There is clearly something in the air at present, because it is not usual for debate on the finer points of the law to take up as many headlines as in the last six weeks – at least in Scotland. But alongside the wider issue of the case for and against the Union, some attention has been given to the legal aspects of the process of establishing the referendum. I would like to thank Terra Firma chambers for hosting this event, today and for providing an opportunity for discussion of such a crucial issue.
There will be – and have been – accusations that we are simply enjoying discussion on ‘legal technicalities’ or ‘legal nit-picking’. But we shouldn’t be deterred from taking an objective and reasoned view of the law, as the starting point for discussion of Scotland’s constitutional future. Without law there would be no devolution of power within the UK, there would be no Union, and, indeed, there could be no ‘independence’, because the concept of an independent nation state depends on there being an international legal order which recognises and protects that independence.
Political debate in this country takes place within the context of the rule of law. When reading the judgment of the Inner House in Imperial Tobacco the other week I was struck by the quotation (cited by Lord Reed) from Lord Bridge of Harwich in the Morgan-Grampian1 case from 1991:
“The maintenance of the rule of law is in every way as important in a free society as the democratic franchise. “
So, as lawyers we should not allow themselves to be sidelined in this debate. Not that I am suggesting that there is a risk that we will be silent – I am pleased to report that the right of freedom of speech is being exercised to the full by the legal profession. Indeed over the past month it appears that nearly every well known lawyer in Scotland (and beyond) has had a say. If you have all been following this debate, I expect you are familiar with the UK Government’s position on whether there are powers under the Scotland Act 1998 for the Scottish Parliament to legislate for a referendum on Scotland’s constitutional status. The position of the UK Government was stated to both Houses of Parliament (the Secretary of State for Scotland in the Commons and myself in the Lords) on the 10th January, and was set out in the Government’s consultation document, “Scotland’s Constitutional Future”.2 The Scottish Government’s own consultation paper was published on 25 January – not surprisingly perhaps its legal analysis does not fully accord with the UK Government’s. Nevertheless, it is acknowledged that there are restrictions on what the Scottish Parliament can do.
1 X Ltd v Morgan-Grampian (Publishers) Ltd  1 AC 1, 48.
2 The consultation document, and the Advocate General’s speech of 20 January at Glasgow University are available on the Office of the Advocate General website.
3 Imperial Tobacco Ltd v The Lord Advocate  CSIH 9.
It is agreed that the Scottish Parliament cannot legislate on matters which are reserved to the UK Parliament, and among those matters, listed in Schedule 5 to the Scotland Act, is the constitution including “the Union of the Kingdoms of Scotland and England”. Any provision in an Act of the Scottish Parliament which “relates to” a reserved matter, such as the Union, is not law, and could be struck down by a court if challenged. The UK Government’s understanding of the Scotland Act is that a referendum about the constitution, even if “advisory” or “consultative”, would relate to a reserved matter.
That position is, I believe, supported by the case law we have on the Scotland Act, including the most recent judgment, that of the Inner House of the Court of Session in Imperial Tobacco3 (of which, more, later…).
That such a referendum would be ultra vires is not a surprising conclusion if we go back to the debates in Parliament on the Scotland Bill in 1998, when the Secretary of State for Scotland at the time, Donald Dewar, set out his understanding of the legislative competence of a referendum on independence.
I would commend those Hansard debates from 1998 to anyone wishing to gain a better understanding of the devolution settlement. It seemed to us, as MPs, during that debate, that the intention behind the Bill was that a referendum on the Union would not be within legislative competence, and Mr Dewar was quite clear that a referendum which paved the way for something that was ultra vires would itself be ultra vires.
His statements to the House do not, in themselves determine the question of legislative competence; but it seems that Parliament intended to reserve decision making on any further devolution power, or independence, and I think it would be surprising if the Act had not achieved that aim.
It seems to me that, as a matter of common sense, and on a reading of the plain words of the statute, a referendum about the Union, whether “advisory” or “consultative”, and whether it would result in the end of the Union or, arguably, if it would strengthen the Union, would relate to the Union, and would therefore be “not law”.
I was pleased to note that, just today, the House of Lords Constitution Committee published a report which states that my conclusion on this point is, in the Committee’s words, “plainly correct”.
In our political language, a referendum is not simply an opinion poll. It is, or at least it purports to be, a way of taking a political decision, in cases where a decision is thought to be best made by the electorate directly rather than by their representatives in Parliament. Legislation for a referendum must do something, otherwise it hardly seems to be a proper use of public money.
4  UKSC 10.
Of course, the UK Parliament cannot bind itself and cannot be bound by a referendum – but a referendum does involve a decision being made by the electorate, and the result, especially if it is clear and decisive, is hard for a democratic government to ignore. The fact that the UK Government can, in theory, ignore the result of a referendum set up by Scottish Parliament legislation – and I know Professor Tierney has suggested this line of argument – does not seem to me to give sufficient weight to the real effect, in practical terms, of a referendum result.
We know that the real aim of the Scottish Government’s proposed referendum is that which they set out in their manifesto last year – that the result of a “yes” vote would mean that Scotland becomes an independent nation. That would be its intended effect.
What is at issue here, as I am sure you are aware, is the so-called “purpose test”. We have had, since 2010, guidance from the Supreme Court on the meaning of that test, in Martin and Miller v Lord Advocate4, and more recently, in the last few weeks, as I mentioned earlier, from the Inner House in Imperial Tobacco.
This isn’t the occasion to set out my understanding of Imperial Tobacco in detail, (and, indeed, there may yet be an appeal to the Supreme Court and I would have to decide whether to take part or not) but suffice to say that I see much there which supports the UK Government’s view of how legislative competence works in the Scotland Act. In that case, the Inner House took a broad approach to the purpose test and was prepared to look at why a provision was being enacted as well as what it actually does. All three judges considered background materials such as the policy memorandum and Ministerial statements to be relevant in ascertaining purpose. The result was that the legislation was within competence. One ground of challenge was that the provisions related to a reserved matter, but the Court assessed the purpose of the provisions quite broadly and concluded that they did not relate to the regulation of the sale of goods and services or the protection of consumers.
It would seem to me to be hard to argue for an application of the purpose test which brought well-intentioned Scottish Parliament legislation within competence but could not be applied in the same way to legislation whose underlying purpose related to a reserved matter.
Of course, one does not take a public position on a point of law without some anxiety about whether the legal argument will withstand scrutiny.
It was reassuring that when I made the government statement in the House of Lords, my predecessor, Lord Davidson of Glen Clova, endorsed the UK Government’s view.
And I was given further re-assurance in the subsequent weeks by legal scholars and practitioners writing in the newspapers. I expected that some people would disagree and that expectation has been met. But I have been fortified by support for our view. Lord (David) Pannick wrote in the Times on 19th January that
“A referendum in which the people of Scotland are asked to express their opinion on whether to dissolve the Union, even if consultative and not binding, plainly “relates to” the Union. That is because the purpose of a referendum and (if a positive answer is given) the effect, would be to promote a dissolution of the Union”.
In the “blogosphere”, Professor Tomkins of Glasgow University put forward a similar view, as did Aidan O’Neill QC. I was pleased also to note the views of Iain Jamieson, who, as many of you will know was closely involved in the development of the Scotland Bill, subsequently Act, (writing in The Scotsman); and also Jim Sillars, in the Edinburgh Evening News – support from an unexpected quarter.
Of course, as I said, I anticipated some disagreement. Professor Robert Black has written that “…no court could conceivably hold that it was beyond the legal power of the Scottish Government to promote legislation to enable it to consult the Scottish electorate…about…making such proposals to, or holding such negotiations with, the Government of the United Kingdom.” He added that any challenge in the Supreme Court “…would be doomed to failure.”
A carefully considered piece was published on the website of the UK Constitutional Law Group by a group of seven academic lawyers from Glasgow and Edinburgh Universities (including among others Professors Tierney, Mullen and Walker) – an article which certainly merits close reading. It is perhaps too detailed to summarise here but they queried the view set out in the UK’s consultation paper, suggesting that a “quasi-federal account of the UK constitution” would be likely to be endorsed by the courts. That blog was published before the Inner House’s judgment in Imperial Tobacco, and it seems to be predicated on the basis that the courts would approach the interpretation of the Scotland Act “generously and purposively”, as suggested in Robinson v Secretary of State for Northern Ireland, because it is a constitutional measure. However, in Imperial Tobacco, the Inner House expressly rejected that approach to interpretation of the Scotland Act, and also rejected the suggestion that there should be any presumption in favour of an Act of the Scottish Parliament being within competence.
The UK Constitutional Law Group blog did also suggest, if I am reading their views correctly, that the UK and Scottish Governments would be wiser to agree on an express transfer of powers – and on that point we have a measure of agreement.
The UK Government proposes that the power in section 30 of the Scotland Act could be used to ensure the legality of a referendum, as well as setting parameters to ensure that the referendum is fair, and decisive. The order, giving the Scottish Parliament new powers, would have to be approved by both Parliaments, reflecting the fact that both governments and both Parliaments have a legitimate interest in this matter.
It is not being suggested – as Dr Matt Qvortrup implied in The Herald recently “Judges will not be the ones to decide on independence”, The Herald, 7 February 2012 – that “Scotland” has no legal right to a referendum, or to determine its own future. Rather, the point is that Scotland has two democratically elected Parliaments each with an interest in this matter. The Scottish Parliament now has a majority of members who believe in an independent Scotland and have called for a referendum on that issue; and the Scotland Act was passed by a democratic Parliament which imposed limits on the powers of the devolved legislature, following not only extensive debate in Parliament, but also a referendum which endorsed that model of devolved government. I note that the Scottish Government (in their consultation paper) have expressed a wish to work with the UK Government to resolve any doubts about legislative competence, and I hope that in the weeks ahead we shall be able to work together to secure agreement on Scotland’s constitutional future.