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Adam Tomkins: The Scottish Parliament and the Independence Referendum

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

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

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

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

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

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

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

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

18 comments on “Adam Tomkins: The Scottish Parliament and the Independence Referendum

  1. ObiterJ
    January 13, 2012

    If I may say so, some excellent discussion on this blog. I posted about this earlier this week on my own blog. The polarised legal opinions on whether Edinburgh could stage a referendum must mean that the only sensible way forward is for Edinburgh to obtain that specific authority even if it thinks it already has it. The last thing anyone really would wish for is to see this matter going before the judges. Given that a section 30 order is now on offer, Mr Salmond should accept it and I suspect that he will.

    I have wondered whether even a section 30 order might be challenged in the courts. Does the Scotland Act 1998 really permit a section 30 order to be used for a purpose as fundamental as setting in train the breakup of the Union? Ideally, to avoid this question, the UK Parliament would enact a short Act to authorise the referendum.

    • Brian Slocock
      January 13, 2012

      The best way to clarify the legal authority of the Scottish government is not by swallowing the highly manipulative formula offered in the Scotland Office Consultation but by having an Act of the Scottish Parliament on this matter referred to the Supreme Court for ajudication. What is the point of a Supreme Court if not to deal with fundamental issues such as these?

  2. Prof. Adam Tomkins
    January 13, 2012

    Excellent question. Is there a Padfield argument that s 30 of the Scotland Act may be used for a matter consistent with the (devolutionary) aim and policy objective of the Act but not for a matter that has not just a different aim but the opposite aim (i.e., of ending the devolution scheme altogether, which is what independence will do)? R (Javed) v SSHD [2002] QB 129 may have some relevance here (even though the Supreme Court rather abruptly swept it to one side in AXA). Fascinating.

    • ObiterJ
      January 21, 2012

      Yes, it is interesting. However, s.30 Orders are subject to affirmative resolution procedure and would not be presented to Her Majesty at Privy Council unless and until such resolutions were secured at both Westminster and Edinburgh. For this reason, I do not think that a challenge to a s.30 order would be likely to succeed.

  3. Brian Slocock
    January 13, 2012

    A response to Adam Tomkins main post:
    “It is not therefore possible for the UK to “impose” anything on Scotland using the section 30 order procedure that the UK Government has proposed should be used in this case. ” This is quite disingenuous. What the Westminster Government is offering Scotland is a pure Hobson’s choice – it can formulate a referendum reflecting Scottish prefererences, which the Scotland office will treat as unlawful, or it can accept the proposed Section 30 order which will require it to conduct the referendum according to Westminster’s preferences. This is clearly an “imposition”.

  4. JustAsking
    January 14, 2012

    I wonder whether as a matter of public international law the Scottish “people” have a right to self-determination such that a unilateral secession would trump UK constitutional law?

    See: Reference re Secession of Quebec [1998] 2 SCR 217

    • Rick Hoyle
      January 18, 2012

      As a very brief answer, there are two questions here. The first is whether subpart of a population (ie the Scots, as part of the UK population) constitute a people and therefore a self determination unit. This question is contested, but I would suggest that McCorquodale is correct when he suggests that they can be. The second is what is the consequence of that conclusion. Re Secession is unambiguous on that point (it leaves the question of Quebecois as a people to one side) – external self determination (ie the right to secede) is not generally permitted in the absence of grave human rights abuses (which amount to a complete violation of the ability to participate politically and self determine internally). It is, however, correct to say that statehood in international law is not generally prejudiced by a breach of domestic constitutional law. The fact that the ICJ chose to dodge these interesting questions in its Kosovo Advisory Opinion means that the law here is unclear, but it is likely that as things stand, such a course would be factually possible but illegal under international law.

  5. Aileen McHarg
    January 16, 2012

    The idea that a s.30 order might itself be ruled ultra vires the Scotland Act because it is contrary to the purpose of devolution is taking us into the realms of pure fantasy. The major problem is to determine what is the purpose of devolution. Is it a mere delegation of authority by a sovereign parliament (the unitary state narrative); is it a move towards a quasi-federal constitution (the federalist narrative); or is it a renegotiation of Scotland’s place within the union on behalf of the sovereign Scottish people (the union state narrative)? On the first two narratives, constitutional questions, including further devolution or dissolution of the union, remain matters for the Westminster parliament. But on the latter narrative – which has considerable political resonance within Scotland (whatever its historical or legal plausibility) – these are legitimate matters for the Scottish Parliament in its role as representative of the Scottish people.
    Because of the disputed constitutional significance of devolution, it seems to me that the legality of a Scottish referendum bill, as the Scotland Act currently stands, is an open question. If the Scotland Act is to be interpreted purposively rather than literally, which is what the weight of authority suggests, then it is very difficult for the courts to avoid taking a stance (at least implicitly) on this issue. The problem then is that whatever decision they take is bound to be perceived as ‘political’. But even taking refuge in literalism would not save them from accusations of political bias, since that in itself would clearly be a value choice. In other words, if the question of the legality of a referendum bill under an unamended Scotland Act were to come before the courts, it would pose a significant risk to their authority and legitimacy – a legitimacy which, in the case of the Supreme Court, is already under attack. Against that background, were a s.30 order to be enacted, indicating a clear political intention from both parliaments that the Scottish parliament should be able to authorise a referendum, I cannot imagine any sensible judge doing anything other than gratefully giving effect to it.

    • ObiterJ
      January 21, 2012

      I agree that IF a section 30 were challenged then the courts would give effect to it. The principal reason for this would be that such Orders are subject to affirmative resolutions both at Westminster and Edinburgh.

      For the reasons you have given, I agree that it is better that the courts be kept out of this.

    • cruachan3
      February 11, 2012

      I hadn’t heard the notion that an s.30 Order may be held ultra vires.

      In seeking the to find purpose of devolution under the 1998 Act, looking at the Act and surrounding papers &c., it would appear that the purpose is the first of your three examples, construed literally, purposively, or both.

      Helpful to draw a clear distinction then, between devolution and separation, the first intended by the Act, the second, not.

      The “federal” notion was floated at the time, principally by Liberal Democrats, but did not last, and the devolution settlements apply to the three devolved nations on an individual basis, under legislation particular to each.

      There is a question over the notion of the “sovereign Scottish people”. This notion, while presumably historical, has only recently surfaced within our discourse. While open to pointers, I can find no earlier trace, nor authority for the existence of the proposition, beyond historic legislation, which has either been superseded or which has fallen into desuetude. References to Lord Cooper (McCormick v Lord Advocate 1953 SC 396) notwithstanding.

      In your post: “These are legitimate matters for the Scottish Government in its’ role as representative of the Scottish people” must surely be qualified by ” insofar as its’ (SGs) powers extend” or somesuch.

      It’s helpful to remember that the Scottish people are also represented by MPs, in legislative areas which many, if not most, in Scotland find more relevant to them. Poll evidence suggests that MPs enjoy a greater recognition factor also. [Pls note: The Scottish Affairs Committee “The Referendum on Separation for Scotland: Unanswered Questions” reports on Wednesday 15 February].

      It is to be hoped surely, that the path of discussion and negotiation between Holyrood and Westminster will be adopted. While I tend, from all available reading, towards the first narrative as best describing the intention of Parliament in passing the Act, and thus the express consent of Government must be obtained, I fervently hope we’ve no need to test hypotheses in a courtroom.

      Nobody, least of all the judiciary, wants that.

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This entry was posted on January 12, 2012 by in Devolution, Scotland and tagged , , .
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