many less a reasoned view than a deep-rooted assumption – maintains that the referendum will be decisive and conclusive of Scotland’s future constitutional shape and status. The contemporary history of the Scottish national debate began with Winnie Ewing’s by-election success in Hamilton in 1967, continued through the abortive devolution referendum of 1979, and reached a new pitch with the successful plebiscite of 1998 and the election of the new Scottish Parliament in 1999. According to the conventional narrative, this long Scottish constitutional ‘moment’ is now drawing to an end, the independence referendum scheduled for September 2014 its final act. And despite some early mutterings from the side-lines about the inclusion of a third ‘devo-max’ option on the ballot paper, that final act  will consist of a straight choice between ‘yes’ or ‘no’, ‘out’ or ‘in’.

But why should we conclude that the availability of a  straight choice to stay or leave – the first such choice offered the Scottish people in over three centuries of Union, will settle matters once and for all? There are at least three arguments supporting this position. The first has to do with the vagaries of constitutional history. As we were reminded by the Political Studies Association’s recent decision to honour Cameron and Salmond in recognition of the two Ministers’   diplomatic achievement in signing the Edinburgh Agreement, the referendum was hard won. It took 40 years of political momentum-building, the platform and profile  of the Scottish Parliament, some unlikely  and unanticipated electoral arithmetic at the 2011 Scottish elections, the flexibility  of Britain’s unwritten constitution, a gradual yet  unprecedented groundswell  of democratic opinion in  favour of exercising the national ‘right to decide’, and a strategic calculation on both political sides that there would be no  obviously better time in the foreseeable future to hold a ballot,  to bring us to the point where a constitutionally unimpeachable referendum could be delivered.  With the clock now ticking down it is easy and tempting to think that there is something natural and inevitable about this final act, but the combination of circumstances that has brought us to this point is actually highly contingent, and unlikely to be repeated any time soon.

The second reason why the referendum is widely viewed as a cue for closure has to do with political culture. It is almost inconceivable that a ‘yes’ vote would be reversed, but a clear ‘no’ vote, too, would likely blight the prospects of a re-run for a generation or longer. Arguably ever since Winnie Ewing ‘reconvened’ the Scottish Parliament in 1999, and certainly since the first minority SNP administration of 2007, Scottish politics has been in a state of high constitutional alert.  The referendum itself has provided an all-consuming focus since early 2012, with every political act and deed from then until now, and doubtless from now on until our date with destiny next year, carefully weighed and dissected for its constitutional content or implications. If, as is undoubtedly true, there are already signs of constitutional fatigue in the political parties, in the media, in civil society and on the streets a year ahead of the vote, then we can only imagine how things will feel after another 365 days of increasingly intense engagement and polarised debate. More generally, 2014 feels like the end of a political era. A generation of Scottish politicians who cut their teeth on the devolution battles of the 1970s and who were fully formed by the class and nation-polarising politics of the Thatcher years now supply many of the senior players in the referendum drama. For them, this is undoubtedly the endgame. It is the destination towards which their political career has long been heading.  Whatever the result next year, it will be the last time many of the key actors will muster for constitutional battle.

A third reason for believing we are headed towards a constitutional denouement next year is a basic one of principle. Even in an unwritten constitution like ours, constitutional decisions are ‘second-order’ political decisions. That is to say, they are decisions about how to take other decisions.  They decide ‘who’ should decide ‘what’ and ‘how’. They provide the foundations without which ‘first-order’ programme politics on matters such as the economy, jobs, welfare, the environment and defence are not possible and without which our everyday legal rules and institutions are not viable. Like all foundations, they require to be reasonably secure. They have to be seen to be  legitimate, as broadly accepted and as beyond challenge except in special circumstances and in accordance with occasional and extraordinary procedures of contestation over the basic terms of political life As such an extraordinary procedure, the referendum cannot be allowed to become  a ‘neverendum’, everyone is agreed.  It has to be a ‘ once in a lifetime’ or a ‘once in a generation ‘ event – to quote the public pronouncements of the Scottish Secretary and the First Minister respectively to mark today’s pre-anniversary – not just because the opportunity might not arise again, and not only because of the exhaustion of a political culture, but also because normal political life might otherwise become unsustainable.

These arguments have much to commend them. And as the comments of the Scottish Secretary and the First Minister suggest, they have been taken on board by both sides. No doubt, moreover, these views will be expressed with ever greater stridency in the months ahead, as both Better Together and Yes Scotland seek to impress upon us the historical seriousness of what is at stake in the referendum and the importance of voting the right way. No doubt, too, once the nationalists publish their White Paper later this autumn setting out in detail what they understand the terms of independence to be, this clarity of principle will begin to be matched by a more transparent sense of the detailed implications.   Independence will cease to be an abstract and free-floating idea. It will instead begin to look like a substantive blueprint. And this will serve to reinforce a sense of the debate as a binary choice, with all outstanding questions on matter such as monetary union, EU membership, NATO membership and welfare citizenship either folded into the binary choice or postponed to another day. In other words, as the event draws nearer the ‘politics of the event’ will inevitably take over. The event will be nothing if not eventful, and its anticipation will bring with it its own powerful sense of dramatic closure.

Yet there is another side to this story, one that receives less attention but which demands some modification of the above picture. In the first place, we simply cannot assume that the decisive referendum will produce a decisive result. Most polls suggest a lead of 10-15% for Better Together, with around one in five still undecided. Not only does that leave the final outcome uncertain, it also raises the very real prospect of a close result, or at least one in which the losing side polls more than 35-40% of the vote. In these circumstances, the defeated side is not simply going to go away and lick its wounds. Instead, we should expect two things. First, alongside the main win-lose campaign, over the next year there will be shadow, spin-doctored campaign over the significance of defeat. At least some nationalists, not to mention the two out of five voters in the recent ICM poll who say they would vote No but would like the Scottish Parliament to become primarily responsible for taxation and welfare benefits in Scotland, will seek to interpret a narrow or respectable defeat as a mandate to insist that the Unionist parties come good on their promise to take further devolution seriously. Inevitably, this will open up new battle lines over how much further devolution is enough, over what constitutional process is required to deliver this, and over what constitutional options remain in the wings in the event of failure to build a winning consensus around the new proposal.

Equally, however, a narrow Yes vote would leave all sorts of constitutional questions unresolved. Much has been made of the tight timetable for constitutional changeover envisaged by the Scottish Government in their White Paper on Scotland’s Future. The plan is to have an early post-vote set of agreements in place between Edinburgh and London with a view, first, to providing  Edinburgh with  a ‘constitutional platform’ to act with much of the authority of an  independent state in the transitional period and, secondly,  to securing a final timetable for the negotiation and conclusion other agreements that will form part of a final independence settlement as early as March 2016. Outstanding questions for that final settlement will include the  division of financial and other assets and liabilities such as military bases and overseas assets, the transfer to Edinburgh of political authority over institutions previously controlled from London, and the content of the cooperative arrangements that the peoples of Scotland, England, Wales and Northern Ireland would continue to share – presumably  from matters as mundane as the issue of driving licenses to those as consequential as currency union and the future of a common welfare system. At the same time, Edinburgh would be in negotiation with the European Union and many other international organisations over the terms of new or continuing membership, all the time bearing in mind that the Scottish government should be careful not to over-commit itself since, under its own commitment, the mature constitutional form and purpose of the new Scotland should await the deliberations of a post-independence constitutional convention. Obviously, there is much scope in such a complex and ambitious timetable for the UK government of whatever political colour, complete with a fresh general election mandate in 2015, to be more or less obstructive or co-operative, more or less generous in its understanding of how it must deliver the terms and consequences of Scottish independence. And undoubtedly, its attitude would in some measure be influenced by the outcome of the referendum vote and the strength of the mandate for independence delivered.

My purpose in outlining these possibilities, however, is not simply to indicate that everything will not be done and dusted next September, but to point to a wider sense of constitutional open-endedness. Today, in a nutshell, we live in a world where independence is not what it used to be. While the state remains the focus of political organisation, it is now merely first among equals. In place of a universal and uniform template of sovereign statehood, we have a highly differentiated mosaic of legal and political capacities. In place of an idea of internal sovereignty as comprehensive and monopolistic, authority is now typically partial and distributed amongst various political sites and levels – state, sub-state, regional and global. And in place of mutual exclusivity as the default condition of external sovereignty, we have overlap, interlock and mutual interference and dependence. This picture of complex interdependence is perhaps nowhere more vivid than in Europe. The prospect of Scottish independence, like the reality of UK independence, has to be viewed against a backdrop of the existence of the EU as a  supranational  economic polity of 28 states, the broader current of the Council of Europe as a standard bearer in human rights, the growing influence of the United Nations in peace and security, powerful global regimes in areas as diverse as climate change, nuclear non-proliferation and international trade, and a strong constitutional tradition of federalism and quasi-federalism  in states as diverse as Spain, Belgium, Germany and, of course, the United Kingdom  itself.

Many of the uncertainties which will attend the implementation of the referendum decision, and, indeed, that are affecting the very terms on which independence is sought and fought over during the campaign, arise precisely from this set of factors. EU membership is clearly one, with the continuing uncertainty over Scotland’s pathway to membership, but also over whether a Conservative-led Britain would stay in, and if so on what terms. The nature of a Scottish currency is another, whether part of a common area with sterling or resituated inside the Eurozone. Defence, is another still, with membership of NATO and the retention of a nuclear capacity a key fault-line of debate. Internal security, too, is an area where public goods are increasingly transnationally located; hence the controversy over an independent Scotland’s relationship to the Area of Freedom, Security and Justice in the EU and to the Schengen zone.  In these and many other areas, the choice is not between freedom and dependence, but a complex algorithm involving a multi-level trade-off between autonomy of voice in smaller units and the pooling of influence in larger units. What is more, these sorts of instrumental considerations are also reflected at the level of identity politics. When commentators say that the Scottish independence debate will not be won or lost at the level of cultural identification they speak a fundamental truth. The majority of us have mixed identities – a fact that the nationalists do well to respect with their endorsement of ‘Englishness’ and ‘Britishness’ as cultural categories with which they wish to engage. This both reflects and reinforces a sense that our constitutional and political status is not written indelibly on the cultural landscape but is highly and variably influenced at the margins by more concrete questions of costs and benefits.

All of this speaks, in the longer term, to a more fluid picture. However hard the race is run over the next year, and however concentrated the runners remain on the finishing line, all will not be won or lost on September 18th 2014, or indeed in the months and years immediately following that. If we try to stand back from the fray, we see instead a longer struggle, and a constantly receding finishing tape. For in a multi-part Europe and complexly interdependent world, the balance of interest and identities is such that it is difficult to conceive of any long-term scenario in which the various parts of the mosaic co-articulate in a settled matter.

This is not to say that our referendum is anything other than the political event of its generation. It is that event, and it should be treated as such. And the necessary virtue of constitutional foundations does, I repeat, demand as much security of our second-order rules as we can manage to achieve and to sustain. Yet we should not mistake any of this for constitutional finality. The lesson of the post-war globalizing world is that constitutional events are rarely conclusive and never self-contained, but feed into an on-going process of complex multi-sourced influence. And this is never more true than when we are concerned with the constitutional politics of sub-state identity, as the local example (still strangely neglected in many referendum discussions) of Britain and Ireland so vividly illustrates.  The one thing we can be certain about when we have finished counting the votes a year from now, therefore, is that the constitutional future will still look far from certain.

 Neil Walker is Regius Chair of Public Law and the Law of Nature and Nations at the University of Edinburgh.

This post originally appeared on the Scottish Constitutional Futures  Forum Blog, and is reposted here with thanks.

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Stephen Tierney: Towards a Fair and Democratic Process? Regulating the Referendum on Scottish Independence

stierneyThe referendum on independence is still a year away and already attention is focused on major substantive issues such as economic relations between an independent Scotland and the United Kingdom, and the ease or difficulty with which an independent Scotland would achieve membership of the European Union. What is often overlooked is that the credibility of the outcome of the vote on 18 September 2014, whatever that might be, will depend greatly on the legitimacy of the referendum process itself.

Already the procedural rules for the referendum have been taking shape, with one bill now enacted and the other before the Scottish Parliament. The franchise rules for the referendum are set out in the Scottish Independence Referendum (Franchise) Act (‘the Franchise Act’), introduced into the Scottish Parliament on 11 March, and enacted on 7 August. This Bill required to pass through the Scottish Parliament quickly to facilitate the registration of voters, particularly new voters since the franchise for the referendum is extended to 16 and 17 year olds. The Scottish Independence Referendum Bill (‘the Referendum Bill’) was introduced into the Parliament on 21 March 2013 and is expected to be passed in November.

The legislation was preceded by the Edinburgh Agreement signed by the United Kingdom and Scottish Governments on 15 October 2012. This, and the associated ‘memorandum of agreement’, provided that the referendum should have a clear legal base; be legislated for by the Scottish Parliament; be conducted so as to command the confidence of parliaments, governments and people; and deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect. This has been formalised by an Order in Council (per section 30 Scotland Act 1998) which devolves to the Scottish Parliament the competence to legislate for a referendum on independence which must be held before the end of 2014 (Order in Council, para 3).

In this post I will summarise some of the main points to come out of this legislation: the franchise rules for the referendum, the question that will be asked, the role for the Electoral Commission, the Referendum Period, and the parameters for other important process issues, in particular, the funding and expenditure rules.

Franchise

The general franchise demarcation set out in the Franchise Act is uncontroversial. The franchise for the referendum is to be the same as for Scottish Parliament elections and local government elections (Franchise Act, section 2), mirroring the franchise used in the Scottish devolution referendum in 1997. One consequence is that EU citizens who are resident in Scotland will be able to vote in the independence referendum.

One major difference from the 1997 franchise, however, is the provision in the Franchise Act extending the vote to those aged 16 and 17 (Franchise Act, section 2(1)(a)). This is a radical departure; never before have people under the age of 18 been entitled to vote in a major British election or referendum (the age of 18 as the threshold for UK elections is set out in the Representation of the People Act 1983, section 1(d)). Another notable provision of the Franchise Act excludes convicted persons from voting in the referendum if they are detained in a penal institution (Franchise Act, Section 3). This exclusion will apply even if the current ban on prisoners voting is modified in relation to elections prior to the date of the referendum. This has been a controversial topic in the United Kingdom ever since the European Court of Human Rights ruled that the blanket ban on prisoner voting in UK elections violated Article 3 of Protocol 1 of the European Convention on Human Rights (Hirst v the United Kingdom (No 2) [2005] ECHR 681). It would seem, however, that section 3 of the Franchise Act does not violate the Convention since A3P1 guarantees ‘the free expression of the opinion of the people in the choice of the legislature’ (emphasis added), which is generally taken to refer exclusively to parliamentary elections and to exclude referendums.

 The Question

The Referendum Bill contains a raft of important provisions which, inter alia, frame the question to be put to voters. The question as originally proposed by the Scottish Government has been changed. The formulation set out in the White Paper ‘Your Scotland, Your Referendum’, published in January 2012, was: ‘Do you agree that Scotland should be an independent country?’ Following conclusion of the Edinburgh Agreement, the Scottish Government decided to send its proposed question for review to the Electoral Commission. The Commission in its subsequent report took issue with the phrase ‘do you agree’, suggesting it could lead people to vote Yes. It therefore suggested a change to the question. This has been accepted by the Scottish Government and the new question is now contained in the Referendum Bill: ‘Should Scotland be an independent country?’ (Referendum Bill, section 1(2)).

Electoral Commission

The Referendum Bill also formalises a more general oversight role for the Electoral Commission. Among a number of statutory duties the Commission is given the task of promoting public awareness and understanding in Scotland about the referendum, the referendum question, and voting in the referendum (Referendum Bill, section 21). This is likely to be a challenging role, particularly in explaining the referendum question. There is already a heated debate between the UK and Scottish Governments as to what ‘independence’ will mean for Scotland. It is hard to see how the Electoral Commission can attempt to produce an objective account of a number of highly technical and fiercely contested issues, concerning not only international relations but also defence, economic relations, the question of a currency union, the disentanglement of the welfare state, national debt etc., particularly when so many features of the post-referendum landscape would be contingent upon negotiations between the two governments in the event of a majority Yes vote. And indeed in evidence to the Committee in May John McCormick, the Electoral Commissioner for Scotland, said that the Commission would ‘not seek to explain to voters what independence means’ but would offer information ‘aimed at ensuring that all eligible electors are registered and know how to cast their vote.’

Referendum Period

The Referendum Bill sets a regulated period of 16 weeks before the referendum within which the statutory regime of campaign regulation will take effect, including for example, limits on campaign expenditure (Referendum Bill, Schedule 4, Part 3). Since the referendum will still be the best part of a year away by the time the Referendum Bill is passed, this leaves a lengthy period within which the two main referendum campaigns will not be subject to these detailed provisions. Another set of regulations introduce what is known as a ‘purdah’ period. This is common in UK elections. Under PPERA there is to be no promotional activity by government, local authorities or public bodies during the 28 day ‘relevant period’ prior to an election poll. This provision is largely replicated in the Referendum Bill (section 10 and Schedule 4, para 25) in relation to the Scottish Government and a wide range of other public bodies which must not engage in promotional activity in the four weeks prior to the referendum. The UK Government also committed to be bound by equivalent restrictions in the Edinburgh Agreement (for comment on this by Deputy First Minister Nicola Sturgeon see Scottish Parliament Referendum (Scotland) Bill Committee, 13 June 2013, Official Report, cols 554 and 560).

Funding and Spending Rules

Efforts are made within the Referendum Bill to ensure equality of arms between the two campaign groups. Each side in the campaign can apply to the Electoral Commission to be appointed as one of two ‘Designated Organisations’, and both the Yes Scotland and Better Together campaign groups have intimated their respective intention to do so. One notable feature of the Referendum Bill is that there is to be no public funding for any designated organisation. This is a conscious departure from PPERA which does offer public funding for referendums. The decision not to fund the 2014 referendum was a political one taken by the Scottish Government. It has not resulted in any significant disagreement, presumably because both campaigns expect to be amply funded by private donors.

The Edinburgh Agreement (paras 24-29) also covers funding and expenditure issues. Building on this, the Referendum Bill contains detailed provisions on a range of funding issues. A ‘Campaign Rules’ provision creates a regulatory regime through which funding, spending and reporting will be administered (section 10 and Schedule 4). This is generally in line with standard PPERA rules. A ‘Control of Donations’ provision (Schedule 4, Part 5) indicates what types of donations are allowed and what constitutes a ‘permissible donor’ (Schedule 4, para 1(2)). Under these provisions an application must be made for this status. There are also reporting requirements which mean that reports on donations received will require to be prepared every four  weeks during the referendum period (Schedule 4, para 41). These rules will all be overseen by the Electoral Commission.

Spending Limits

Within the Referendum Bill there are four categories of actor entitled to spend money during the campaign period: Designated Organisations (which can each spend up to £1,500,000) (Schedule 4, para 18(1)); political parties as ‘permitted participants’ (see below) (Schedule 4, para 18(1)); other ‘permitted participants’ who may spend up to £150,000 (Schedule 4, para 18(1)); and any other participants spending less than £10,000, which means they do not require to register as permitted participants.

Political parties as ‘permitted participants’  have a spending limit of either £3,000,000 multiplied by their percentage share of the vote in the Scottish Parliament election of 2011, or £150,000 (whichever is greater). By this formula the spending limits for political parties represented in the Scottish Parliament is as follows:

Scottish National Party: £1,344,000
Scottish Labour Party: £834,000
Scottish Conservative & Unionist Party: £396,000
Scottish Liberal Democrats: £201,000
Scottish Green Party: £150,000

The Referendum Bill also defines ‘campaign expenses’. These include campaign broadcasts, advertising, material addressed to voters, market research or canvassing, press conferences or media relations, transport, rallies, public meetings or other events. This also extends to notional expenses such as use of/sum of property, services or facilities etc. ( Schedule 4, paras 9 &10). There are also detailed rules on reporting of expenditure (Referendum Bill, Schedule 4, paras. 20-24. The Electoral Commission has a power to issue guidance on the different kinds of expenses that qualify as campaign expenses: Schedule 4, para 10).

It seems that these rules will lead to a generally level playing field in terms of expenditure within the Regulatory Period. For example, the total spending limit for the two pro-independence parties (SNP and Greens) is almost equal to that for the three unionist parties – Labour, Conservative and Liberal Democrat. But given that these spending limits only apply in the 16 weeks before the referendum, this does leave the possibility of spending differentials between the two campaigns before this period begins. It should be observed, however, that these rules reflect the spending limits recommended by the independent Electoral Commission.

Finally, the Referendum Bill provides for civil sanctions (Schedule 6) and criminal offences (Schedule 7) in relation to various categories of electoral malpractice; and the Electoral Commission is given an important role in enforcing the former.

The Referendum Bill is approaching the end of its Stage 1 process and still has some way to go in its passage through the Scottish Parliament. But it is an instrument which, in building upon the Edinburgh Agreement principles, should set the conditions for a fair, lawful and democratic referendum. A significant task for the Electoral Commission, and for academic and other observers over the next year, will be to monitor how well the legislation in the Referendum Bill and Franchise Act is implemented and how responsibly all of those engaged in referendum campaigning behave. Compliance with the letter and the spirit of the legislation will be essential if the voting public is to have the best chance to participate in the referendum in an informed way and if the process as a whole is to live up to the aspirations of the Edinburgh Agreement.

Stephen Tierney is Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law, University of Edinburgh. The author also acts as Constitutional Adviser to the Scottish Parliament Referendum Bill Committee. This paper is written in a personal capacity.

Suggested citation: S.Tierney, ‘Towards a Fair and Democratic Process? Regulating the Referendum on Scottish Independence.’  (27th August 2013) (available at http://ukconstitutionallaw.org).

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Aileen McHarg: Access To Judicial Review In Scotland

aileenReaders of this blog will be familiar with the controversial reforms to the judicial review procedure in England and Wales (discussed by Elliott and by Bondy & Sunkin), premised on the need to reduce the burden it imposes on public services by reducing the time limit for certain types of cases, reforming the permission stage, and increasing the fees charged, and recently implemented by Civil Procedure (Amendment No. 4) Rules 2013, SI 2013/1412.  Judicial review procedure in Scotland currently differs from England and Wales in having no equivalent of the permission stage, nor any fixed time limit within which to bring an application.  However, notwithstanding that the rate of applications for judicial review per capita in Scotland is only around a third of that south of the border – 342 cases in 2010-11 (Scottish Government, Civil Judicial Statistics 2010-11) as against 11,200 cases in England and Wales in 2011 (Ministry of Justice, Judicial and Court Statistics 2011) – the 2009 Report of the Scottish Civil Courts Review (the ‘Gill Review’) noted that there had been a steady increase in the numbers of judicial review petitions and considered that these cases took up a disproportionate amount of court time.  It therefore recommended following England and Wales by introducing a leave requirement and a three month time limit.

These recommendations have now been taken forward by the Scottish Government in its consultation  on the Draft Courts Reform (Scotland) Bill.  Section 84 of the Draft Bill amends the Court of Session Act 1988 to provide that:

  1. An application to the supervisory jurisdiction of the Court of Session must be made before the end of (a) the period of three months beginning with the date on which the grounds arose or (b) such longer period as the Court considers equitable having regard to all the circumstances (section 27A).  In view of the decision in the Buglife case, the Scottish Government decided not to include any overriding requirement that petitions should be brought promptly.
  2. No proceedings may be taken in respect of an application to the supervisory jurisdiction unless the Court has granted leave for the application to proceed.  Leave may be granted only if the Court is satisfied that (a) the applicant can demonstrate a sufficient interest in the subject matter of the application and (b) the application has a real prospect of success.  There is no requirement for an oral hearing at the leave stage, but if leave is refused without an oral hearing the petitioner may within seven days request a review of the decision at an oral hearing before a different judge.  There is also provision for appeal to the Inner House (sections 27B-D).

The proposals have been welcomed by some of the respondents to the consultation  – particularly, unsurprisingly, by public authorities.  However, they clearly create additional barriers to access to judicial review in Scotland, and are open to criticism on two grounds.  First, as with the recent English and Welsh reforms, they are based on inadequate evidence of their necessity.  Secondly, there is a risk of producing unintended consequences that may increase rather than reduce the burden on court time.

Leave

The Gill Review’s rationale for recommending the introduction of a leave requirement was that it would assist in encouraging early concessions by respondents in well-founded cases and provide a means of filtering out unmeritorious applications, thereby freeing up court time to deal more expeditiously with cases in which leave is granted.  A striking feature of both the Gill Review and the Scottish Government’s consultation paper, however, is the complete absence of hard evidence put forward to support the proposition that there is a significant problem in Scotland with unmeritorious cases being brought.  No statistics are given as to the outcomes of judicial review applications, while the disproportionality of the amount of court time devoted to such cases is inferred purely from the fact that they take up a higher proportion of sitting days than the total number of petitions would suggest, without any analysis of the importance or complexity of judicial review applications compared with other types of cases.  The only extended empirical study of judicial review in Scotland (Mullen, Pick & Prosser, Judicial Review in Scotland, 1996), which concluded that neither leave nor a time limit was necessary, is not cited in either paper, and the more extensive English empirical literature is used highly selectively.  Bondy & Sunkin’s research for the Public Law Project, which found a high refusal rate at the permission stage, is relied upon to support the conclusion that the English procedures work well in filtering out unmeritorious claims and prompting early settlement.  But there is little or no discussion of the nuances of that research, nor consideration of its applicability in Scotland.

Bondy & Sunkin themselves are reluctant to conclude that a high rate of refusal of permission is evidence of a high number of unmeritorious applications.  For instance, they note that the refusal rate is significantly higher where cases are decided on the papers rather than at an oral hearing.  They also note the impact of tight time limits in increasing the likelihood of weak claims and artificially inflating the caseload by reducing the time available for settlement.  In addition, neither Gill nor the Scottish Government considers the potential impact of the introduction of a leave stage – and consequent applications for reviews and appeals – on both court time and litigation costs.  Murray Stable, in their response  to the consultation, point out that the English system is both slower and more expensive than the current Scottish process, and that legal aid is not currently available for leave proceedings in Scotland.  Finally, there is no mention of the objection in principle to the introduction of a leave requirement, i.e., that it makes access to judicial review dependent upon the exercise of judicial discretion.  Bondy & Sunkin’s research confirms earlier findings of a high variation in the rate at which permission is granted by different judges.  They attribute this to the subjective nature of the ‘sufficiently arguable’ criterion applied south of the border, and report a widespread perception that judges take account of factors other than the legal merits of cases.  The ‘real prospect of success’ test proposed by the draft Courts Reform (Scotland) Bill would appear to set an even higher hurdle for Scottish applicants to overcome, without being any less subjective.

As the Faculty of Advocates has stated in its response to the consultation, the real problem with judicial review in Scotland is arguably not that there are too many cases, but that there are too few, especially outwith the immigration and asylum field which, as in England and Wales, dominates the judicial review caseload.  Insofar as there is thought to be a problem in that particular area (and again there is no evidence), reforms have already been introduced to try to promote early settlement by requiring prior notification of applications for judicial review to the UK Border Agency.  Moreover, the Court of Session could follow the English lead by transferring more of the immigration and asylum caseload to the Upper Tribunal, but so far has not done so, other than in relation to cases challenging procedural rulings or procedural decisions of the First Tier Tribunal (Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008, SSI 2008/357).

Time Limits

Although the introduction of a leave requirement seems to impose an unnecessary additional hurdle in the path of applicants for judicial review, the three month time limit would appear to be the more significant change and the greater barrier to access to justice.

As noted above, there is presently no specific time within which an application must be brought in Scotland, but applications can be dismissed for undue delay under the common law doctrine of mora, taciturnity and acquiescence.  Until recently, this was a relatively rare plea in judicial review cases but there has been a marked increase (the reasons for which are not clear) in its use in the past couple of years: a Westlaw search reveals sixteen cases in which the issue was raised since 1 January 2011, compared with only four in the previous two years.  However, mora works quite differently to a statutory time bar.  For one thing, the delay in bringing proceedings must be unreasonable, which is judged in all the circumstances of the case.  Secondly, there must be taciturnity and acquiescence as well as delay – essentially failure to object to the impugned decision and passive acceptance of its consequences.  The plea is therefore successful relatively infrequently, although there is clearly scope for inconsistency in its application.  For example, in McGinty v Scottish Ministers [2011] CSOH 163, a mora plea was upheld in relation to a challenge to the legality of the Scottish Ministers’ conduct of the strategic environmental assessment of their second National Planning Framework brought a year after notice of the assessment was published in the Edinburgh Gazette.  Although the petitioner claimed that he did not become aware of the proposal until seven weeks before he lodged his petition for judicial review, the court held that he ought to have been aware of it earlier.  By contrast, in OWA v Secretary of State for the Home Department [2013] CSOH 52, a mora plea was rejected in relation to a challenge to an immigration decision taken four years earlier.  The petitioner had understandably failed to appreciate the significance of a stamp in her passport, and hence could not be said to have acquiesced in the decision.  As in England and Wales, there can also be considerable uncertainty as to when time begins to run in relation to multi-stage or continuing decisions, and differing judicial attitudes as to the reasonableness of delaying resort to litigation (compare, e.g., Packard Ptnr [2011] CSOH 93  and Portobello Park Action Group Association v City of Edinburgh Council  [2012] CSIH 69.

The Gill Review took the view that mora was undesirably vague and not well-suited to a procedure designed to provide a speedy and effective remedy to challenge the decisions of public bodies.  In such cases, it argued, there was a public interest in challenges being made promptly and resolved quickly, hence it recommended the introduction of a fixed time limit.  Once again, however, there was a dearth of hard evidence offered in support of this proposal.  In fact, the only evidence provided as to the existence of a problem of undue delay was an anecdotal claim by one respondent government agency that it was still being served with applications in relation to immigration and asylum decisions several years after the they had been taken.  This, though, is an area in which the case for fixed time limits is particularly weak because decisions rarely have implications beyond the immediate parties.  Similarly, in response to empirically-based arguments that the three month time limit in England and Wales causes problems, particularly for vulnerable applicants, Gill preferred the viewed expressed by ‘a number of our respondents … that the time limit in England and Wales does not seem to unduly inhibit well-founded claims.’ (para 37).

Of course, the draft Bill does contain provision for the time limit to be waived in appropriate cases.  Nevertheless, a statutory time bar shifts the burden of proof from the respondent to establish that the delay was unreasonable to the petitioner to prove that it was not.  Moreover, there is a worrying suggestion in the Scottish Legal Aid Board’s response to the consultation on the draft Bill that petitions brought after three months are unlikely to obtain legal aid.  Accordingly, the probable consequence of the introduction of a time limit is that, in future, applications which would be heard at the moment will not be brought, or will be refused leave.  In addition, it is bound to produce more litigation concerning whether the time limit has been breached or ought to be waived.

Procedural Exclusivity

Another unintended consequence of the reforms is likely to be increased litigation over choice of procedure.  In Scotland, judicial review is an exclusive procedure for cases invoking the supervisory jurisdiction of the Court of Session.  However, the Supreme Court has recently confirmed in Ruddy v Chief Constable, Strathclyde Police [2012] UKSC 57 that it does not have to be used when the questioning of a public law decision is only ancillary to the establishment of some other form of action.  According to Lord Hope, the test is whether or not the decision complained about has to be reviewed and set aside in order to provide the litigant with a basis for his or her claim.

The danger that cases might be time-barred because they are erroneously brought via the wrong procedure is partially addressed via the proposal in the Consultation Paper to abolish the distinction between ordinary and petition procedure in the Court of Session (and in any case provision already exists for transferring cases into and out of the judicial review procedure – chapter 58.12 of the Rules of the Court).  However, it is likely that there will be an increase in deliberate attempts to circumvent the judicial review procedure and so to avoid the imposition of the time limit.  Since the test laid down in Ruddy appears easier to state than to apply (see, e.g., Shehadeh v Advocate-General for Scotland [2012] CSOH 196), it seems inevitable that more sterile procedural disputes of the type that caused such difficulties in England and Wales in the wake of O’Reilly v Mackman [1983] 2 AC 237 will arise.

Conclusion

It is disappointing to see such an important change to judicial review in Scotland being undertaken on such a flimsy evidential basis, and particularly surprising to see a government ostensibly committed to preserving the distinctiveness of Scots law so willing to follow the English approach, especially in a case where Scottish difference genuinely seems to be worth preserving.  It is probably unlikely that the Scottish Government will be persuaded to change its mind – not least because, as Justice Scotland points out in its consultation response, it will be one of the major beneficiaries of the proposed change.  One can only hope, therefore, that the Scottish Parliament will oblige it to do so.

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

Suggested citation: A. McHarg, ‘Access To Judicial Review In Scotland’  UK Const. L. Blog (30th July 2013) (available at http://ukconstitutionallaw.org)

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Aileen McHarg: The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson

aileenIain Jamieson’s earlier post argues that the ability of the Scottish Parliament to implement its own model of press regulation in response to the Leveson Report has effectively been ousted by the UK government’s proposal to establish a UK-wide system of press regulation by Royal Charter.  I would take issue with two aspects of his analysis.

First, Jamieson claims that, since the provisions of the proposed Royal Charter will be entrenched by clause 92 of the Enterprise and Regulatory Reform Bill, which applies to Scotland, the Scottish Parliament cannot legislate to amend the Royal Charter or provide that it should not apply to Scotland.  Clause 92 provides that the Charter cannot be amended except in accordance with the procedure laid out in the Charter itself (two thirds majority of each House).  As Jacob Rowbottom has argued on this blog, the degree of entrenchment actually provided by this device is limited because clause 92 can itself be repealed or amended by subsequent UK legislation with no special majority.

To argue that the Scottish Parliament will nevertheless bound be by clause 92 therefore requires the further claim that, because clause 92 (however indirectly) ‘occupies the field’ in relation to press regulation, the Scotland Act 1998 will be impliedly repealed insofar as it devolves power to legislate on that issue to the Scottish Parliament.  There are at least three ways of responding to this implied repeal argument, all of which lead to the conclusion that the Scottish Parliament will not in fact be bound by clause 92.

The first, and most speculative, response would be to rely on Laws LJ’s obiter dictum in Thoburn to the effect that, since the Scotland Act is a constitutional statute, it cannot be impliedly repealed.  This would mean that the only way in which the Scottish Parliament’s legislative competence can be reduced would be through express amendment via primary legislation or a section 30 order, either of which would require (by convention, in the former case, and by statute, in the latter) the consent of the Scottish Parliament.

It is, however, unnecessary to adopt such a heterodox approach.  A second, more conventional, approach would be to accept that the Scotland Act may be impliedly repealed, but to argue, as Barber and Young have done (‘The Rise of Prospective Henry VIII Clauses and Their Implications for Sovereignty’ [2003] PL 112, pp 112-6), that a statute can only be impliedly repealed by a subsequent statute on the same subject matter, not merely by a later conflicting statutory norm.  Since the Enterprise and Regulatory Reform Bill does not deal with the same subject matter as the Scotland Act (the division between reserved and devolved legislative competences), it cannot impliedly repeal the transfer of power to the Scottish Parliament effected by the Scotland Act even if a norm contained within it or flowing from it for the time being ‘occupies the field’ of a particular devolved competence.  It would, on this analysis, still be open to the Scottish Parliament to assert its legislative competence in relation to press regulation and repeal (expressly or impliedly) the provisions contained in clause 92.

A third, even more conventional approach, would lead to the same conclusion.  This would be to accept that a statutory provision can be impliedly repealed by a later inconsistent statutory norm, even if the subject matter of the two statutes is not identical.  This view, however, requires a more nuanced approach to when such a conflict arises.  In relation to the Scotland Act 1998, for instance, it may be argued that the transfer of legislative competence in devolved areas to the Scottish Parliament is not inconsistent with (and therefore not impliedly repealed by) later UK legislation on a devolved matter because the Scotland Act itself, in s.28(7) expressly envisages that such a situation may occur.  This approach suggests that the Scotland Act, properly understood, involves a sharing of legislative power between the UK and Scottish Parliaments, and that the latest norm on a particular devolved matter will prevail irrespective of the Parliament from which it emanates.  This analysis would appear to be the one which best fits the post-devolution legislative practice, where the Scottish Parliament has regularly consented to allow the UK Parliament to legislate on its behalf, but has on some occasions subsequently amended such legislation.

The second point which arises out of Jamieson’s blog concerns whether the UK government is legally or constitutionally entitled to impose a system of press regulation on Scotland via the royal prerogative.  The constitutional position, as set out in written answer by Tony Blair on 30 June 1999,  is that where the exercise of prerogative powers relates to a matter within devolved competence, it is for the First Minister rather than Ministers of the Crown to advise the Queen.  The situation is slightly different in relation to business of the Privy Council, such as grant or amendment of a Royal Charter, because it is the Privy Council as a whole rather than a particular minister which advises the Queen.  Nevertheless, the written answer states that:

the advice in relation to a particular matter which the Privy Council offers to Her Majesty is in many instances based, either by virtue of statutory provision but more often by convention, on advice or information provided to the Privy Council by one or more particular Ministers of the Crown as the Privy Counsellor with the principal interest in that matter.’

It goes on to state that, in areas of devolved competence, the Privy Counsellor with the principal interest would be the First Minister (who is a member of the Privy Council).

It is not clear from these provisions whether the Privy Council as a whole is entitled to depart from the advice of the principal minister.  Where there is a conflict of views between members of the same administration it may perhaps be argued that the majority view should prevail.  However, in the case of a conflict between the view of the First Minister and other Privy Counsellors representing the UK government, there is a strong case (for the reasons that Jamieson outlines) for saying that it should not.

Given that the question of who should advise the monarch on the exercise of the royal prerogative is a matter of convention rather than law, it may be difficult to argue that the UK government would be acting illegally if the Privy Council were to recommend the adoption of a system of press regulation applying throughout the UK in the face of Scottish opposition.  As a matter of constitutional morality, though, it is hard to avoid the conclusion that to treat the design of a new UK-wide system of press regulation as a matter for negotiation purely between the main parties in the UK Parliament is constitutionally improper.

Contrary to Jamieson, therefore, I would argue that just because the UK government has chosen a regulatory vehicle which manages to avoid the application of the Sewel Convention, it does not thereby follow that the Scottish Parliament is compelled to accept it or deprived of its competence to legislate for a different system of press regulation in Scotland.

(I am grateful to Chris Himsworth for his very helpful comments on this note and particularly for alerting me to the Blair written answer.)

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

 Suggested citation: A. McHarg, ‘The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson’ UK Const. L. Blog (21st March 2013) (available at http://ukconstitutionallaw.org)

 

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News: Scottish Referendum Question Appears to be Resolved.

The debate over the legality of a Scottish referendum appears to be over.  The media are reporting that the Scottish and Westminster governments are on the verge of agreement, using a section 30 order to mandate the Scottish Parliament’s referendum legislation.  The Scottish Parliament will get to set the question, the timing, and be able to determine whether 16 and 17 year olds get to vote.  The Westminster government, in its turn, has ensured that there will be a single question on the ballot paper – no devo-max or devo-plus.  Each side avoided a long and costly battle through the courts, which will please the taxpayer and disappoint lawyers.

 The conclusion of the question over the legality of the referendum does not end the constitutional questions surrounding the vote.  Whether the vote is won or lost, further constitutional issues will be raised by the decision.  If Scotland votes for independence, a complicated and, probably, protracted process of negotiation will be required between Scotland and the remainder of the UK.  It would be helpful if the parameters of this process – both the way it would be undertaken and the issues that it would have to resolve – were canvassed before the vote.  Scotland would also need to produce its own constitution prior to formal independence.   Again, the process by which this new constitution would be created merits reflection.  If, on the other hand, Scotland votes against independence, there would need to be some constraint over the frequency of such referendums in the future.  It would be profoundly destabilising for the Union if independence referendums were held every couple of years.  Once more, there would be an advantage to clarifying this issue before the vote is held.

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Aileen McHarg: The Dog That Finally Barked: Constitutional Review under the Scotland Act

The reviewability of Acts of the Scottish Parliament (ASPs) at common law has, understandably, attracted considerable interest of late, on this blog and elsewhere.  However, the Supreme Court’s decision in AXA General Insurance Ltd v the Scottish Ministers [2011] UKSC 46 confirmed that the primary means of challenging ASPs is upon the grounds laid down in section 29 of the Scotland Act 1998, and there have in fact been several recent cases brought on statutory grounds which merit similar attention.

In comparative terms, the model of constitutional review – if it is appropriately so described – contained in the Scotland Act is a particularly strong one, permitting both pre- and post-enactment challenges; direct and collateral challenges; and inter-institutional and individual challenges.  Yet, as has frequently been observed, the courts have so far played a relatively limited role in policing the boundaries of the Scottish Parliament’s legislative competence.  Indeed, for the first decade after devolution, although there were a few cases, no legislation was found to be ultra vires, there were no inter-institutional challenges, and it was not until 2008 that any statutory ground other than breach of Convention rights was invoked (Logan v Harrower 2010 JC 1).

In the last few years, however, all this has started to change.  To begin with, the initial trickle of cases appears to be growing into a steady stream.  Whereas between 1999 and 2009 there were only nine reported cases in which legislative competence was in issue, since 2010, there have already been eleven such cases.

Secondly, in February and March of this year, the Scottish courts issued their first rulings that provisions were ‘not law’ in terms of section 29 of the Scotland Act.  Cameron v Cottam 2012 SLT 173 concerned section 58 of the Criminal Justice and Licensing (Scotland) Act 2010, which imposed a standard bail condition requiring the accused to participate in identification procedures and to allow prints, impressions or other bodily samples to be taken.  Because the condition was mandatory and therefore not necessarily justified in particular cases, the Court of Criminal Appeal held that it breached Article 5 of the European Convention on Human Rights (ECHR).  In Salvesen v Riddell [2012] CSIH 26, the Inner House of the Court of Session held that section 72 of the Agricultural Holdings (Scotland) Act 2003 was an unjustifiable interference with Article 1 Protocol 1 ECHR.  The 2003 Act abolished a form of agricultural tenancy – the limited partnership tenancy – which was used to prevent tenants gaining security of tenure, and replaced it with a statutory form of limited duration tenancy which gives tenants enhanced rights.  Following a wave of termination notices issued by landlords in anticipation of the legislation being passed, an anti-avoidance measure was inserted into the Bill which retrospectively cancelled the effect of such notices.  Giving judgment for the court, Lord Gill held that the provision went further than was justifiable for anti-avoidance purposes and was in fact punitive, motivated by the sponsoring minister’s view that the landlords’ action was immoral.  On the contrary, according to Lord Gill, there was nothing immoral in landlords exercising contractual rights to which tenants had agreed.

The third notable change is in the character of recent cases.  Although Convention rights remain the most popular ground of challenge, cases are at last emerging on other section 29 grounds.  The first to involve the devolved/reserved competence boundary was Logan v Harrower, which challenged the validity of section 45 of the Criminal Proceedings Reform etc (Scotland) Act 2007, which raised the maximum sentence available upon summary conviction in the Sheriff Court, insofar as it applied to road traffic offences, which are reserved under Schedule 5, Head E1 of the Scotland Act.  Although the challenge failed in the appeal court, it was essentially revived before the Supreme Court in Martin v HM Advocate 2010 SC (UKSC) 40.  The point at issue in both cases was a rather esoteric one, namely whether a general change to the criminal law, carried out for a devolved purpose, but which for reasons of consistency made changes to the law on reserved matters, and would therefore have been intra vires in terms of section 29(4), was nevertheless ultra vires because it altered a rule which was ‘special to a reserved matter’ in terms of Schedule 4 paragraph 2(3).  By a three/two majority, the Supreme Court in Martin held that the rule was not ‘special to a reserved matter’ because it merely altered the procedural route by which a particular sentence could be imposed, rather than the maximum sentence available for road traffic offences.  However, six months later, in Henderson v HM Advocate 2011 JC 96, the Crown had little option but to concede that a similar general sentencing provision – a power to impose an order for lifelong restriction created by section 1 of the Criminal Justice (Scotland) Act 2003 – should be read down so as not to apply to offences under the Firearms Act 1968.  Firearms is also a reserved matter (see Schedule 5 Head B4), and the effect of the impugned legislation clearly was to increase the maximum sentence available in such cases.

Another ASP which has had multiple challenges is the Tobacco and Primary Medical Services (Scotland) Act 2010, which, inter alia, bans displays of tobacco and smoking-related products (section 1) and cigarette vending machines (section 9).  In Sinclair Collis v Lord Advocate 2011 SLT 620, it was claimed that the section 9 ban breached both Article 1 Protocol 1 ECHR and Article 34 of the Treaty on the Functioning of the European Union (TFEU) (free movement of goods).  The Lord Ordinary rejected both challenges, holding that although it was not clear whether the vending machine ban fell within Article 34, it was in any case clearly a justified and proportionate restriction given its aim to protect public health, and that the same applied to the property rights challenge.  The attack was renewed in Imperial Tobacco v the Lord Advocate [2012] CSIH 9, this time on both provisions and on the grounds that they related to consumer protection, which is a reserved matter under Schedule 5, Heads C7 and C8, and modified section 6 of the Union with Scotland Act 1706, so far as it relates to freedom of trade, reserved by Schedule 4 paragraph 1(2)(a).  Imperial Tobacco is undoubtedly the most significant of the recent cases, since it is the first to involve a straightforward claim that an ASP has encroached upon reserved matters, and the Inner House’s decision contains important guidance on how such disputes are to be resolved.  In particular, the judges rejected the Lord Advocate’s argument, based on Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, that, as a constitutional measure, the Scotland Act ought to be given a ‘generous and purposive interpretation’.  Although of constitutional significance, they insisted that the Scotland Act was not a constitution, but rather an Act of Parliament, and should therefore be interpreted in the same way as other statutes.  While statutes have to be interpreted in the light of their purpose, this requires specific evidence as to the background purpose, and in this case, since the purpose of Schedule 5 was simply to effect a division of powers between the Scottish and UK Parliaments, a purposive interpretation did not assist in determining where the dividing line was to be drawn.  Nevertheless, the court concluded that the tobacco bans were within competence: they were not consumer protection measures, and did not affect freedom of trade within the meaning of the Act of Union.

As to future challenges, litigation is widely anticipated in relation to the Alcohol (Minimum Pricing) (Scotland) Bill, again based on the claim that it is a disproportionate restriction on free movement of goods under Article 34 TFEU.  And the prospect remains of a challenge to the competence of the promised independence referendum, unless agreement is reached on an Order under section 30 of the Scotland Act to confer express power on the Scottish Parliament to legislate on this matter.  The independence referendum issue is, of course, also significant as the first instance of an open dispute between the Scottish and UK governments about the vires of proposed legislation.

Much more could be said about the decisions in these recent cases.  One might speculate, for example, as to the factors which led the courts to strike down the provisions in Cameron v Cottam and Salvesen v Riddell, without much show of deference in either case.  One could also explore the apparent differences in approaches to the interpretation of devolution statutes as between the majority and minority in Martin, or between the House of Lords in Robinson and the Inner House in Imperial Tobacco.  However, since both Salvesen v Riddell and Imperial Tobacco have been appealed to the Supreme Court, which is also due to give judgment in another case (ANS v ML) involving the compatibility of section 31(3)(d) of the Adoption and Children (Scotland) Act 2007  with Article 8 ECHR, further discussion might reasonably be postponed until these cases have been finally resolved.

There is, though, another question on which it is equally interesting to speculate: why is it that so many more, and more varied, challenges to the validity of ASPs have been raised in the last few years?  It has been suggested that the main reason for the previous relative lack of resort to the courts is because of robust internal policing of the boundaries of the Scottish Parliament’s legislative competence, both within the devolved institutions, and through inter-governmental negotiation, the latter assisted by political consensus between the Scottish and UK governments for most of the period since devolution.  There is undoubtedly some truth in this view, since there are strong supports within the Scotland Act for political resolution of vires concerns.  These include provisions for pre-legislative declarations by sponsoring ministers and the Presiding Officer that Bills are within competence (section 31), for pre-enactment references by UK and Scottish law officers to the Supreme Court (section 33), and, in some circumstances, for pre-enactment veto by UK ministers (section 35).  Provisions such as sections 30 and 104 which, respectively, enable UK ministers to confer additional powers on the Scottish Parliament and (inter alia) to make changes to reserved matters consequent upon ASPs, as well as the greater than anticipated use of Legislative Consent Motions to allow the UK Parliament to legislate on Scotland’s behalf, also point to a co-operative approach to the achievement of legally effective legislation.  Moreover, such inter-governmental co-operation does not appear to be particularly dependent upon political compatibility: the independence referendum apart, there is no evidence, as far as I am aware, of greater disagreement over competence issues between the SNP at Holyrood and the Conservative/Liberal Democrat coalition in London than there was under previous administrations.

Nevertheless, internal policing of the boundaries of legislative competence cannot be the sole reason why so few judicial challenges emerged in the early post-devolution period, nor can it explain why the rate of challenge has increased so dramatically.  There are at least three reasons why political mechanisms cannot be expected to eliminate all potential challenges: first, the government(s) may identify possible legal problems, but for political reasons decide to legislate anyway; secondly, they may identify potential grounds of challenge, but conclude that they are unlikely to succeed; thirdly, they may simply fail to identify relevant competence issues.  Given the complexity of the reserved/devolved boundary, the reach and intricacy of potential EU constraints, and the open-textured nature of Convention rights, it would seem, on the face of it, that there must remain substantial scope for individual challenges.

So what factors might explain the changing incidence of judicial challenges?  These might include:

    • Greater awareness of the possibilities for challenge on the part of potential litigants and/or their legal advisers;
    • Greater perceived receptiveness of the courts towards vires challenges;
    • Reduced financial or other barriers to litigation;
    • Increased financial or other incentives for potential litigants to challenge legislation;
    • Bolder use of its powers by the Scottish Parliament, particularly in ways that impinge upon powerful interests.

More detailed examination would obviously be needed to establish the relevance of these suggested factors, and to identify other significant considerations.  The likelihood is that different combinations of factors are at work in different cases, and there are of course inherent difficulties in trying to prove a negative – i.e., why challenges have not been brought.  Nevertheless, there is important empirical work to be done in gaining a fuller understanding of the incidence of vires challenges and their motivating causes.  In turn, this would provide a more nuanced appreciation of the practical significance of the Scottish Parliament’s bounded competence, and of the role of judicial enforcement of the devolution settlement as just one policing mechanism amongst others.

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

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Nicholas Aroney: Federal Models for a U.K. Constitution?

When the referendum really comes, the sovereign Parliament must go.  But whether for good or for evil, the referendum, in principle at least, seems to be coming.

– C. H. McIlwain, The High Court of Parliament and Its Supremacy (1910), xv.

[N]ow we are witnessing something that would have seemed almost impossible a few years ago, a serious discussion taking place in the United Kingdom about the possibility, and the desirability, of the introduction of a federal, or ‘quasi-federal’ system there.

–  M. J. C. Vile, ‘Federal theory and the “New Federalism”’ (1977) 12 Politics 1.

Recent discussion about the possibility of the United Kingdom adopting a written constitution and forming itself into a federal state is not as new as it may seem.  Certainly, the discussion has raised more questions than it has answered.  For present purposes, we may start with the proposition that a federal state exists where there is (1) a binding constitution which (2) provides for representation of the peoples of the regions and localities of the federation within a federal parliament, (3) distributes power among central and regional governments, and (4) cannot itself be altered unilaterally by either the federal or regional parliaments.  As such, there is still a long distance between the present arrangement in the U.K. and a fully-orbed federal state.  Even if the current debate about the grounds, scope and effect of a Scottish independence referendum are resolved, and if popular and political will was to consolidate in favour of some kind of federal state (‘devo-max’ to the nth degree), many more questions about how to create a federal constitution would remain, centred on the four characteristics of a federal state noted above.

The first of these large questions concerns how a binding and legally entrenched constitution could come into being in the U.K., noting that U.K. law still treats the Parliament as the highest authority in the land and the institution that has the most plausible capacity to initiate, if not consummate, a constitutional change of such magnitude.  A second big question concerns precisely how representation of the constituent regions and localities would be instituted, noting among other things the problem of bifurcating the present Parliament at Westminster into two institutions, a federal legislature for the United Kingdom and a regional legislature for England, alongside the existing legislatures of Scotland, Wales and Northern Ireland.  The third question concerns the breadth of power that would to be devolved to the regional legislatures and whether it is feasible for the current asymmetry to be replaced by a more symmetrical devolution of powers.  And, fourthly, there is the very important question about what procedures would be laid down for the amendment of the constitution in the future, a question that cannot be separated from the first one, about how the constitution is to be established as legally binding upon the legislatures.

Just as the constitutional experience of many former British colonies has proven instructive for the analysis of the powers of the Parliament following the European Communities Act, the Human Rights Act and the recent European Union Act, so the experience of former colonies that have formed themselves into federations suggests several different ways in which a federal constitution for the U.K. might be designed and instituted.  In this short comment, I want to suggest that there are at least three basic ways of proceeding, exemplified in the diverse means by which federal constitutions were established in the United States, Canada and Australia respectively.  As it turns out, there are already many interesting parallels between the experiences of these three countries and current developments in the U.K., especially the potentially very significant referendum on Scottish independence presently being proposed (see Grégoire Webber’s recent contribution on the Canadian parallels), not to mention the similarly contentious referendum requirement laid down recently in the European Union Act.

Revolution was the path that the United States took, but in that country there continues a very important but still unresolved debate over whether, when the revolutionary claim to autochthony was effectively made, independence was secured severally by the individual American States or jointly by the States acting together as the Second Continental Congress in 1776 (cf the views of Jack Rakove, Akhil Amar and Henry Monaghan, among many others, on this point).  While many may say that the controversy has been made irrelevant by the outcome of the Civil War, the issue goes very significantly to the nature, design and interpretation of the U.S. Constitution (as US Term Limits v Thornton demonstrated).  The view that I think is best supported by the evidence is that assertions of independence and of constitutive authority were exercised both severally and jointly, but in a way that meant that no State would be bound by either the Articles of Confederation (ratified 1777-81) or the U.S. Constitution (ratified 1787-9) unless it individually ratified the proposed arrangement.  This was clearly the case for the Articles of Confederation, but it was also the case for the Constitution, even though the provision in the Constitution for ratification by only nine States meant repudiating the requirement of unanimity for the amendment of the Articles (see Articles of Confederation, Art. XIII; U.S. Constitution, Art. VII).  This fact of separate ratification by each State was indeed emphasised by James Madison in Federalist No. 39 when he said that the ‘assent and ratification’ of the Constitution, although in the name of ‘the people of America’, was given by the people ‘not as individuals composing one entire nation, but as composing the distinct and independent States’.  Even Chief Justice John Marshall, who is famous for asserting that the American Constitution ‘derives its whole authority’ from ‘the people’, admitted that the people when ratifying the Constitution had ‘assembled in their several States’, noting that ‘[n]o political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.’

Now, it is indeed quite unforeseeable at the present time that a federal constitution for Britain will emerge on the basis of a series of claims to revolutionary autochthony by the constituent people, or peoples, of the United Kingdom.  But the prospect of a Scottish referendum on independence as the basis upon which a new devo-max settlement might be negotiated, suggests that an analogy to the United States might not be altogether out of place.  And here, the making of the U.S. Constitution remains potentially relevant in at least one important respect, for it illustrates how the design of a federal constitution is related to the authority upon which it is conceived to be based.  As Madison pointed out, although the U.S. Constitution was thoroughly ‘federal’ in its foundation, the representative institutions, distribution of powers, direct effect of federal law, and means of amendment of the Constitution displayed both ‘federal’ and ‘national’ features.  To take the most obvious example, the U.S. Senate was chosen by the legislatures of the States on the basis of equality among the States (it is now directly elected by the voters in each State, but still on the basis of State equality), the House of Representatives was, and still is, elected by voters in a manner that is essentially proportional to each State’s population, and the President was and is elected through an electoral college which allocates to each State a number of votes corresponding to its total representation in both houses of Congress.  Similarly, the U.S. Constitution can only be amended through the consent of special majorities of the State legislatures or in conventions held in each State.  In both ‘representation’ and ‘amendment’, the federal principle is expressed in the special role and status of the States, while the national principle is expressed in the movement from unanimity among the States towards majority rule at a state and national level. Moreover, throughout, democracy is conceived essentially as representative democracy, even at the supreme constitutive moments of ratifying the Constitution and making formal amendments to it.

This much is fairly rudimentary, but it is the logic of the constitutional design that is important, for the prime questions to be addressed in constructing a federal system concern the many different ways in which Madison’s ‘federal’ and ‘national’ principles can be combined.  Other federal countries offer models of different combinations of these principles, but a tendency to move from unanimity among the constituent states to majority rule, and from control by the state governments towards popular involvement of some kind, is consistent across all federal systems that come into being on the basis of a negotiated agreement among several constituent states.  Some integrative systems go further in these directions than others, and all of them express the principles in specifically different ways, but the underlying principles are the same.

This brings us to the Canadian and Australian examples.  These two federal systems did not come into being through revolutionary assertions of autochthony.  Lawmakers in both instances were careful to ensure complete legal continuity with the then accepted authority of the British Parliament to legislate for the colonies.  But the Canadian and Australian ways of coming together and constructing a federation were significantly different.  The Canadian federation was designed in a manner that was consciously intended to avoid the supposed tendencies of the American system to disunity and dissolution, expressed most tragically in the Civil War.  Rather than begin with putatively sovereign states bargaining on the basis of a fundamental constitutive equality, the Canadian system was understood to rest, ultimately, on the authority of a sovereign Imperial Parliament which would through the British North America Act 1867 (BNAA) unite Ontario, Quebec and the Maritime provinces into a suitable form of union, modelled on the British system of parliamentary responsible government.  Accordingly, while political representatives of the Canadian colonies did participate in conferences in 1864 and 1866 at which the terms and structure of a proposed union were agreed in the form of a series of published resolutions, the colonies did not participate as equals (the Maritime provinces were treated, constitutionally, as a unit), and they did not presume to dictate to the Parliament the exact language of the statute under which they would be united.  Unlike the Americans, the Canadians thus wished to create a relatively unified federation, under which the legislative powers of the general government (the Dominion of Canada) would be plenary and the powers of the Provinces would be limited to certain specified topics – a significant departure from the American model, where the original and plenary powers of the constituent States were the very presupposition of the federal system and the powers of the United States Congress were therefore limited and specified.  The Canadian Provinces were thus conceived to be creatures of the BNAA (indeed, most of them still don’t have ‘constitutions’ of their own).  The provincial governments were presided over by Lieutenant Governors and ‘represented’ by Senators appointed by a Governor-General advised by the government of the Dominion of Canada as a whole.  Indeed, the very nomenclature was significant: Provinces, not States; Lieutenant Governors, not State Governors, and so on.  Moreover, the constitutive dependence of Canada on the Imperial Parliament was preserved in the fact that no local power of constitutional amendment was included in the BNAA.  The logic of Parliamentary sovereignty thus shaped the Canadian constitution of 1867 through and through.  In its ‘foundation’, the system was highly unitary, with the exception that the Provinces did negotiate the general nature of the system that would be adopted (but not as equals), and these unitary and unequal foundations shaped the fundamentals of the BNAA in terms of its distribution of powers, representative institutions, and lack of an amending provision.

Now it is of course very true that constitutional politics in Canada has seen the country shift very dramatically in the direction of much greater autonomy for the Provinces.  This due to several factors: most notably, the pressures of linguistic and cultural diversity expressed in Francophone Quebec and calls for secession; the addition of several new Provinces to the federation by way of carefully negotiated agreements between the parties; and the unintended consequence that specifying the legislative powers of the provinces in the BNAA provided the Privy Council and Supreme Court with a textual ground upon which to limit expansionist interpretations of federal power.  But in the 1890s, when the Australian colonies were contemplating federation, the Canadian model appeared much too Imperial and centralist for politicians and a voting public that had become quite accustomed to exercising substantial powers of local self-government and constitutional self-determination (cf Colonial Laws Validity Act 1865).  The Australians wanted to follow the American model, and they did everything they could to reproduce an American-style federation subject only to the dictates of a continuing (but oftentimes grudging) willingness to acknowledge the authority of the British Parliament to legislate for Australia.  And it was in this respect that the referendum proved very significant indeed.

Following the American example, Australian politicians generally refused and resisted British encouragements towards federation until they themselves, as elected representatives of the colonies, thought that it was expedient and right to do so.  Accordingly, federation did not proceed in Australia until the Premiers of each colony supported it.  With this support, secured at a conference held in 1890, Enabling Acts were passed in each of the colonial Parliaments which set up a U.S.-style federal convention at which a draft Constitution Bill was to be debated, drafted and submitted to each of the colonial legislatures for their approval.  Such a convention, at which each colonial Parliament was necessarily equally represented, was duly held in 1891.  And the draft bill that emerged was inspired deeply by the American example.  The existence, powers and mutual independence of the constituent colony-states was taken as a presupposition of the whole system rather than as a product of it, and it was thought quite improper to make any provision at all for the governing institutions of the States within the federal constitution.  It was enough that the State constitutions should ‘continue’ as they had, subject only to the conferral of certain limited powers on the federal institutions of government.  Thus, the limited and specific distribution of legislative powers to the federal Parliament presupposed the original and plenary legislative powers of the colonial Parliaments, and these same Parliaments were also equally represented in the federal Senate.  Moreover, federal executive authority, although formally vested in the Crown, was to be exercised by a Governor-General acting on the advice of a Prime Minister and Cabinet responsible to a Parliament in which the Senate had equal power with the House of Representatives except in relation to financial bills; and even here the power of the Senate to refuse to pass supply was conceded, making the government potentially responsible to both houses (as famously occurred in 1975, leading to the controversial dismissal of the Whitlam government by Governor-General Kerr).  And, finally, again influenced by the American example, but also following the particular federating logic of the Australian system, provision was made for the amendment of the constitution by specially elected conventions held in each constituent state.

As it turned out, the Constitution Bill of 1891 did not secure the support of the colonial governments of the day, and federation languished for another four years, until a second convention was proposed in 1895.  This convention was duly held in 1897-8 and a second Constitution Bill was drafted, approved and finally enacted into law by the British Parliament in 1900.  What distinguished this constitution from the earlier draft was a slightly different federating logic.  This time it was thought important for the federal convention itself to be directly elected by the voters in each colony, and for the draft Constitution Bill prepared by the convention to be submitted to the colonial legislatures for their comments, subsequently revised at a second sitting of the convention, next submitted to the voters in referendums held in each colony and, only to the extent thus approved, finally sent to Westminster for enactment into law.  The principles embodied in this constitutive process dictated in the minds of the Constitution’s drafters that while the principles of unanimity and equality among the colony-states must be preserved, the principle of direct, popular, constituent authority should also be expressed throughout the system, particularly in the direct election of the Senate by the voters in each State, and in the provision for amendment of the Constitution by a referendum at which a majority of the voters in a majority of States would be needed, in addition to the support of a majority of voters in the nation as a whole.

In this, and in numerous other more specific ways, the Australian founders gave effect to a particular form of federating logic, similar to the American (and the Swiss) federations, and somewhat different from the Canadian.  In particular, through the referendum, the constitutional logic of the Australian federal system appealed to a kind of political sovereignty in the plurality of peoples of the constituent States as a means of asserting as much autochthony as was possible without altogether repudiating the authority of the British Parliament to legislate for Australia.  Indeed, one of the powers conferred upon the Australian Parliament, acting (significantly) with the consent of all of the State Parliaments concerned, was a ‘catch-all’ or ‘residuary’ capacity to exercise the legislative powers of the British Parliament with respect to Australia (see Australian Constitution, s.51 (xxxviii)).  As Andrew Inglis Clark, one of Australia’s leading constitutional lawyers, said at the time: ‘[the draftsmen] knew what they were doing.  …  They told the Convention what they were doing, and it agreed with them.  …  They did not hold anything back.  They faced the position that they were going in for absolute legislative independence for Australia as far as it could possibly exist consistent with the power of the Imperial Parliament to legislate for the whole Empire when it chose’.

In the 1980s, the constitutional ties between the British Parliament and Australia and Canada were decisively brought to an end.  But within Australia at least, opinions about precisely when constitutional independence effectively occurred, and what it has amounted to, have turned, in part, on views about the referendum – both as the means by which the federal Constitution was first approved by the voters, and as the only regular means by which it can formally and legitimately be amended in the future.  The statutory confirmation of Australia’s constitutional independence from the U.K. in 1986 was in fact secured in two separate Australia Acts, one enacted by the British Parliament following Australia’s request and consent pursuant to the Statute of Westminster, the other enacted by the Australian Parliament following the consent of the State legislatures pursuant to s. 51(xxxviii) of the Constitution.  Which of these statutes is the actually effective one, and by what authority the Australian Constitution is now binding, have been questions that have intrigued constitutional lawyers in Australia ever since, and in the ensuing discussions, the existence of the referendum has played a central conceptual and normative role.

It is exactly in this sense that the use of referendums in the United Kingdom has the potential to be of very great significance.  The referendum, even if only used as an ‘indicative’ device, has the capacity to be much more than a means by which the popular will is ascertained.  Whether it will in fact do so depends on numerous political and legal factors.  The referenda that have accompanied the current devolution arrangements have not led to such a conclusion, of course, but that is a function of the limited nature of devolution itself.  The proposition asserted by the Scottish Parliament that it has the power to define and hold a referendum of the Scottish people on the question of independence, if it is upheld, has the potential to be interpreted not simply as an appeal to public opinion, but as an appeal to an alternative basis of ‘sovereignty’, in much the same way that the referendum has functioned in the Australian debate.  For, as the Australian experience shows, even if independence (or devo-max, or a federal system) is formally established by an Act of the Parliament, the existence of a referendum initiated by local authority can be interpreted as the basis upon which the whole system rests, permanently limiting, or even displacing, the authority of the Parliament.  To be sure, such a fundamental realignment will only occur if it has fairly general support among the political and legal branches of government, but it can happen.  And the fact that the ultimate grounds of the Australian and Canadian federal systems are still debated shows that these things can take a long time to work themselves out.

In any case, many steps would need to be taken before anything approaching a federal state in the contemporary Australian or Canadian senses could be said to have developed in the U.K.  And yet, there are several respects in which the current scheme of devolution is not all that far removed from the Canadian system as it existed in the second half of the nineteenth century.  While the details of both systems were to an extent negotiated between the parties, each scheme rested (or still rests) on British parliamentary enactment.  The powers of the centre also appear in both instances to be original and plenary, while the powers of the regions are conferred from the ‘centre’, or from ‘above’.  And both systems have been asymmetrical in respect of the powers devolved and/or the degree of regional representation in the central legislature.  Even the development of the Sewel Convention and various constitutional concordats between Westminster and Holyrood recalls the way in which the fundamentals of the Canadian system have evolved through intergovernmental negotiations and constitutional agreements in a way and to extent that simply has not occurred in Australia.  Moreover, the legal capacity to make ‘constitutional’ changes to the scheme in both the U.K. and Canada rests, or once upon a time rested, with the British Parliament.

What nonetheless distinguishes the U.K. from mainstream federal systems is the extent of the powers devolved, the way in which those powers are conferred and the grounds upon which they are conferred.  This is because the logic of devolution is fundamentally different.  Devolution works as a grant from a superior legislature to formally subordinate ones.  The Scotland Act 1998 thus affirms the continuing legal authority of the Parliament at Westminster to legislate for Scotland generally and confers on the Scottish Parliament what are in principle subordinate and limited powers.  However, contrary to the scheme envisaged by the Scotland Act of 1978, the Act of 1998 confers general legislative power subject to a (long) list of specified reservations.  Such a scheme presents questions of interpretation that are intriguingly different from those presented by either the Canadian or Australian federal systems, because in Canada the powers of the Provinces are limited to specific topics in a manner similar to that envisaged for Scotland in 1978, whereas in Australia, like the United States, the powers of the States are treated as original and plenary and the powers of the federation specified and limited.  Interesting, the majority of the U.K. Supreme Court in Martin and Miller v Lord Advocate, following a line of Privy Council decisions arising out of Canada, Ireland, and India, seems to have adopted a ‘pith and substance’ theory of characterisation, an approach which tends to open up consideration of the scope of legislative power distributed to both levels of government, instead of focussing attention on whether, simply and literally, a particular enactment can be characterised as having a minimally sufficient connection with a conferred competence.  This marks the British and Canadian approaches off from those which have shaped Australian and American jurisprudence, where the courts have tended to interpret the specific and formally limited powers conferred upon the federation in the widest terms possible and have found sufficient connections to federal heads of power in a manner quite contrary to the framer’s intentions and expectations.  And yet, even these jurisdictions, there have been strong dissenting voices.  Similarly, the highly complex constitutional structure established by the devolution statutes is capable of radically different interpretations based, ultimately, on competing conceptions of the U.K., as the divergent judgments in Martin and Miller intriguingly demonstrate.  Indeed, whether a purposive, ‘pith and substance’ approach will continue to hold in relation to the Scottish Parliament’s asserted power to define and hold the referendum is an interesting question which approaches a kind of petitio principii.  This is because the requisite connection between a Scottish Act and a reserved matter depends on the purpose and practical effect of the law, and such purpose and effect, it seems from Martin and Miller, must in some sense be ‘legal’ and not merely ‘political’; but a Holyrood enactment which authorised a referendum on Scottish independence would only have the effect of legally authorising the holding of the referendum, and would have no legal effect on the existence or terms of the Union – that is, unless one accepts the theory that such a Holyrood-initiated referendum, if answered in the affirmative, would be the expression of the legally-effective sovereign will of the Scottish people to separate from the U.K.  Thus, absurdly, a Holyrood-initiated referendum is legal if it is of no legal effect, and illegal if it has a legal effect.  This is what happens when we play logical games with Austinian sovereignty!  The established federal systems have had to learn to be very careful with such volatile substances.  Most political scientists today say that sovereignty – of either the states or the union – is simply the wrong way to think about federalism.

This brings us, finally, to the identity of the U.K. Parliament as both ‘central’ legislature and as ‘sovereign’ legislature – a point of profound difference from the Canadian, let alone the Australian and American, systems.  This is not quite the same thing as the ‘West Lothian’ problem, although the fact that non-English representatives vote on matters concerning England within the Westminster Parliament – ie, the corollary of the fact that England has no legislature of its own – is one of the consequences of the dual nature of the Parliament and the asymmetrical structure of the U.K. system.  Interestingly, the two functions fused within the one institution (‘central’ legislature and ‘sovereign’ legislature) makes the U.K. look more like what the Germans are accustomed to calling a zweigliedrig or two-tier system, rather than a dreigliedrig or three-tier system, noting that the former conception entails a highly centralised federal system, in which the ‘states’ are subordinate to the ‘federal’ level of government, rather than both the ‘states’ and the ‘federation’ being equally subject to the order of the ‘federal state’ as a whole, as defined by the constitution.  It is not necessary to buy into the metaphysics of German state-theory to see the point.  For the U.K. to become more like a federal state in the dreigliedrig sense, a way to separate the ‘central’ legislature and ‘sovereignty’ functions would have to be found, and the formation of a written British Constitution, resting on the authority of the peoples of the U.K., is one way in which this might be achieved.

In drawing attention to all of this – about the four large questions that would have to be addressed if the United Kingdom were to become a federal state, with comments along the way about the nature of devolution and the question of the referendum – I am conscious that this is all a matter of very lively political debate, and it is not my intention to take sides (in this short piece, at least!).  But I suggest that the American, Canadian and Australian examples (and many other ‘federal’ models besides) can at least help us think through what U.K. devolution is, what it is not, and what it might become.  And because a similar analysis can be undertaken of the practice of many of the member states of the European Union to make ratification of European treaties subject to referendum approval (including the U.K., especially since the European Union Act), such comparisons may also shed light on what the troubled European Union is and what it also might yet become.

Nicholas Aroney is Professor of Constitutional Law, The University of Queensland and Visitor, Centre for European Legal Studies, Cambridge University.

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