Tag Archives: Scottish Referendum

by Constitutional Law Group | March 13, 2013 · 2:24 pm

Paul Reid: Independence, the referendum, the franchise and prisoners: stormy waters ahead?

The Scottish Parliament has started giving legislative effect to the Edinburgh Agreement that was signed in October 2012. The first measure to be brought before the Parliament earlier this week was the Scottish Independence Referendum (Franchise) Bill. It is a fairly short Bill, both in length and time: once enacted it will be automatically repealed on 1 January 2015 (the day by which a referendum must be held being 31 December 2014: Scotland Act 1998, sch.5, para.5A). The content of the Bill is now largely uncontroversial. The Edinburgh Agreement committed the Scottish Government to bring forward legislation to create a franchise for the referendum (para.4) and it was left to the Scottish Government to consult on extending the franchise to 16 and 17 year-olds and, if so minded, to legislate to enfranchise such individuals (para.5). The Bill now does that. Clause 2 sets out four conditions to be eligible to vote in the referendum: (i) the person is over the age of 16; (ii) the person is registered in the appropriate register; (iii) the person is not subject to any legal incapacity other than age; and (iv) the person is either a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the European Union (the latter being defined in Clause 12 of the Bill).

Much of the Bill is then concerned with creating a register of young voters. To be eligible to vote in the referendum a person must be on either the register of local government electors for any area in Scotland (cl.2(1)(b)(i)) or on the register of young voters (cl.2(1)(b)(ii)). The former register is already maintained under section 9(1)(b) of the Representation of the People Act 1983 (“the 1983 Act”). The latter is created by the Bill. It must be maintained by each registration officer for his area (cl.4) and it cannot be published (cl.9). Schedule 1 then applies, with suitable amendments, various statutory provisions to the new register. The Bill also confers a general power on the Scottish Ministers to make “such supplementary, incidental or consequential provision as they consider appropriate” to give full effect to any provision of the Bill (cl.11). At first blush that appears to confer fairly wide-ranging powers to the Scottish Ministers with such order being subject to the affirmative procedure in the Scottish Parliament.

All of that is important to the functioning of the referendum and to securing the Scottish Government’s stated aim to enfranchise 16 and 17 year-olds. When reading the Bill, however, the provision that caught my eye was clause 3. That provides: “A convicted person is legally incapable of voting in an independence referendum for the period during which the person is detained in a penal institution in pursuance of the sentence imposed on the person.” That looks very like a blanket ban on prisoners voting in the referendum. When I turned to the Explanatory Notes that accompany the Bill, at para.9, the Scottish Government state: “Section 3 provides that convicted prisoners who are detained in a penal institution are debarred from voting in an independence referendum. Prisoners held on remand who have not been convicted will be able to vote, although they will need to do so using a postal or proxy vote. This is identical to provision made, in relation to parliamentary and local government elections, by section 3 of the 1983 Act. It has been included in the Bill because the UK Parliament is considering proposals to alter section 3 of the 1983 Act and the Scottish Government would not wish any alteration to apply for the purposes of an independence referendum.” And the Policy Memorandum accompanying the Bill confirms this was a conscious choice (para.13): “The ECHR ruling (and human rights case law) does not relate to referendums, and convicted prisoners will not be able to vote in the referendum irrespective of whether UK electoral law is amended to extend the vote to prisoners for parliamentary elections before the referendum in 2014.”

As is now well-known, section 3(1) of the 1983 Act is incompatible with Article 3, Protocol 1 (“A3P1” to use the same now-common shorthand for its sister provision ‘A1P1’) of the ECHR, it cannot be read in such a way as to make it compatible and a declaration of incompatibility has been made (Smith v Scott 2007 SC 345, and numerous subsequent cases as more fully discussed by Colm O’Cinneide in his post on this blog on 4 June 2012 and Jeff King on 18 May 2011). The Westminster Parliament has thus far failed to amend the offending provision (beyond asking a committee to consider the options) and the domestic courts now recognise that it is outwith their power to push the matter further (Chester v Secretary of State for Justice [2010] EWCA Civ 1439 at [35] (Laws LJ)).

A3P1 provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” Clause 3 of the Bill must be compatible with A3P1 to be within the competence of the Scottish Parliament (s.29(2) of the Scotland Act 1998 (“SA”)). The key to A3P1 is usually seen to lie in its closing words: “…in the choice of the legislature”. At the time of the 1975 referendum on continued membership of the EEC a challenge was brought by a prisoner then serving a prison sentence. The Referendum Act 1975 defined the franchise by reference to those eligible to vote in parliamentary elections (s.1(3)), thus the disenfranchisement of prisoners contained in section 4 of the Representation of the People Act 1969 applied (that provision is in substantively the same terms as the current ban in s.3 of the 1983 Act). An application was made to the Commission claiming an infringement of, inter alia, A3P1 (X v United Kingdom, Application No.7096/75). The Commission ruled the application was inadmissible: “the obligations of the High Contracting Parties under [A3P1] are limited to the field of elections concerning the choice of the legislature. The British Referendum on EEC membership was not an election concerning the choice of the legislature: It was of a purely consultative character and there was no legal obligation to organise such a referendum.” Thus the EEC referendum of 1975 did not engage A3P1. The same conclusion was reached when a challenge was brought against Austria in relation to its referendum on accession to the European Union (Bader v Austria (1996) 22 EHRR CD213).

It appears, therefore, that the blanket disenfranchisement of prisoners for the independence referendum is within the competence of the Scottish Parliament because the referendum does not engage A3P1. That produces a bizarre result: a person has a fundamental human right to participate in the election of the Scottish Parliament but has no equivalent right to participate in a referendum on the possible independence of Scotland. That conclusion appears to invite challenge. And despite the language of A3P1, the matter does not appear as clear-cut as the Scottish Government may hope. According to its preamble, the rights enshrined within the ECHR are “are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend”. Elections are a “characteristic principle of democracy” (Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1 at para.48) but as the United Kingdom is evolving referendums are becoming an increasingly prominent and important part of our democracy (e.g. the European Union Act 2011, the Localism Act 2011 (invoked for the first time only last week), the 2011 referendum on the voting system for Westminster and the promise of an in/out referendum on EU membership). In other words, they too are becoming characteristic of our democracy. In the same case (at para.51) the Court recognised that A3P1 had evolved since being adopted. In Scoppola v Italy (2013) 56 EHRR 19 the Grand Chamber confirmed (at para.82) that “the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion and universal suffrage has become the basic principle.” There is no reason why that same presumption should not apply to a referendum. In Zdanoka v Latvia, when considering how A3P1 could be restricted, the Grand Chamber explained (at para.115(c)): “In examining compliance with Art.3 of Protocol No.1, the Court has focused mainly on two criteria: whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people.” Elsewhere in its jurisprudence the Court has recognised that Article 10 includes protections calling for the dissolution of the state (Incal v Turkey (2000) 29 EHRR 449) and Article 11 includes protection for political parties to advocate the same result through non-violent means (United Communist Party of Turkey and other v Turkey (1998) 26 EHRR 121).

It would be odd, to say the least, if the ECHR could be held to secure the right to promote the dissolution of a state through non-violent means but not the right to participate in a referendum to achieve that goal. Such a conclusion is not readily reconcilable with the desire to secure “an effective political democracy” and could be characterised as an arbitrary measure, lacking proportionality that interferes with the free expression of the opinion of the people (to borrow the language of the Grand Chamber in Zdanoka). Thus taking the ECHR as a whole, if it is to secure its fundamental aims, there appears to be a strong case for saying the Court should revisit the decisions in X v United Kingdom and Bader v Austria and allow A3P1 to continue its evolution and protect the right to participate in a referendum such as that to be held in Scotland in October 2014.

If the Court were to take that approach matters would then become very interesting for the Scottish Government. If clause 3 of the Bill is incompatible with the ECHR then the provision is “not law” (s.29 SA). That differs from the position that currently exists in the United Kingdom in relation to elections: although s.3 of the 1983 Act is incompatible with A3P1, it remains in force. Assuming none of the law officers refer clause 3 to the Supreme Court prior to Royal Assent (s.33 SA), and there appear to be strong political reasons to believe that to be a safe assumption, then any challenge would be by way of judicial review. There is currently no “leap-frog” appeal direct from the Outer House of the Court of Session (where any such challenge would necessarily begin) to the Supreme Court, only to the Inner House (sch.6, para.7 SA). Only the law officers could refer a challenge direct to the Supreme Court (sch.6, para.33 SA). One would expect such a reference to be necessary if any challenge is to be determined prior to the referendum taking place. But if, applying the Ullah principle, the Supreme Court consider that it is not for them to make such a change to the interpretation of the ECHR then a challenge would be destine for Strasbourg and pre-referendum (or pre-repeal (cf. cl.14)) determination of the issue would be unlikely.

Leaving aside the competence of the provision, and considering the merits of the policy, the reasons why blanket disenfranchisement of prisoners is unacceptable in elections apply with equal, if not more, force to a referendum. The competing arguments are best captured by Laws LJ in Chester:

“[33] Opponents of this view would say, with some force, that it is unconstitutional to regard disfranchisement as part of a criminal’s punishment: his punishment is strictly what the law prescribes as punishment; and that is his incarceration and nothing more. They might also question the reasoning in the last sentence, which in one breath treats the franchise as a privilege, and in the next as a right. Given those points, there is no principled basis on which any imprisoned criminal should be deprived of the vote unless, perhaps, his crime has somehow subverted the democratic process. It has to be remembered (though I doubt if it would be put this way in the course of political debate) that the vote of the stupid, dishonest, or malicious elector is worth as much as anyone else’s.

[34] But there are arguments the other way. It might in particular be said that a person convicted of very grave crime has so far distanced himself from the values of civil society that it would be a travesty of justice to allow him to participate in its governance. In such a case the prisoner’s disfranchisement is rightly regarded as an element in his punishment.”

Referendums are held on questions that are said to be so important that the elected representative should not take the decision without consulting the people. Whether A3P1 applies to referendums or not, if it is accepted (and I recognise that it is not currently accepted by almost all politicians) that some prisoners should have a vote in elections, at least that same group of prisoners should be entitled to vote in a referendum. It would be absurd if a certain group of prisoners were enfranchised so as to elect a legislature but not to vote in a referendum on a question which the legislature sought the views of the electorate. From the Explanatory Notes and Policy Memorandum it appears the Scottish Government sought to consciously avoid that very parity.

It is unfortunate that the Scottish Government seek to continue the blanket disenfranchisement of prisoners in relation to the referendum vote. But it is a decision that appears to invite a challenge that would provide an unwelcome distraction from the substance of the independence debate and cast a cloud over the legality of a key piece of the enabling legislation. It is not in anybody’s interests to see courts involved in the run-up to the vote in October 2014 yet clause 3, as currently drafted, appears to take that very risk.

Paul Reid is an Advocate with Ampersand Stable
and a part-time tutor of Public Law at the University of Edinburgh

Suggested citation: P. Reid, ’Independence, the referendum, the franchise and prisoners: stormy waters ahead?’ , UK Const. L. Blog (13th March 2013) (available at http://ukconstitutionallaw.org).

2 Comments

Filed under Scotland

Tagged as Prisoners' Right to Vote, Prisoners' Rights, Scottish Independence, Scottish Referendum

by Constitutional Law Group | January 31, 2013 · 6:35 pm

Jo Eric Khushal Murkens and Peter Jones: Salmond and Cameron order a dog’s dinner at the EU café

Countries that are used to referendums on constitutional matters use them sparingly. The UK has no such constitutional requirement, but faces the possibility of having to deal with two such referendums within the spate of a few years. The first referendum could see Scotland break away from the United Kingdom, the second could see the United Kingdom (which by then may or may not include Scotland) break away from the European Union.

The common issue to both Alex Salmond and David Cameron is political sovereignty. They both want more of it; Salmond wants to claim it from the UK, Cameron wants to claim it from the EU. In that narrow sense, they are both nationalists; Salmond a Scottish one, Cameron a British one. Both also want, they claim, to be good European citizens but have to contend with the problem that the European club they want to be members of has rules which conflict with their visions of the idealised club they imagine it should be. And the promotion of this idealised vision to their voters leads them both to political positions which are incoherent.

For the SNP which was, until the advent of devolution in 1999, a minority fringe party, the ‘Independence in Europe’ policy was never subjected to serious examination. It was not much more than a political slogan used in political debate to counter the separatist charge levelled by opponents. The most that was done to develop this policy was to locate sympathetic European luminaries who gave the SNP helpful quotes asserting that upon independence, Scotland would move seamlessly into EU membership. It became an article of SNP faith that Scotland would be warmly welcomed into the happy European family, effectively countering ‘separatist’ accusations. So cemented into SNP ideology is this belief that Nicola Sturgeon, deputy first minister, told the Scottish Parliament’s European and external relations committee in December 2007: ‘It is the clear view of the Scottish National Party and the [Scottish] government that Scotland would automatically be a member of the European Union upon independence.’

The automaticity proposition founders on the rather obvious point that while the people and territory of Scotland may already be in the EU, the Scottish government is not. And the Scottish government being in the EU requires its votes in the European Council and other entitlements to be written into EU treaties which can only be done with the unanimous consent of all other member states. This remains the case. The SNP, however, refuses to acknowledge this point because it raises the vision of Scotland being outside the EU and having to bang on the door begging to be allowed in out of the cold, bringing the separatist bogey back into play.

The battle against the separatist charge has had to be fought on another front – within the UK. Unionists have alleged that independence will mean that families with members on either side of the border will become fragmented, that they and commercial trade will have to negotiate border controls at Berwick and Gretna Green, that Scotland will lose access to popular BBC shows such as East Enders and Strictly Come Dancing and so on. To counter this, the SNP has devised a new strategy – that while the political union of the UK will come to an end, the social and civil union will continue and prosper. Thus families will be just as united and able to jointly celebrate such things as the Queen’s birthdays and anniversaries as she will still be the titular head of state in an independent Scotland.

Harsh economic realities, however, have forced the extension of this soft unionism into harder areas. The stresses and strains that the Euro currency is under have made it as unattractive to Scots as it is to the English. The SNP, because of the more prosaic reality that some 60 per cent of Scottish trade is with the rest of the UK and that it makes no sense to erect a currency barrier to that trade while tearing one down to benefit the 20 per cent of Scottish trade that is with the Eurozone, decided some time ago that an independent Scotland would stick with sterling as its currency until such time as there are economic benefits to joining the euro, which would only occur after a referendum.

The travails of the euro and the proposed deeper integration remedies, however, demonstrate that such a currency union would erode Scotland’s fiscal independence. Proposed tax changes and government budgets would have to come under the tutelage of the, with independence, foreign institutions of the UK Treasury and the Bank of England. Various unionist politicians, such as Treasury chief secretary Danny Alexander and former chancellor Alistair Darling, have argued either that the UK government simply could not countenance such an arrangement, or that the arrangements would be so restrictive as to nullify the claimed gains from political independence.

The SNP’s counter to this has been to assert a rather crude truth, that as sterling is a fully tradeable currency, the UK cannot stop Scotland from unilaterally adopting the pound. This, however, looks unsatisfactory from the point of view of independence. It leaves monetary policy, the determination of interest rates, and the operation of quantitative easing in the Bank of England’s hands. The SNP also claim, rather more vaguely, that the fiscal stability pact necessary to a currency union need not be so restrictive when, in fact, the lesson of EU struggles to stabilise the euro point to tighter rather than looser centralised fiscal controls.

This puts Salmond in the odd position of being, simultaneously, a Scottish nationalist, a European federalist, and a British unionist. He wants Scotland to have untrammelled use of its own credit card to dine at the same time in the British and European restaurants, but refuses the table d’hôte menu and insists on picking from two à la carte menus which neither chefs seem willing to offer.

Cameron is in only a slightly less strange place. He wants to trade heavily on his British nationalism with his domestic audience but waves his European unionism when on the other side of the English Channel. Both audiences are, however, able to see what is being presented to the other and thus he runs the high risk of undermining his message to one by his contrary calls to the other.

In his speech on the EU on 23 January 2013, David Cameron set out his intention to renegotiate the UK’s relationship with the EU and put the terms of that changed membership to the British people in an in/out referendum by the end of 2017, subject to the Conservatives winning an outright majority in the general elections in 2015. His speech received global attention and a mixture of praise (‘agree that the EU needs to be reformed’) and criticism (‘disagree with the language of unilateral negotiations and the threat of withdrawal’). Much of the commentary, indeed much of the speech itself, is based on the dubious premise that the UK is a major player in the European Union.

On one level, the UK undoubtedly sits at the top table: it has the third largest population and the third largest economy in the EU. However, the UK already has differently negotiated relationship with the EU than the other member states. It gets a significant rebate on its financial contributions to the EU budget; it has external borders with other EU member states; it has its own currency; it did not sign the fiscal stability treaty which requires budget prudence and introduces a debt brake for the 17 Eurozone states; and it will not (unlike 11 Eurozone states) impose a financial transaction tax which is designed to discourage speculative trading. Moreover, the UK limited the justiciability of the Charter of Fundamental Rights and the way in which it may be interpreted. And its red-lines approach at the IGC in 2007 means that the UK can itself decide (by 31 May 2014) whether to implement all the European measures on police and justice (which will be subject to the jurisdiction of the CJEU) or whether to opt out of all the measures and then adopt individual measures on an ad hoc basis (subject to the consent of the other member states). (Although how exactly the latter option ‘cuts red tape’ is anyone’s guess).

If this isn’t à la carte, then what is? What more does Cameron want to renegotiate? No one knows, and no one has yet produced a checklist, although the government will be working on one until the autumn of 2014. For the time being, the Working Time Directive, the European Arrest Warrant, and a better deal on fisheries keep coming up in debate. Is it realistic to argue that powers in those areas can be returned to the member states? The practical options are the following. Either the UK tries to tackle the matter from above by reducing the law-making powers of the EU institutions (that option would require a treaty change and the unanimous agreement of the other member state which is, currently, unrealistic). Or the UK tries to negotiate a better ‘deal’ for itself (e.g. through opt outs and protocols that are attached to the Treaty). But is it credible that the other member states would grant the UK special treatment when every member state is subject to aspects of EU law of which it disapproves and would dearly like to roll back the frontiers of European law and policy? So neither option seems workable.

On a more fundamental level it seems baffling that British Euroscepticism would appear to hinge on a handful of powers that need to be ‘repatriated’. It doesn’t, and it is ludicrous to suggest that the Europhobes in the Conservative party will be placated if junior doctors work longer, and UK nationals who are wanted on charges abroad cannot be extradited (whereas, of course, UK nationals who have committed a crime in the UK but fled to another EU member state will immediately be brought back home). On fishing, where the real issue is depleted stocks through overfishing, the Commission is already transferring decision-making powers to the member states in an attempt to decentralise fishing policy and tailor it to local conditions. As Douglas Alexander put it: ‘The gap between the minimum the Tories will demand and the maximum the EU could give is unbridgeable’. These are not the fundamental issues, and any self-respecting Europhobe will not rest until the UK has exited the Union and re-attached itself to the single market like a dingy to a supertanker.

So if Cameron’s speech does not stand up to scrutiny from a European perspective, maybe its intended target was closer to home. Almost all foreign and domestic observers noted that the speech was driven primarily by domestic party politicking (UKIP) and internecine party struggles (Bill Cash). Cameron is trying to unify a fractured party in the run-up to the general elections in 2015, and UKIP and the Tory backbenchers forced his hand. But even domestically Cameron may have dealt himself a bad hand. The offer of a referendum on renegotiated membership after the next general election is subject to two known unknowns: i) the outcome of the 2015 elections; ii) the outcome of the negotiations. It is presently far from clear whether he will be successful with respect to either or both.

Until then Cameron will be seeking, not so much nouvelle cuisine as cuisine impossible, just like Salmond: untrammelled UK access to the European single market restaurant, refusal of the table d’hôte menu and insistence on the à la carte menu which is not on offer. And then he will have the nerve to ask for a rebate (i.e. other member states subsidising his dining) when presented with the bill.

Conclusion

Cameron’s policy on the EU is just as incoherent as the SNP’s policy on continuing EU membership on current terms. Cameron assumes he will win the next election, just as Alex Salmond assumes that Scotland will automatically be an EU member state. Cameron claims that he can walk into the room and negotiate a new deal (‘I am an optimist, not a pessimist’, Cameron responded to a question on this issue by a journalist after his speech). Salmond claims that he can secure Scotland’s place in Europe on current terms, i.e. by inheriting the UK’s opt outs on the Euro currency and the Schengen free travel area, which is illusory.

Moreover, a referendum (if one is to be had) needs to set out two clear choices before the referendum. The in/out referendum on the EU or the Yes/No referendums on Scottish independence do not offer sufficient alternatives. What will come after EU membership? A free trade (all pay and no say) agreement with the EU like Norway? The Commonwealth? The USA? NAFTA? The global market? Splendid isolation?

Likewise, Salmond promises continuity when any EU lawyer, politician, and bureaucrat will tell him that there is no automatic right to membership of the European Union. So, what if membership is not automatic? Will Scotland stay outside the EU? Have its application fast-tracked? Join the queue of applicant states? He also promises currency continuity within a skeletonised British union, when there are an array of economists and Treasury politicians past and present saying it either will not work or will render the gaining of political independence pointless. So what will happen then? Freelance use of the pound? Enforced joining of the euro? Invention of a Scottish currency?

The à la carte menus offered by both are, in reality, dogs’ dinner.

Jo Eric Khushal Murkens, Department of Law, London School of Economics and Political Science

Peter Jones is a freelance journalist, writing on Scottish current affairs for The Economist, the Times and The Scotsman. He is also, with Jo Murkens, a co-author of Scottish Independence: A Practical Guide, EUP 2001.

Suggested citation: J. E. K. Murkens and P. Jones: ‘Salmond and Cameron order a dog’s dinner at the EU café’ Const. L. Blog (31st January 2013) (available at http://ukconstitutionallaw.org)

2 Comments

Filed under European Union, Scotland

Tagged as European Union, Referendum on the European Union, Referendums, Scottish Independence, Scottish Referendum

by Constitutional Law Group | October 11, 2012 · 7:42 am

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.

1 Comment

Filed under Scotland

Tagged as Referendums, Scotland, Scottish Independence, Scottish Referendum

by Constitutional Law Group | March 21, 2012 · 6:03 pm

Nick Barber: The Virtues of Advisory Referendums

The question of the capacity of the Scottish Parliament to hold an advisory referendum is one that has exercised contributors to this blog. The dispute turns on a piece of statutory interpretation. The law in question is found in section 29 of the Scotland Act 1998. This states, in brief, that an Act of the Scottish Parliament is not law if it ‘relates to reserved matters’ (s.29(2)(b)), and this question must be answered by considering ‘the purpose of the provision, having regard (amongst other things) to its effect in all the circumstances’ (s.29(3)). Turning to Schedule 5, we find that ‘the Union of the Kingdoms of Scotland and England’ falls within these reserved matters.

Those arguing that the Scottish Parliament does possess a power to hold a referendum contend that the referendum is advisory, and consequently would not ‘relate’ to the Union as the Union would continue, unaltered, after the vote. Those arguing the contrary view contend that the any referendum would, nevertheless, ‘relate’ to the Union as the future of the Union is the subject-matter of the vote.

This post does not revisit these textual questions, but instead reflects on the consequences for the Scottish Parliament if the Supreme Court found that it lacked the power to hold referendums of this type. If the Scottish Parliament were denied the power to hold advisory referendums on matters that are reserved to Westminster, quite a large number of questions would be excluded from its jurisdiction. To take a few examples from Schedule 5, a narrow interpretation of section 29 would bar advisory referendums on:

the state funding of political parties in Scotland;

the stationing of American troops on Scottish soil;

the legalisation of cannabis in Scotland;

the sale of hard-core pornography in Scotland;

the legality of animal experimentation in Scotland;

the construction of ‘mega-casinos’ in Scottish cities;

the building of nuclear power stations in Scotland;

the stationing of nuclear weapons on Scottish soil;

whether Scotland should be in the same time-zone as England.

One factor that the courts should consider when choosing between a broad and narrow reading of s.29 is whether there is any advantage in allowing the Scottish Parliament to hold referendums of this type. If such referendums are useful, if they are a potentially valuable part of the devolution framework, this is an argument in favour of the broader interpretation. If not, this is a consideration that weighs for a narrower reading.

Whilst the Scottish Parliament is a body of limited jurisdiction, and unable to unilaterally legislate on reserved matters, it does not follow that it is constitutionally barred from having an opinion on these matters, or even campaigning within the structures of the Union on these topics. If, for example, MSPs were particularly concerned with the problems that arise from the criminalisation of cannabis in Scottish cities, it is hard to argue that it would be inappropriate for them to debate this question, order an inquiry into the issues raised, or even pass a resolution expressing their concerns. Just because a matter is reserved does not mean that the Scottish Parliament cannot have its say. The advisory referendum should be understood in this context. It is a tool through which the Scottish Parliament can engage in a debate within the Union. It enables the Scottish Parliament to ascertain the strength of feeling amongst the people of Scotland on an issue, and, by expressing that strength of feeling, place pressure on Westminster. So, an advisory referendum on the legalisation of cannabis that showed support from the people of Scotland for a change in the law would provide a powerful card that could later be played in negotiations with Westminster.

Why should the legal structure of devolution allow an advisory referendum whilst denying the Scottish Parliament to alter the law in these areas? Perhaps because they are areas in which any change – even a change that applied to Scotland but not the rest of the United Kingdom – would have implications beyond the borders of Scotland. If Scotland legalised cannabis it would affect the availability of cannabis in England. If Scotland banned nuclear weapons on its soil, it would change the configuration of the defence of the United Kingdom. There are, then, good reasons why Scotland should be able to undertake ‘advisory’ referendums on these matters, but not enabled to decide them unilaterally. The outcome of the subsequent negotiations with Westminster might not track the wishes expressed in the Scottish vote: the interests of all the peoples of the Union need to be considered. Perhaps the end result of a referendum on cannabis would not be full decriminalisation. Perhaps the product of the subsequent negotiation with Westminster would be that the drug could be prescribed in Scotland by doctors, or sold only by state bodies – or any one of a number of other compromise positions.

What about the arguments against giving the Scottish Parliament this power? A case could be made that this is a waste of public resources, that referendums are expensive and time-consuming, and that the Scottish Parliament has other, cheaper, ways of making its feelings felt. But these are considerations for the Scottish people, not for judges. Using the constitutional device of a referendum brings with it two risks for the Scottish Parliament. First, there is always the danger that the referendum will be lost, or that turn out will be so small that the point of the referendum is defeated. A vote on the legalisation of cannabis in which a majority voted to keep the current prohibition in place would end the debate on the topic, at least for a time. And if only a tiny portion of the electorate participated, a positive result would give the Scottish government very little leverage in Westminster: this would be a card of very low value. Finally, of course, the Scottish Parliament is an elected body. If the Scottish electorate decides that there are too many referendums being called, it can always vote out those who pushed for them.

Addendum: Aileen McHarg has told me of an interesting parallel in local government law that provides a good illustration of the utility of advisory referendums. In 1994 Strathclyde Regional Council held a referendum over the privatization of Scottish water authorities. The question of the privatization of water companies fell beyond the scope of the local authority; this was a decision for the national government. There was a 71.5% turn out of which 97.2% voted against privatization – and water privatization was abandoned in Scotland. The local authority was not empowered to decide the issue, but did have the power to use a referendum to articulate the views of its constituents and, as a result, to affect the decision of central government.

Andrew Le Sueur’s important recent post on the widening powers of local authorities might also be worth considering in this context. The Localism Act 2011 accords local authorities very broad powers: these institutions can do anything that ‘individuals generally may do’. This would seem to encompass holding referendums. The restrictions of the Scotland Act do not – of course – apply to local authorities. If a narrow reading of the Scotland Act were adopted by the Supreme Court, would this mean that Oxfordshire County Council could hold an advisory referendum on Scottish independence, but the Scottish Parliament could not? This does not appear a very attractive conclusion.

Nick Barber is a Fellow of Trinity College, Oxford.

1 Comment

Filed under Devolution, Scotland, UK government

Tagged as Scottish Independence, Scottish Referendum

by Constitutional Law Group | February 17, 2012 · 2:58 pm

House of Lords Select Committee on the Constitution Produces Report on Legality of Scottish Referendum.

The House of Lords Select Committee on the Constitution has published a report on the legal issues raised by the proposed referendum on Scottish Independence. One of the issues they discuss is the capacity of the Scottish Parliament to legislate for a referendum without the support of the Westminster Parliament. They conclude:

“An authoritative determination of the legal issues analysed in this chapter could be given only by the courts. Having considered the matter in detail, we are of the clear view that the legal analysis offered by the UK Government is correct. Without amendment, the Scotland Act 1998 confers no legislative power on the Scottish Parliament to pass an Act purporting to authorise a referendum about independence.” [Para. 30]

The Committee has, consequently, broadly followed the view expressed by Adam Tomkins, set out in a post on this blog. The contrary argument – holding that such a referendum would be lawful – was advanced by a number of academics in a group post, which can also be read on this blog.

Grégoire Webber: On Independence for Scotland: An Overview Of Canadian Experience

Canadian constitutional experience with federal-provincial relations and a bill of rights has provided a point of comparison for the United Kingdom’s devolution measures and Human Rights Act. Today, with the question of Scotland’s independence animating constitutional debates, Canadian constitutional experience seems, once more, to offer a point of comparison. This post offers an overview of Canadian experience with the constitutional events surrounding the question of Quebec’s independence.

1 – Two referenda, two questions

The Parti Québécois (PQ) elected a majority of members to the Quebec National Assembly for the first time in 1976. Before the end of its first mandate, the PQ government orchestrated a referendum on Premier René Lévesque’s idea of ‘sovereignty association’. The following question was put to voters:

“The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad — in other words, sovereignty — and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?”

The ‘Yes’ and ‘No’ camps were lead, respectively, by Premier Lévesque and the Prime Minister of Canada, Pierre Elliott Trudeau, both Quebecers. On this occasion, the people of Quebec voted 59.6% against and 40.4% for giving the Government of Quebec a mandate to negotiate a new political settlement with the rest of Canada. Prime Minister Trudeau had promised that a ‘No’ vote would not be a vote for the status quo, but for a new constitutional settlement.

Despite losing the referendum, Premier Lévesque secured a second majority in 1981, setting the stage for another Trudeau-Lévesque faceoff during the constitutional negotiations. Trudeau’s promise of a new constitutional settlement was realised with the Canada Act 1982 (UK), the schedules to which contain Canada’s Constitution Act 1982. Of Canada’s ten provinces, only one opposed the new settlement: Quebec.

In 1987 and in 1992, attempts were made to renegotiate Canada’s constitution, this time with Quebec’s assent. Both failed. At the ensuing provincial general election, the PQ returned to power and, the following year, a second referendum was held on the following question:

“Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?”

The June 1995 agreement was not between the Government of Canada and the Government of Quebec, but rather between political parties sharing the ends of the PQ. The results of this referendum were much closer: 50.6% voted against and 49.4% voted for the proposition in the question. The Prime Minister of Canada, Jean Chrétien, did not take the ‘No’ vote as a signal for renewed constitutional negotiations. A different strategy was adopted.

2 – Quebec Secession Reference (1998)

In 1996, the Government of Canada referred three questions to the Supreme Court of Canada, the constitutionally most important of which asked:

‘Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?’

In a unanimous opinion, the Court concluded that the secession of Quebec from Canada could lawfully come about only by way of a constitutional amendment. It prefaced its conclusion by outlining four ‘unwritten principles’ animating Canada’s constitutional arrangements: democracy, federalism, the rule of law, and protection of minorities and emphasised the interaction of the referendum result (democracy), the place of the other confederation partners (federalism), and lawfulness and content of ensuring negotiations (rule of law, protection of minorities).

For a referendum to ‘confer legitimacy on the efforts of the government of Quebec to initiate the Constitution’s amendment process in order to secede by constitutional means’, both the question and the result must be ‘clear’ and ‘free of ambiguity’ (para. 87). In the event of ‘a clear majority on a clear question in favour of secession’, there would arise ‘a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire’ (para. 88). The Court outlined that it would have ‘no supervisory role over the political aspects of constitutional negotiations’ and that what constitutes a clear majority on a clear question would be ‘subject only to political evaluation’ (para. 100).

3 – Clarity Act

The year following the Supreme Court’s opinion, the Government of Canada tabled and, in 2000, Parliament enacted An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, colloquially known as the Clarity Act.

In its preamble, the Act declares that the government of any province is ‘entitled to consult its population by referendum on any issue and is entitled to formulate the wording of its referendum question’. However, for a referendum to trigger a corresponding duty of constitutional negotiation on the Government of Canada, the Act outlines the conditions according to which the House of Commons will mandate the government to enter into such negotiations.

In s. 1, the Act requires the Commons to consider and, by resolution, ‘set out its determination on whether the [referendum] question is clear’. In its evaluation, the Commons ‘shall consider whether the question would result in a clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state’. Echoing the referendum questions of 1980 and 1995, s. 1(4) of the Act specifies further:

”a clear expression of the will of the population of a province that the province cease to be part of Canada could not result from

(a) a referendum question that merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population of that province on whether the province should cease to be part of Canada; or

(b) a referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada.

If the Commons resolves that the question is not clear, the ‘Government of Canada shall not enter into negotiations.”

In s. 2, the Act provides that if the House of Commons has resolved that a referendum question is clear, it shall ‘consider and, by resolution, set out its determination on whether, in the circumstances, there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada’. To this end, the Commons must take into account ‘the size of the majority of valid votes cast in favour of the secessionist option’ and ‘the percentage of eligible voters voting in the referendum’. Unless the Commons resolves that ‘there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada’, the Government of Canada ‘shall not enter into negotiations’.

The Quebec National Assembly responded to the Clarity Act within days of its enactment. The Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec state affirms, in its preamble, that the Clarity Act ‘call[s] into question the legitimacy, integrity and efficient operation of [Quebec’s] national democratic institutions’ and, in turn, affirms, at ss. 2 and 3, that the Québec people ‘has the inalienable right to freely decide the political regime and legal status of Québec’ and, ‘acting through its own political institutions, shall determine alone the mode of exercise of its right to choose the political regime and legal status of Québec’. It specifies, at s. 4, that the ‘winning option’ in a referendum requires no more than ‘50% of the valid votes cast plus one’ and affirms, at s. 13, that ‘[n]o other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraint on the democratic will of the Québec people to determine its own future’.

4 – On Scotland

What might Canadian experience suggest for the question of Scotland’s independence? Doubtless, many in Westminster, Whitehall, and Holyrood have asked themselves the same question and come away with no settled answers, but perhaps with different pathways for asking certain questions, among them:

What might the referendum question reveal about the ambiguities over the ends sought? In Canada, the only unambiguous appeals to the secession of Quebec are to be found in the questions put to the Supreme Court of Canada and the wording of the Clarity Act. What might that suggest about the commitment of Quebec to Canada? In turn, what might the First Minister’s call to include ‘devo-max’ on the referendum ballot suggest about where (he thinks) the Scottish are willing to go?

What might the key words of the debate suggest about the future of Union-Scotland relations? In Quebec, the key word has been ‘sovereignty’; in Scotland, ‘independence’ appears to be the favoured term. Why might the SNP resist equating ‘independence’ with ‘separation’?

What is the role of the UK government and Parliament in evaluating the referendum question? Even if the question is ultimately for Scotland to set, what is lost in the absence of agreement from the Prime Minister and the Commons respecting the question(s) put to the Scottish?

What role might the courts, and ultimately, the UK Supreme Court play in evaluating the lawfulness of a referendum, its result, and the possibly ensuing negotiations? The Supreme Court of Canada’s opinion on the legality of secession clarified the presumptive, but not determinative place of a referendum and, also, the role of the courts in supervising the political process.

Which side in the referendum debate will be able to claim a mandate for change? Whilst a referendum (and those who promote it) puts an option for change to voters, those arguing against that option may promise change of a different kind, as Prime Minister Cameron now proposes.

These are but some of the pathways intimated by Canadian experience. Doubtless, the United Kingdom’s present experience will, in turn, suggest different reflections in Canada.

Grégoire Webber is Lecturer in Law at the London School of Economics and Political Science.

2 Comments

Filed under Comparative law, Devolution, Scotland

Tagged as Canada, Quebec, Referendums, Scottish Independence, Scottish Referendum

by Constitutional Law Group | January 31, 2012 · 4:21 pm

Gavin Anderson et al: The Independence Referendum, Legality and the Contested Constitution: Widening the Debate

Two weeks ago, the UK Government published its consultation document on Scotland’s Constitutional Future, in which it stated its view that the Scottish Parliament has no power to enact legislation authorising a referendum on the question whether Scotland should become independent from the United Kingdom. Last week, the Scottish Government published its own consultation paper, Your Scotland, Your Referendum, claiming that the Scottish Parliament can validly authorise the asking of at least some questions about independence, although the document is ambiguous as to whether the Scottish Government believes that it has power to ask its preferred referendum question, namely ‘Do you agree that Scotland should become an independent country?’.

The legality or otherwise of an independence referendum is, from one perspective, a narrow point: a matter merely of process, which could be authoritatively resolved by an express grant of power from either the UK Government (under s.30 of the Scotland Act 1998) or the UK Parliament (under primary legislation), and a distraction from the more important issues of where a referendum might be taking both Scotland and the rest of the UK.

From another perspective, though, the legality issue is crucial because the answer to the question tells us a great deal about where we are currently in constitutional terms, and hence about how great or small a constitutional leap we might be about to take. Furthermore, since the recognition claims and aspirations that are so central to constitutional politics are often as much concerned with who is entitled to set or influence the agenda of debate as they are about the outcome of debate, we cannot dismiss the question of background legal authority as of merely academic interest. Accordingly, the legality issue remains important even if it becomes practically irrelevant, and it has significance not only for Scotland, but for our understanding of the nature of the UK constitution as a whole.

Contrary to the views of the UK Government and a number of influential commentators, on this blog and elsewhere, we believe that the legality of a referendum Bill passed under the Scotland Act as it currently stands is a more open question than has been generally acknowledged. In other words, we believe that a plausible case can be made that such a Bill would be lawful, and believe it is important that these arguments are clearly set out. The case for legality rests on a particular reading both of the purposes of a referendum Bill, and of the purposes of the Scotland Act.

The UK Government’s argument that a referendum Bill would be unlawful rests on two premises: first, that section 29(2)(b) of the Scotland Act, which provides that an Act of the Scottish Parliament is outwith competence if it “relates to” a reserved matter, is to be interpreted literally; and, second, that the purpose of a referendum Bill, having regard to its effect in all the circumstances (s.29(3)), would be to dissolve the Union. Since the Union is a matter reserved to the UK Parliament, the Bill would, they argue, therefore relate to a reserved matter and would be unlawful.

Both premises of this argument are contestable. Taking the second premise first, there are a number of difficulties with the UK Government’s interpretation of the purpose of a referendum Bill. In the first place, they rely on a broad interpretation of its purpose, effectively treating the undoubted political aspiration of the SNP government, as promoters of the Bill, to bring about an end to the Union, as the purpose of the legislation. By contrast, the purpose as stated in the long title of the draft Bill published by the Scottish Government is simply to seek “the views of people in Scotland on a proposal about the way Scotland is governed.” In taking a broader rather than a narrower view of the legislative purpose, the UK Government seems to be relying on the approach adopted by the Supreme Court in Martin and Miller v HM Advocate [2010] UKSC 10, in which Lord Hope said:

“One of the circumstances to which it is proper to have regard is the situation before the provision was enacted, which it was designed to address. Reports to and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, the policy memorandum that accompanied it and statements by Ministers during the proceedings in the Scottish Parliament may all be taken into account in this assessment.”

It is, however, important to note that the reason for adopting a broad approach to purpose in Martin and Miller was not to hold that the legislation in question was ultra vires, but in fact to hold that it was intra vires. Arguably, this approach would not be appropriate where its effect would be to render legislation beyond competence. This is supported by s.101(2) of the Scotland Act, which instructs the courts that, where possible, they should interpret Bills as narrowly as is required to allow them to be upheld.

A second objection to the UK Government’s broad reading of the purpose of a referendum Bill is that it conflates the intention of the Scottish Government with the intention of the Scottish Parliament. It is perfectly conceivable that some MSPs may vote for a referendum, not because they support independence, but rather because they expect that the vote will be lost and that the issue of independence will thereby be removed from the political agenda, at least for the foreseeable future. Indeed, this seems to be the UK government’s own reason for wishing a referendum to take place.

Finally, it is a curiosity of the UK Government’s position that, in assessing the effect of a referendum, they seem to be assuming that the yes campaign will win. Hence it will confer a political mandate to negotiate terms for independence and will lead inexorably to the dissolution of the Union. Should the outcome be different, though, the effect, it would seem, would be to reinforce the Union. If the key test of legality is practical effect, would the referendum legislation in that case be lawful? Of course, it would be absurd if the legality of a referendum Bill were to depend on outcome of the referendum, not least because the outcome is unknowable at the point at which any challenge is likely to be heard. This then points to the true meaning of the ‘effect’ of a Bill as being its legal effect, rather than its practical effect. Since the legal effect of a referendum Bill is indisputably simply to seek the views of people in Scotland – and any further effect is both non-binding and speculative – this again points to the narrower, consultative, interpretation of the legislative purpose as being the correct one. It should be added that, if this is the correct approach to the identification of the Bill’s purpose, then the precise wording of the referendum question would appear to be a red herring; the legal effect of the referendum is not altered by asking an indirect rather than a direct question about whether Scotland should become independent.

However, even if the purpose of the Bill is correctly characterised as consultative, the second limb of the UK Government’s argument remains to be addressed. Would a consultative Bill nevertheless ‘relate to’ the Union? Literally, of course, it would. However, the weight of authority (see Tarun Khaitan’s helpful post on this issue) suggests that devolution statutes, as constitutional measures, are not to be interpreted literally, but rather “generously and purposively” (Robinson v Secretary of State for Northern Ireland [2002] UKHL 32). In other words, the statutory phrase “relates to a reserved matter” is itself capable of expansive or restrictive interpretation. Arguably, in order to give effect to the purpose of the Scotland Act, it should therefore be read as requiring those challenging the competence of a Bill to show more than it merely “has something to do with” a reserved matter, in this case the Union.

What, then, is the purpose of the Scotland Act? Here we come to the nub of the difficulty of predicting how the courts would respond to a challenge to the legality of a referendum Bill: the contested, and potentially evolving, nature of (a) the purpose of devolution; (b) the nature of the UK constitution; and (c) the impact of devolution upon the UK constitution. There are at least three possibilities. One is to regard devolution as a mere delegation of authority from the UK Parliament. On this view, the Scottish Parliament is politically and legally subordinate to Westminster, and the latter remains the sole font of sovereign authority within the state (the unitary state narrative). The second possibility is that devolution represents a move towards a quasi-federal constitution. On this view, the Scottish Parliament is the political equal of Westminster, within its sphere of competence, but it is bound by the norms of the UK constitution as a whole (the federalist narrative). The third view sees devolution as a renegotiation of the terms of Union on the part of the sovereign Scottish people, and hence sees the Scottish Parliament as a legitimate representative of the Scottish people in the course of any further renegotiation in which the interests of the Union as a whole and of its various parts are put at issue (the union state narrative).

Both the unitary state and federalist understandings of the purposes of devolution might suggest that questions about the future constitutional position of Scotland should indeed be reserved to the UK Parliament. However, the union state narrative – strongly endorsed by the Scottish Constitutional Convention prior to devolution – suggests a much broader role for the Scottish Parliament in debating, and facilitating public deliberation on, questions about the future governance of Scotland, albeit the Scottish Parliament does not have power to unilaterally secede from the Union or to enlarge its own powers. On this view of the purposes of the Scotland Act, then, it may be argued that a consultative referendum would be a lawful exercise of the Scottish Parliament’s legislative powers.

Which of these constitutional narratives would the courts – and particularly the Supreme Court – endorse? The unitary state narrative would appear to be ruled out by the recent decision in Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46, which rejected the argument that, at least for the purposes of judicial review at common law, the Scottish Parliament is to be understood as a subordinate legislature. More generally, judicial dicta and extra-curial writings questioning the continued accuracy of the traditional understanding of Westminster’s sovereignty also suggest that a crude, unitary account of the UK constitution would not be accepted.

The thickening sense of UK constitutional law that this brings in its wake might point to a quasi-federal account of the UK constitution as being most likely to be endorsed. However, the union-state narrative also gains support, not only from the political background to devolution, but also from the decision in MacCormick v Lord Advocate 1953 SC 396 and subsequent cases, to the effect that the fundamental principles of Scots constitutional law are not necessarily the same as those of English constitutional law, a view apparently endorsed by Lord Hope in R (Jackson) v Attorney-General [2006] 1 AC 262. The choice between these two options might turn in the end on whether the Supreme Court sees itself as a court interpreting and upholding a single and unified corpus of constitutional law, or as one recognising and seeking to reconcile the somewhat different constitutional traditions of the various jurisdictions of the UK.

The questions ultimately at stake in any challenge to the legality of a referendum Bill are, then, large ones indeed, and such a case would have the potential to be a defining moment in Scots – and UK – constitutional law. Should we, as constitutional lawyers, therefore welcome the prospect of a legal challenge? Does this have the potential to be our Reference re the Secession of Quebec, laying down authoritative principles as to how questions about Scotland’s – and the UK’s – constitutional future is to be determined? Or is the better analogy Bush v Gore? In other words, would any decision about what the law is on this point inevitably be seen as being tainted by the judges’ views as to what the law ought to be? The fraught political context in which such a challenge would be heard, as well as the widely publicised antipathy to the Supreme Court within the Scottish government, suggests that the latter analogy is more apt.

The risk to the authority of the courts – a risk which, it should be noted, would not be avoided by taking refuge in a literal interpretation of the Scotland Act – therefore suggests that the UK and Scottish Governments would indeed be wiser to agree on an express transfer of powers. Nevertheless, because of the fundamental nature of the issues at stake, and the inherent contestability of constitutional law questions of this kind, it is important that any such agreement should be not taken as an unequivocal endorsement of the view that Westminster alone is entitled to authorise a referendum on the constitutional future of any part of the UK.

Gavin Anderson, Senior Lecturer, University of Glasgow

Christine Bell, Professor of Constitutional Law, University of Edinburgh

Sarah Craig, Lecturer, University of Glasgow

Aileen McHarg, Senior Lecturer in Public Law, University of Glasgow

Tom Mullen, Professor of Law, University of Glasgow

Stephen Tierney, Professor of Constitutional Theory, University of Edinburgh

Neil Walker, Regius Professor of Public Law and the Law of Nature and Nations, University of Edinburgh

Editor’s update: This post was the subject of a report in The Herald. The report can be read here:

http://www.heraldscotland.com/politics/political-news/holyrood-has-authority-over-referendum.1328929454

14 Comments

Filed under Scotland

Tagged as Scotland, Scottish Independence, Scottish Referendum

by Constitutional Law Group | January 12, 2012 · 10:35 pm

Adam Tomkins: The Scottish Parliament and the Independence Referendum

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

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

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

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

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

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

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

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

16 Comments

Filed under Scotland, Devolution

Tagged as Scottish Independence, Scottish Referendum, Scotland Act 1998

by Constitutional Law Group | · 9:54 pm

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4 Comments

Filed under Scotland, Devolution

Tagged as Scottish Independence, Scottish Referendum, Scotland Act 1998

by Constitutional Law Group | · 12:17 pm

Christopher McCrudden: Scottish Independence Referendum: the Northern Ireland and international human rights law dimensions

Nick Barber’s post on a Scottish referendum raises many interesting issues, not least the implications of setting the issue in the context of British constitutional development as a whole. He misses at least two pieces of the jigsaw, however, which need to be factored in if a more comprehensive view is to be taken.

The first issue is the experience in Northern Ireland of such referenda. In March 1973 a referendum was held as to whether Northern Ireland should remain part of the United Kingdom and whether it should join with the Republic of Ireland to form a united Ireland. Nationalists boycotted the poll and the result was an overwhelming vote in favour of the Union. Since then, the possibility of a repeat referendum has been one of the elements of the Peace Process.

The current provisions are set out in the Northern Ireland Act 1998. This partially implemented the Belfast Agreement, and provides for a referendum on independence for Northern Ireland in certain circumstances. Section 1 provides that “Northern Ireland in its entirety remains part of the United Kingdom”. In rather convoluted drafting, the section further provides that Northern Ireland “shall not cease to be [part of the United Kingdom] without the consent of a majority of the people of Northern Ireland voting in a poll held for [these] purposes …”.

For a poll to be regarded as being held under the1998 Act, it is the Secretary of State who, by Order, is responsible for calling the poll, for setting the date, for specifying who is eligible to vote, and for setting the question (“or questions”) asked. There has been some debate in Northern Ireland as to whether the Northern Ireland Assembly might organise such a poll, but it is clear that, even if it can, it would be only advisory. A poll must be held in accordance with the provisions of the 1998 Act, if it is to have the legally binding effects set out subsequently.

The Secretary of State has a wide discretion as to when to hold such a poll but this discretion is, however, limited in two respects. First, the Secretary of State is required to call a poll “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.” Second, the Secretary of State is required not to call a referendum “earlier than seven years after the holding of a previous poll” on the issue.

The domestic legal consequences of a vote in favour of exit depend on the exact nature of the question asked. There are two possible scenarios, at least theoretically. One possibility is that a question might be put on whether Northern Ireland should leave the United Kingdom and become a separate state (however unlikely this now seems, an independent Northern Ireland was debated on the fringes of loyalist politics in the past). The more likely, second, scenario is that the question would ask whether Northern Ireland should leave the United Kingdom and form part of a united Ireland.

The domestic legal consequences of an affirmative vote for exit are not entirely clear because Section I addresses only the latter possibility. If there is an affirmative vote in favour of exiting the United Kingdom and joining a united Ireland, then the Secretary of State is under a duty to act on the result. The Act specifies that where the wish expressed by a majority in such a poll is that “Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland” (but only in such circumstances, it would seem), then the Secretary of State “shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.”

The second issue that Nick Barber’s post misses is the implications of international human rights law for Scottish independence. This too is illustrated by the position in Northern Ireland, where the right to self-determination is accepted and agreed. There is no legal obligation under the 1998 Act on Parliament to accept these proposals. Failure to do so, however, would be likely to result in a breach of the United Kingdom’s international law obligations to the Republic of Ireland under the Belfast Agreement.

In the British-Irish Agreement element of the Agreement, the two states recognised the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland.

They recognised also that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.

Most importantly, the two States accepted that a referendum under the Northern Ireland Act 1998 would have international law consequences on the British Parliament. The two states specifically affirmed that “if, in the future, the people of the island of Ireland exercise their right of self-determination … to bring about a united Ireland, it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish”.

This right to self-determination in the Irish context is merely one instance of a British constitutional law’s acceptance of the right to self-determination that the United Kingdom accepts as an international law obligation more generally. This can be seen, for example, in the United Kingdom’s ratification of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Both these Covenants, binding on the United Kingdom in international law provide for a right to self-determination. This dimension appears to be entirely absent from Nick Barber’s post.

What the implications of these international law obligations are on British constitutional law is, of course, an immensely complicated issue, but the issue it raises is of importance for the Scottish (and British) debate more generally: when Nick Barber states a general moral principle that exit from the United Kingdom must take place according to UK constitutional law, does this adequately take into account the Scottish people’s (international law) right of self-determination?

Christopher McCrudden is Professor of Human Rights and Equality Law, Queen’s University, Belfast

Tag Archives: Scottish Referendum

Paul Reid: Independence, the referendum, the franchise and prisoners: stormy waters ahead?

Jo Eric Khushal Murkens and Peter Jones: Salmond and Cameron order a dog’s dinner at the EU café

News: Scottish Referendum Question Appears to be Resolved.

Nick Barber: The Virtues of Advisory Referendums

House of Lords Select Committee on the Constitution Produces Report on Legality of Scottish Referendum.

Grégoire Webber: On Independence for Scotland: An Overview Of Canadian Experience

Gavin Anderson et al: The Independence Referendum, Legality and the Contested Constitution: Widening the Debate

Adam Tomkins: The Scottish Parliament and the Independence Referendum

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

Christopher McCrudden: Scottish Independence Referendum: the Northern Ireland and international human rights law dimensions

Email Subscription

Follow us on Twitter

Blogroll

Archives

Recent Posts

Categories

Tags

Follow “UK Constitutional Law Group”