Tag Archives: Scottish Referendum

Nick Barber: After the Vote: Regulating Future Independence Referendums

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Neil Walker on Scotland: Hijacking the Debate

NeilLet me lay my cards on the table. I remain inclined to vote ‘no’ in September’s referendum. I put it no stronger than ‘inclined’ in part  because I believe, in  the spirit of democracy – even democracy referendum-style – that those of us who have not signed the party pledge should keep an open mind as long as possible. That, indeed, is one of the reasons  why,  18 months ago,  some of us set up the Scottish Constitutional Futures Forum  and its  accompanying blog. But my reservations are also partly because  recent  events  have fuelled my anxiety about  the climate in which the debate is taking place. They have made me wonder whether the case for independence is getting a fair crack of the whip on the international stage, and have caused  me to ponder the implications of lending my vote to a position that remains so reliant upon negative rather than positive arguments.

I am not talking about the shenanigans over a Currency Union. It may  be a minority position, but I believe both sides have been giving as good as they get on this question, and that neither comfortably occupies the moral high ground. There has always been something  both opportunistic and wishful in the nationalist stance. Sterling, once derided as a busted flush,  is reclaimed as a joint birthright. The Euro, once hailed  as the bright new  monetary dawn, is conveniently relegated to the status of a political  lifestyle choice rather than faced up to as an obligation of EU membership that can, at most, be  deferred.

The Unionist response may be  no more elevated  than this, but is surely ranks no lower. There is an arguable case, if a far from compelling one, that it would be in rUK’s best interest to refuse the  departing Scots a Currency Union. There are certainly risks  either way, and  rUK might well change tack in the cold light of a ‘yes’ vote. But Better Together is being no more narrowly strategic than the nationalists in arguing forcefully for the position that  best suits its immediate interests. It is a position that could backfire – may already be backfiring – as it allows the nationalists to play the victim card, and to point out that, as the residual sovereign in the event of post-yes-vote negotiations, rUK enjoys  the ‘bully’s’  advantage  of  being able to make promises  – or threats – that it can credibly deliver upon in self-fulfilment of  its prophecies and  prejudices. But in the final analysis, the Better Together position, like the nationalist one, is a democratically legitimate one. It is articulated by  elected politicians of various parties in favour of a constituency – the UK – whose  right to retain the decisive constitutional  voice is the very issue at the heart  of the referendum. And while nationalists may proclaim the inconsistency of Better Together’s new position with its previous self-denying ordnance against pre-specification of the terms and conditions of independence, they must also acknowledge that  the Unionist parties, by building a united front on sterling, have at least  answered another widely aired  doubt. For  once they have demonstrated their ability to get their act together and find common voice when it really matters.

The issue of democratic credentials, however,  brings me directly  to the point of my comment: namely that other awkward union, the European Union, and the position of Jose Manuel Barroso, President of the European Commission, on the subject. Barroso has previously given strong indications of where he stands, so perhaps we should not be too surprised by his remarks on the BBC’s flagship Andrew Marr Show last weekend. The novelty of his latest contribution may only have been one of emphasis, but the tone was nevertheless striking. Apparently the prospects of membership for an independent Scotland, never untroubled in his perspective, are now to be assessed as  “extremely difficulty… If not impossible.”

These remarks have been well publicised. Predictably, they have been seized upon by Better Together as vindicating their long-standing scepticism about an independent Scotland’s EU future, and as further evidence of the emptiness of nationalist promises. But why should anyone listen to Barroso on this topic?  Does he have a legitimate political voice in the debate? Does he speak from a position of legal authority?  Or, regardless of his political or legal standing, does he simply have a good insider argument, and one that we should heed? The answer, on all three counts, would seem to be ‘no’. Why is this so, and why is it important to the integrity of the debate that the kind of intervention Barroso has sought fit to make should be challenged?

First, there is the question of legitimate political voice. Barroso is not an elected politician. One upon a time he was. Between 2002 and 2004 he was Prime Minister of Portugal. Since then he had done two stints and ten years as the unelected President of the European Commission. His position, which he will vacate this year, does depend upon that of two elected institutions – on the  Council ( made up of nationally elected politicians) which proposed him, and on the European Parliament which  was required to approve  his appointment.  Under new rules introduced by the recent Treaty of Lisbon, the appointment of his successor will be subject to an additional  indirect democratic check – namely the requirement that his or her nomination by the European Council should ‘take account’ of the results of the latest European Parliamentary elections. In fact, the last European elections in 2009 already saw a move towards an overtly political style of appointment, with Barroso the chosen candidate of the   European People’s Party.    But none of these developing procedures and practices can make an elected politician out of an unelected public servant. Barroso has no popular mandate, and perhaps some sense of that lay behind his protestations to Andrew Marr, rendered not a jot more credible by their repetition,  that his words did not constitute an attempt ‘to interfere’ in a matter of internal Scottish and British politics.

But even if Barroso represents no electoral constituency, does he, as head of the Commission, nevertheless possess a clear legal authority, or even a duty,  to step into the Scottish debate? The Commission certainly has an extensive legal remit. According to Article 17 of the Treaty on European Union, it ‘shall promote the general interest of the Union’.  Yet in so doing we should understand the Commission’s  role as servants of the Treaty framework rather than its master. Article 17 continues by specifying the Commission’s role in ways that reflect and confirm its status  as  the EU’s  administrative college. Its responsibilities are largely downstream. They include the monitoring of the  application of European law, the performance of various budgetary, management, executive and management functions, as well as the power to initiate ( but not decide) legislation under the Treaties. In all of this the Commissioners, including the President, like civil servants everywhere, are charged to act independently of external influence.

None of this suggests any stand-alone authority for the Commission or its President on the high political question of new membership, except insofar as this is directly specified in the Treaties. But if we look at the relevant provisions  – Article 49 on accession and  Article 48 on  the alternative route of general Treaty revision – the standing of the Commission is a distinctly modest one. As regards accession, its role is only one of consultation, with the key decision-making reserved to the European Parliament and the Council. As regards general Treaty revision, the Commission is one of a number of institutions that may make proposals, but here the decisive voice lies squarely with the national governments.

If the Commission does not command a central  legal role in these matters, should we not nonetheless be prepared to listen carefully to the views of its President simply as an expert in Union-craft -  as someone who has the knowledge and experience gained from a decade of independently ‘promoting the general interest of the Union’? Absolutely. Of course we should! The snag  here is  that the President has chosen to say nothing worth saying – nothing that would draw upon a considered sense of that general interest,  but instead restricts himself to well-worn  prognostications about what others  might do in pursuit of their particular interests. He trades on the symbolic authority of his position to do nothing more than profound than  recall that the reception of an independent Scotland into the European Union, whether through the  Article 49 route that he envisages, or through the relatively  ‘seamless’ Article 48  route that the nationalists argue for, would  require the approval of all 28 existing member states; and then to advise that this is an arithmetically formidable threshold, especially given the reservations of certain member states about independence movements in their own backyards – a caution that, as Barroso proceeds to reminds us,  has led Spain, concerned with Catalonian and Basque claims, even to refuse to permit a precedent as distant as the recognition of Kosovo as an independent Balkan state.

What is glaringly absent from the debate, both in the  knowing buck-passing of Barroso’s intervention and in the broader silence of the EU’s main movers and players on the Scottish question, is the articulation of any kind of public philosophy that would provide good reasons, rather than simply motivations of base political self interest, why an independent Scotland should or should not be welcomed with open arms. How, precisely, is the EU, still  resolved by common commitment of the member states in the preamble to the Treaty on European Union ‘ to  continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity’, to justify the exclusion of an independent Scotland? Why should  a country of 5  million citizens, who  have also been EU citizens for 40 years and who have expressed no desire to leave the European Union, be treated less  generously than the 110 million new EU  citizens – over 20% of the EU’s total population – who have joined from Central and Eastern Europe since 2004? Why should Scottish citizens instead be placed in the same category of Kosovo, or any other  potential candidate from beyond the Union’s distant borders?

The point in posing  these rhetorical questions is not to suggest that the propositions they contain will simply collapse under the weight of their own absurdity. For there  may well be a principled case to  make  against automatic and accelerated membership of an independent Scotland. We find the embryo of such a case, for example, in the analysis of Joseph Weiler, the current President of the European University Institute in Florence. He has argued, with special  reference to the Catalan case,(see http://www.ejiltalk.org/catalonian-independence-and-the-european-union/) that just as national minorities in existing member states who presently enjoy extensive forms  of individual and collective freedom have no  automatic right to secede as a matter of general international law, so, too, the  European Union in its accession policy should not be expected to indulge the independence claims of these unoppressed sub-state nations.To the contrary, the very ethos of integration, reconciliation and continental solidarity that has fed the European project from its post-War beginnings, according to Weiler, should lead  the European Union to take a dim view of any separatist impulse that seems to betray these very founding virtues. From this perspective, therefore, far from having a stronger claim than those external candidates  who have benefited from the post-Cold War Enlargement, those nations already comfortably nested in the EU’s Western European heartland  of multi-level governance should be promised no safe European haven if they insist on the path to independence.

I happen to disagree with both the specific thrust and the wider implications of the  Weiler thesis. To begin with, and most narrowly, even if Weiler’s reasoning is applicable to the situation of Catalonia, where no constitutionally permissible route to referendum and independence is presently countenanced at the level of the wider Spanish state, the Scottish case  is quite different. Here, the Edinburgh Agreement reflects the preparedness of the UK’s flexible constitution to accommodate the prospect of independence. So for the EU to set its face against Scottish independence would be  to dismiss the significance of the member state’s own recognition of the legitimacy of secession.  Secondly, and more broadly, whether we are dealing with the  Scottish or the Catalan case or that of any other national minority, surely more store than Weiler allows should be set by an aspiring nation’s own sense of what is the constitutionally adequate vindication of its desire for collective autonomy. If nothing short of independence is deemed adequate from the perspective of the constituency in question as an affirmation of shared political identity, it is difficult to see why such a subjective  aspiration should be dismissed in favour of a supposedly objective  standard of adequate individual and collective freedom. Thirdly, even if a special case for the EU  as an entity possessing and pursuing a unique historical mission to make internal secession both unnecessary and unacceptable can  be advanced,  it seems unduly dogmatic to use this to justify a rigid policy against  continued membership of new internal states. There are, after all, other and rival views of the deeper purpose of the European Union. The priority given in the Preamble to the TEU to the principle of subsidiarity has already been mentioned, and this surely reflects an alternative  and more independence-friendly perspective. In the face of these competing narratives, should the public policy of the EU on accession not remain more agnostic?

Whether or not my arguments convince, they surely serve to demonstrate  that the EU’s accession policy is and always has been intimately linked to the deep purposes of the world’s first supranational polity, and to ongoing debate, inevitably controversial, over what precisely these deep purposes demand.  It is, therefore, a matter that  requires reasoned public argument and justification of the sort that Weiler attempts rather than a mere weighing of the strategic ‘private’ preferences of national parties. Yet all we get from Barroso is the latter. Not only is this less than we might expect from someone committed to the general interests of the Union, but it also allows the prejudices of national parties to be entered to the calculation without the embarrassment of a first person airing.

In a nutshell:  If any of the key players on the EU stage is opposed to Scottish membership then they should either show the courage of their convictions through a discourse of public justification linked to the interests of the Union as a whole  or, failing that,  they should at least be prepared to declare their intentions to act out of national self-interest. Barroso’ s intervention allows a significant oppositional note to be struck without either of these tests of public candour being met. The danger increases that our independence debate become hijacked to poorly specified and undefended external considerations. That surely is bad news for anyone interested in the referendum as a means to the long-term, widely accepted  resolution of our national conversation.

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

Suggested citation: N. Walker, ‘Hijacking the Debate’ Scottish Constitutional Futures Forum Blog (18th February 2014) (available at: http://www.scottishconstitutionalfutures.org) or N. Walker, ‘Hijacking the Debate’ U.K. Const. L. Blog (18th February 2014) (available at: http://ukconstitutionallaw.org/).

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Aileen McHarg: A Tale of Two Constitutions?

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

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

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

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

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

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

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

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

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

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

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

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

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Stephen Tierney: The Scottish Constitution After Independence

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

In this blog I will briefly discuss three matters:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Neil Walker: The Receding Tape

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Franchise

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

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

 The Question

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

Electoral Commission

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

Referendum Period

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

Funding and Spending Rules

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

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

Spending Limits

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

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

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

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

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

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

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

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

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

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

paulThe 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).

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

jo-mur1 peterCountries 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)

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News: Scottish Referendum Question Appears to be Resolved.

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

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

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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. 

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