Looking forwards: to a Legal, Fair and Decisive Referendum

Legalities of a referendum.

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

The Rt Hon Lord Wallace of Tankerness QC

You would have to be living in splendid isolation not to be aware of the debate on Scotland’s constitutional future over the last year. Since January, much of this debate has focussed on legal aspects of the question, and I would expect those in one of Scotland’s most famous law firms to be fully aware of the terms of the debate. One pleasing aspect of this debate, from a personal point of view, is that I have been invited to speak before several gatherings of prominent lawyers in Scotland, and I am particularly grateful to Balfour and Manson for offering me the opportunity to speak in Aberdeen today. I am going to set out a short summary of where I think we have reached on the legalities of a referendum, and I would welcome the chance to discuss these matters with you informally afterwards.

I should start by saying that I do not consider the law to be a peripheral matter in this debate. There are those who will talk of ‘legal technicalities’ or ‘legal nit-picking’ but nothing should deter us from taking an objective and reasoned view of the law as the starting point for discussion of our constitutional future. There is a concern about the legal status of a referendum being determined in a court of law – the responses to the UK Government’s consultation paper demonstrate this concern among lawyers and others. That is a different matter (which I will return to). But we should recognise that devolution is a legal construction. As is the United Kingdom. Indeed, without law there would be no question of Scotland being ‘independent’, because that status depends on there being an international legal order to recognise and protect the independence of nation states. It is the rule of law which underpins politics in this country, and we should not underestimate its importance. You may have read the judgment of the Inner House in the Imperial Tobacco case earlier this year – I thought it was interesting that Lord Reed quoted Lord Bridge of Harwich in the Morgan-Grampian case (from 1991). He said: “The maintenance of the rule of law is in every way as important in a free society as the democratic franchise.” And if the rule of law is as important as democracy, it is also important that lawyers are part of this debate. Of course, it is of particular interest to constitutional lawyers, and the last six months have seen the spotlight falling on the constitutional lawyers in Scotland as never before – some of most learned constitutionalists, after years of lonely wandering in the groves of academe, now find their mantelpieces adorned with invitations: to public seminars, panel discussions, radio interviews, debates on Newsnight. And, of course, their intervention is welcomed (and I will return to their views later). You are probably all familiar by now with the UK Government’s understanding of the limits of the Scottish Parliament’s legislative competence under the Scotland Act 1998. In our consultation paper on Scotland’s Constitutional Future, we set out the clear view that a referendum on independence would be outside the Parliament’s legislative competence. This view was explained to both Houses of Parliament in Westminster, by the Secretary of State for Scotland in the Commons, and by myself in the Lords, on 10th January. Clearly, one does not express a view of the law in public without some trepidation as to how it will be received. Not least in the House of Lords where so many eminent lawyers sit before you. Some of those eminent lawyers – Lord Pannick and Lord Irvine for example – sit on the House of Lords Constitution Committee, and if you wish to read a detailed explanation of the legislative competence question you can do no better than to read that Committee’s report, “Referendum on Scottish Independence”, in particular Chapter 2. The Report explains that the Scottish Parliament is “a legislature which is subject to the rule of law. It is not a sovereign parliament and may make law only within the limits of its competence.” The key provisions of the Scotland Act are section 29 and Schedule 5 – and the Report notes Part 1 of Schedule 5, which reserves “The Constitution” – specifically “the Union of the Kingdoms of Scotland and England…” The Report also notes the UK Government’s view that “a referendum about the Union would relate to the Union” and would therefore be “not law” within the meaning of section 29. “This view”, they say, “seems to us to be plainly correct”. The report goes on to say: “This conclusion is fortified by section 29(3), which provides that whether a provision of an Act of the Scottish Parliament ‘relates to’ a reserved matter is to be determined by reference to its ‘purpose’, having regard, among other things, to its ‘effect’. The purpose of the Scottish Government could not be clearer: they desire independence for Scotland and, as the SNP stated in its 2011 manifesto, a yes vote in any referendum on Scottish independence ‘will mean that Scotland becomes an independent nation’. While it may be that, on a formal view, the political purpose of the SNP should properly be distinguished from the legal purpose of any Act of the Scottish Parliament (even one promoted by the majority SNP Government), case law shows that the courts will examine a broad range of background materials in order to distil the purpose of legislation, including ‘reports to and papers issued by the Scottish Ministers prior to the introduction of a Bill, as well as explanatory notes, policy memoranda and the like…’.” The Report goes on to consider the argument that the “effect” of an advisory referendum would only be to trigger negotiations with the UK Government and there would be no legal effect on the reserved matter of the Union. If the referendum were incapable of delivering independence, it could not have the effect of relating to a reserved matter. “This argument”, the Report concludes, “is seriously flawed…as it rests on a misapprehension as to the nature of referendums. Referendums in the UK are advisory (rather than binding) in the sense that Parliament remains sovereign: in exercising its sovereignty Parliament could legislate so as to override or ignore the result of a referendum. Whilst true as a matter of strict law, however, the fact should not be overlooked 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 Committee had observed in its 2010 report on referendums, even where a referendum was legally only advisory “it would be difficult for Parliament to ignore a decisive expression of public opinion.” So, the Committee concluded that, in their view, “any referendum on Scottish independence would have both the purpose and the effect of making a decision that related to a reserved matter: namely, the Union.” And, later in the report: “Without amendment, the Scotland Act 1998 confers no legislative power on the Scottish Parliament to pass an Act purporting to authorise a referendum about independence.” They also called for the making of an order under section 30 of the Scotland Act to confer that competence on the Scottish Parliament – a point to which I shall return later. So, it seemed to me that, as a matter of common sense, and on a reading of the plain words of the Scotland Act, a referendum about the Union, whether tagged as “advisory” or “consultative”, and whether it would end the Union, or even strengthen the Union would relate to the Union. That is not a surprising conclusion if you go back to the debates in Parliament on the Scotland Bill in 1998. It seemed to us, as MPs, during that debate, that the clear intention in the Bill was to exclude a referendum from legislative competence – and this specific issue was debated in some detail during the passage of the Bill. Donald Dewar, as Secretary of State for Scotland at the time, was quite clear that a referendum which the way for something that was ultra vires would itself be ultra vires. I know, of course, that Donald’s statements to the House of Commons do not determine or settle this question – but given Parliament’s intention, it would be surprising if we were to conclude now that a referendum Bill was within competence and the Scotland Act had not achieved one of its aims. Following my statement to the House of Lords, and a speech I gave soon after that at Glasgow University, I expected some comments from legal scholars and practitioners, including the views of some who would disagree. One of my favourite press cuttings from this period is from Lord (David) Pannick, who wrote in The Times 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.”

I have noted also with some satisfaction the published views of Professor Adam Tomkins of Glasgow University, of Aidan O’Neill QC, and of Iain Jamieson, a former government lawyer closely involved in the development of the Scotland Act in 1998. Further support has been gathered from responses to the UK Government’s consultation paper. Alan Page, for example, Professor of Public Law at the University of Dundee, said in his response to the paper: “Faced with a referendum that asked ‘Do you agree that Scotland should become an independent country?’ it is my opinion…that a court would hold that it was about the reserved matter of the Union and hence that it was beyond the Scottish Parliament’s legislative competence.” My satisfaction with those responses is tempered with the knowledge that a list of people who agree with you is not in itself a reasoned argument. There has been a range of alternative views, in the media and in consultation responses, and from quarters which cannot be easily dismissed. Professors Stephen Tierney and Neil Walker from Edinburgh University and, from Glasgow University, Dr Aileen McHarg and Professor Tom Mullen are among those who consider that the legislative competence issue is more open to debate than the UK Government’s view would suggest. Dr McHarg and Professor Mullen, for example, say that “…the legality of a referendum Bill passed under the Scotland Act is a more open question that has been generally acknowledged. In other words, we believe that a plausible case can be made that such a Bill if enacted would be lawful, and believe it is important that those arguments are clearly set out.” But they go on to say something which I think is crucial to how the referendum debate is to be taken forward: “Given our view that the legality of a referendum Bill is not clear cut, we think that there is considerable merit in seeking to put the matter beyond doubt…leaving the matter to be resolved by the courts creates a risk to their authority by embroiling them in divisive political controversy.” Looking at the various consultation responses, particularly the responses from lawyers, it seems likely that one could gain broad support for the following proposition: Whether or not the Scottish Parliament has legislative competence to pass a referendum Bill, it would be best if the matter were put beyond doubt by using the powers in section 30 of the Scotland Act to ensure that the Parliament has the necessary powers. Responses to the consultation paper would suggest that the UK and Scottish Governments should now seek agreement on this way forward. The Law Society of Scotland, for example, was of the view that “the making of such an Order should remove doubt as to the question of legislative competence and for that reason it may be desirable that an Order be made.” The Royal Society of Edinburgh said: “We are strongly of the view that the UK and Scottish Governments should make every effort to arrive at an agreement as to the terms of a section 30 Order”. The Church and Society Council of the Church of Scotland thought it was reasonable that a section 30 Order “…should be used as the basis for a discussion and agreement by both the UK and Scottish Governments as the legislative method by which power could be granted for a referendum on Scotland’s constitutional future to be run legally by the Scottish Government.” What the UK Government is seeking to achieve here is a referendum which is legal, fair and decisive. It would be surprising if the Scottish Government did not want the same thing. The Scottish Government is committed to holding a referendum, but there is, at the very least, doubt over whether they have the legal powers to deliver that referendum. A section 30 Order could ensure that the referendum was not subject to a legal challenge before it is even held (mindful that there is scope for interested third parties to mount such a challenge). Surely we have come too far to down this referendum road to run the risk that it could all end up in a legal wrangle in the courts, with the prospect of no referendum at all. Simply to articulate that possibility underscores the responsibility on the two governments and two Parliaments to agree a section 30 order. In reality, I am optimistic that an agreement can be reached. Both governments have expressed a preference for a single question on independence and the Scottish Government has accepted that it does not have the legal power to ask such a question. If not subject to challenge, the referendum should be decisive – for my part I hope it would confirm that most people in Scotland do not wish to see separation from the United Kingdom. And it should ensure fairness – for example by ensuring that there is a role for the Electoral Commission in supervising the poll. Remember that a section 30 Order must be approved by both the UK Parliament and the Scottish Parliament. That means, in effect, that the interest of both Parliaments and both governments is recognised in the making of the Order. Scotland has the benefit of two democratically elected Parliaments. Each has a legitimate interest in this matter. A majority of the current members of the Scottish Parliament believe in an independent Scotland, separate from the rest of the United Kingdom. The Scotland Act, with its limits on the powers of the Scottish Parliament, was passed by a democratic Parliament in Westminster – following not only extensive debate but also a referendum in Scotland which overwhelmingly endorsed our current system of devolved government. All the indications are that the Scottish Government is prepared to talk to us, and to work with the UK Government to deliver what the Scottish people want. Real progress has been made already (for example, on there being a role for the Electoral Commission) and, having come this far, people will expect us now to agree on the framework which will ensure a legal, fair and decisive referendum.

Published 4 June 2013