Scotland's Constitutional Future

Text of a speech on constitutional law to Glasgow University.

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

The Rt Hon Lord Wallace of Tankerness QC

I would like to begin by thanking Professor Beaumont for his welcome today.

As one of Scotland’s ancient universities where debate and discussion has flourished over many centuries, Glasgow University is a fitting place to discuss Scotland’s constitutional future. I am very much aware that I am addressing an audience today which is fully informed about where the current debate stands. That is, both the debate in the last forty years – or longer – and the more immediate debate in the last fortnight on legal issues surrounding a referendum on independence in Scotland.

I should warn you in advance that my subject today is constitutional law, and I make no apologies for that. I do not have any jokes about pandas for you today.

I read a quote in a newspaper yesterday from 1926 when Chief Justice Taft of the US Supreme Court suggested that a constitutional lawyer was a lawyer who had abandoned the practice of law and had gone into politics.

I am coming at this from a slightly different direction. It could be suggested that I have abandoned politics to become a constitutional lawyer.

Certainly, the constitution featured prominently earlier in my career, as a member of the Constitutional convention, involvement in the Scotland Bill in 1998, as DFM in the first Scottish Parliament; and as Justice Minister, being on the receiving end of the decision in Starrs & Chalmers on the use of temporary sheriffs – the first decision to go against the Government after incorporation of the ECHR into our domestic law.

I can assure you that my focus tonight is very much on the law. There will be plenty of days and nights devoted to the politics of this issue. I believe it will serve the whole debate well if we concentrate today on the legal landscape within which Scotland’s constitutional future is set.

The UK Government’s conclusion on the legal powers of the Scottish Parliament is that, at present, it cannot legislate for a referendum on independence. The Scotland Act 1998 is clear: the Scottish Parliament cannot legislate on matters reserved to the UK Parliament. Among the matters listed in Schedule 5 to the Scotland Act as reserved is the constitution, including “the Union of the Kingdoms of Scotland and England”. Any Act of the Scottish Parliament that relates to a reserved matter is “not law”.

Before I go into this in more detail I would emphasise that the Secretary of State published a consultation paper last week with detailed proposals for how we can facilitate a legal, fair and decisive referendum. That consultation period continues until 9 March 2012, and I hope that by the end of this evening’s proceedings I will have encouraged many of you to respond to the consultation. If you don’t already have your own copy, there should be one available for you to take away at the end. It is also on the website of the Office of the Advocate General.

As the consultation document makes clear, the UK Government will not stand in the way of a referendum on independence. And the Government is clear that it is for the people of Scotland to decide the country’s constitutional future.

I will explain why the law, as it stands, prevents the Scottish Parliament from legislating for a referendum.

However, I have always believed that the role of any lawyer is not just to give a view on the law but also to identify a way forward within the law.

And so as well as explaining why the Scottish Parliament cannot, at present, legislate for a referendum on independence, I will explain how a legal, fair and decisive referendum could be held.

We have identified our preferred way forward as a Section 30 order to transfer powers to Holyrood. If I were the First Minister – and I was Acting First Minister a couple of times – and I wanted a legal referendum on independence then I would be snatching the hand off the person offering me a Section 30 order. No hands have been snatched thus far but I remain optimistic that this may well be the solution to the problem we confront tonight.

Although this issue is the talk of the political steamie this month, it has in fact been part of the devolution debate since 1998 or earlier. And, if we go back to the debates in Parliament on the Scotland Bill in 1998, the conclusion that a referendum Bill would be outside the competence of the Scottish Parliament should not be surprising.
It is worth reading the Hansard reports of those debates in the heady days of May 1998 when the Secretary of State for Scotland at the time, Donald Dewar, set out his understanding of the constitution reservation in Schedule 5. You will also see contributions from Mr Salmond, as Member of Parliament for Banff and Buchan, as well as the Member for Orkney and Shetland, Jim Wallace. Other dramatis personae include Dominic Grieve, now Attorney General for England and Wales, and Edward Garnier, now Solicitor General for England and Wales.

It seemed clear to us then that the Union was to be a reserved matter, and a referendum on the Union would not be within legislative competence. For example, in one exchange, Michael Ancram (at that time Conservative MP for Devizes) asked Donald Dewar if a referendum on Scotland’s future in the United Kingdom would be within the competence of the Scottish Parliament. Mr Dewar replied:

“If one assumes that that is a way of changing the constitution, no, it is not in the power of the Scottish Parliament to change the constitutional arrangements.”

Mr Grieve then pointed out that clearly, a referendum in itself would not be a constitutional change but a mechanism of consultation, so “would the holding of a referendum be within the competence of the Scottish Parliament?”

Mr Dewar replied:

“A referendum that purported to pave the way for something that was ultra vires is itself ultra vires. That is a view that I take, and one to which I will hold”.

Of course, just because Donald Dewar said, when taking the Bill through the Commons, that the Scottish Parliament could not hold a referendum on independence, that does not, as a matter of law, make it so. That was a point I made during a subsequent debate on 19th May 1998, when I suggested that “..it would be better if the matter were cleared up in the Bill” And I continued, “Even the hon Member for Banff & Buchan (Mr Salmond) seems to accept that facilitating a referendum could not be achieved by legislation”

I went on to refer to an article that I had glanced at in that day’s edition of the Scotsman which said: ‘Mr Salmond said this could be done as long as the referendum was not set up by an act of the Scottish Parliament, which could be challenged as being outwith the competence of Holyrood.’” I then continued, “No doubt if there were some other way – if a referendum were sponsored by Stagecoach for example – a referendum could go ahead.”

It may be only fair to record that in a later exchange, Mr Salmond challenged me to express a view on what I meant by clarity; which prompted the intervention by the now Solicitor General, Mr Garnier,

“He is a Liberal – he does not have views.”

That debate took place on the government amendment which inserted the reservation of the “Union of the Kingdoms of Scotland and England.”

Almost fourteen years on we are challenged by that legal question. But these debates provide a starting point – I think it is fair to say that what Parliament intended in passing the Scotland Act was to reserve decision making on any further devolution of power, or independence, and it would be surprising if the Act had not achieved that aim.

The UK Government’s view is that it did achieve that aim. My view, in more general terms, is that the Scotland Act represents a remarkable constitutional achievement, and although it is by no means an easy read in some places – it is admirably well drafted.

It is no secret that I campaigned for devolution for many years before the Scotland Act became law. Along with my party I recognise the settlement as a constitutional achievement. It is a settlement which reserves powers to the Westminster Parliament, including the constitution, and it creates a Scottish Parliament which is subject to law, and has limits to its competence which may be challenged in a court of law. It is worth bearing in mind that that settlement has already been the subject of a referendum: the creation of a Parliament with limited – albeit wide – powers, subject to the rule of law, was endorsed by the Scottish people in a referendum held in September 1997.

There have of course, been elections since then, with the Scottish National Party forming a minority administration in 2007, and, in May last year, gaining a full majority in Holyrood. But, if I understand their position correctly, it is accepted that they could not unilaterally end the Union. Nor could the Scottish Parliament pass legislation to that end. This position is accepted by the Scottish Government in their 2007 Paper, “Choosing Scotland’s Future”. “At present the constitution is reserved,” it says at one point, “but it is arguable that the scope of this reservation does not include the competence of the Scottish Government to embark on negotiations for independence with the United Kingdom Government.”2 The consultation paper also acknowledges3 that legislation for a referendum could be passed by the UK Government, making detailed provision for the holding of a referendum, setting out the question and other arrangements, or giving Ministers (Scottish or UK) the power to make secondary legislation on the details of a referendum.

So, I have explained that the legislative competence of the Scottish Parliament to legislate for a referendum has been the subject of some debate since the conception of the devolution settlement, and I have summarised the UK Government’s view of the legal position. It might be helpful if I expand on that view.

The Union is one of the reserved matters listed in Schedule 5 to the Scotland Act, and, by virtue of section 29 of that Act, legislation enacted by the Scottish Parliament is “not law” if it is outside the legislative competence of that Parliament. It is outside legislative competence if it “relates to reserved matters”. The question whether a provision “relates to” a reserved matter is to be determined by reference to “the purpose of the provision, having regard (among other things) to its effect in all the circumstances.”

So, of course, an Act to bring about the end the Union would “relate to” the Union and bringing an end to it would be its purpose – it would be outside competence. What then, about a referendum on the Union? It seems to me that a referendum, “advisory”, “consultative” or whatever, about the Union, would relate to the Union. That seems clear both as a matter of common sense, and on a straightforward reading of the plain words of the statute.

A referendum must do something, and mean something, otherwise it is hardly a proper use of public money. It would not have a purpose in its own right and it is not merely an opinion poll – a referendum is, or at least purports to be, a form of political decision making, where a decision is best made directly by the public rather than by their representatives in Parliament. A referendum is not, in our system of government, “legally binding”, (although there are instances of referendums being devised which have direct legal effects – the Parliamentary Voting System and Constituencies Act being the most recent example – that Act, setting up the AV referendum, provided for certain things to happen on receipt of a yes vote in the referendum). It is axiomatic to say that Parliament cannot bind itself – it is always free to change its mind. But a referendum does involve a decision being made, and the result, especially if it is not marginal or ambiguous, is hard for a democratic government to ignore.

Of course the Scottish National Party know this. An “advisory” referendum is a wolf in sheep’s clothing, and (to mix metaphors) the description of the referendum as “advisory” or “consultative” is a red herring. We know their aim – quite honestly and openly – is to achieve an independent Scotland, by democratic and constitutional means. They have set out their stall quite clearly on that point, and one need look no further than their manifesto, published for the election in May last year in which they won so convincing a majority: it states quite clearly that the result of a yes vote would mean that Scotland becomes an independent nation.

I mentioned section 29 of the Scotland Act, and the fact that a provision in legislation is “not law” if it “relates to” reserved matters. If we look at section 29(3) we see that the question of whether a provision relates to a reserved matter is to be determined, as I said earlier, by reference to “the purpose of the provision, having regard (among other things) to its effect in all the circumstances.”

The plain words of the statute seem to me to be quite clear – but, in addition we have had, since 2010, some guidance from the Supreme Court on the purpose test. You will, of course, be aware of the case in which the Supreme Court gave detailed consideration to the operation of section 29 of the Scotland Act, and the purpose test - Martin and Miller v Lord Advocate.4 The Court was considering whether a provision in an ASP,5 which purported to raise the sentence for offences tried summarily to twelve months, was outside the legislative competence of the Scottish Parliament because it ‘related to’ a reserved matter, that is, the Road Traffic Acts (the appellants had been convicted of road traffic offences and sentenced under the ASP). The court was divided on whether the provisions were within competence, but, of relevance to the matter which concerns us now, there was a degree of unanimity as to how the purpose test should be applied. Lord Hope, for example, said that:

“…when consideration is being given to the “purpose” of the provision, regard is to be had to its effect “in all the circumstances”. One of the circumstances to which it is proper to have regard is the situation before the provision was enacted, which it was designed to address. Reports to and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, the policy memorandum that accompanied it and statements by Ministers during the proceedings in the Scottish Parliament may all be taken into account in this assessment.”6

That view would lead us to the conclusion that we should look at the broader political context of a provision in legislation, rather than its immediate consequence. Lord Rodger said something along similar lines:

“Sometimes the clearer indication of the purpose of a provision will be found in a report which gave rise to the legislation or in a report of one of the committees of the Parliament. But very often the purpose of a provision will be clear from its context in the Act in question.”

Lord Walker, Lord Brown and Lord Kerr made similar points – Lord Brown and Lord Kerr noting that one would expect the purpose of a particular provision is to bring about a desired effect. So, what would be the ‘desired effect’ of a referendum brought forward by the current administration in Scotland? Surely, it would be that Scotland becomes an independent state, or, at least, that its constitutional status would change? In this case, to determine purpose, we would not have to look further than the manifesto – not to mention countless speeches and statements - of those who would be proposing the legislation.

If, as the law currently stands, the Scottish Government were to proceed with this legislation, it would be open to challenge in the courts. It is the view of the UK Government that such a challenge is likely to be successful. It could be initiated in the Court of Session by any individual or organisation which could demonstrate sufficient interest to bring proceedings. The challenge could invalidate the outcome of the referendum, it would cause delay, and it could stop any referendum from happening in the first place.

I expect that if you are interested in Constitutional Law, particularly as it relates to Scotland, you will be familiar with the judgment of the Supreme Court in the AXA Insurance7 case last year. The Justices of the Supreme Court had some important and significant points to make about the Scotland Act and the extent to which Acts of the Scottish Parliament are subject to review by the courts, but in doing so, they were also responsible for a significant development in the law of the standing of parties to a court action in Scotland. To summarise briefly, Lord Reed said, in his judgment, that

“The time has come when courts should cease to use the inappropriate terminology of title and interest and should refer instead to standing, based upon a sufficient interest.”

His view, supported by his colleagues, was that the law on standing had been based on a private law approach. That was misconceived, and, moreover, it had inhibited the development of public law in Scotland. What we have now, as a result of AXA Insurance, is a situation where the law of standing in Scotland is now more closely akin to that of the rest of the United Kingdom. The long and the short of it is, that it is now easier for litigants in public law cases to demonstrate the degree of interest which would be sufficient to give them standing before the courts. The implications for the risk of challenge, in court, to a referendum Bill in the Scottish Parliament, must be obvious.

You will also be aware, from AXA Insurance and other litigation in the Court of Session,8 that the process of taking these cases through courts can be time consuming (and, of course, expensive). Anyone with experience in Government will know how difficult a legislative timetable can be. In the case of legislation in a devolved legislature, a third party challenge can delay and derail legislation, while the appeal process is worked through.

Indeed, earlier this week the Scottish Government issued a press statement in which it is stated:

“Following discussions with retailers, the need to notify the European Union of the revised regulations and an ongoing legal challenge by Imperial Tobacco , the Scottish Government has decided to defer the ban’s implementation date for large stores of April 2012.”

The ban in question relates to the display of cigarettes in shops, legislated for in the Tobacco and Primary Medical Services (Scotland) Act 2010.

The effect of such a challenge can be a kind of legislative limbo, where provisions which might be important and necessary are held up while a court decides whether the devolved legislature has the power to make the legislation, or whether it must be made by the UK Parliament.

Against such a background, the United Kingdom Government thought it far better to identify a way forward which would provide a solid legal basis for the referendum to take place, without resort to courtroom wrangles. Hence the Consultation paper published last week.

I referred earlier to statements which the Secretary of State and I made in Parliament last week, setting out the Government’s understanding of the legal position.

Since that statement was made there has been, as you would expect, an enormous quantity of printers’ ink expended on this issue. But I have been pleased to note, in the papers, in the law blogs, and in Parliament, some support for our legal conclusions from a fairly diverse range of people. That includes my predecessor, Lord Davidson (Advocate General under the Labour Government), Glasgow University’s own Professor Adam Tomkins, David Pannick QC, writing in the Times yesterday, and also, I was intrigued to note, Jim Sillars.

But some of you may be thinking that all legal propositions may be subject to dispute. I appreciate that other lawyers and commentators will, in good faith, reach a different conclusion. What I would find hard to believe, though, is that those who take a different view would consider that the matter is beyond doubt and could never be challenged in the courts. Few, if any, of the comments of those who have sought to make the case for existing competence have done so with certainty. This is such an important area that it should not be allowed to have room for uncertainty.

That is why this Coalition Government has offered to do what is required, by an order under section 30 of the Scotland Act, to ensure that a referendum is conducted by the Scottish Government in a way which is legal, fair and decisive. It is recognised that a party which openly declares itself to be a party in favour of independence, and which aimed to hold a referendum on that subject, won a significant majority of seats in the Scottish Parliament last year. We do not ignore that simple political fact. The question is how, within the legal framework, do we bring about that referendum?

The UK Government could, of course, include provision for a referendum in primary legislation – there is a vehicle for such provision in Parliament now in the shape of the Scotland Bill, and this option is explained in more detail in our consultation paper. However, the Scotland Act 1998 already includes provision for changes to be made to the devolution settlement, by way of order-making powers. The UK Government believes that the power in section 30 of the Scotland Act would be an effective way of delivering a legal referendum on independence. Section 30 Orders are already an established route to modifying the legislative competence of the Scottish Parliament.

As well as giving the Scottish Parliament the necessary powers, a section 30 Order could set parameters for a referendum. For example, it could ensure that the rules set out in the Political Parties, Elections and Referendums Act 2000 would apply to the referendum (rules which have already been tried and tested in referendums, most recently in a UK-wide referendum on the voting system for the House of Commons).

The Order could also ensure that the referendum benefits from the experience, and established impartiality of the Electoral Commission. That Commission was established by the Political Parties, Elections and Referendums Act 2000, and it has responsibility for the conduct and regulation of referendums held under an Act of Parliament. It has an office in Scotland and already enjoys oversight of elections to the Scottish Parliament, the UK Parliament and the EU Parliament, as well as having a role in local government elections in Scotland. Its board of Commissioners includes the former distinguished Presiding Officer of the Scottish Parliament and SNP MSP, George Reid.

It would have a number of duties in an independence referendum, and these are set out in more detail in our consultation paper.

The Electoral Commission is a well-established and independent body, and it has the experience and expertise to ensure a fair referendum. I should stress that the section 30 Order route would allow us to make any adjustments to the role of the Electoral Commission in this particular referendum. The most obvious example would be to ensure that the Commission reports to the Scottish Parliament on this occasion (rather than the UK Parliament) – it is, after all, the majority in the Scottish Parliament which proposes a referendum on this question.

Members of the UK Parliament, and not only those representing Scottish constituencies, also have a interest in ensuring a fair, legal and decisive referendum. That is one reason why the use of a section 30 Order is attractive – the order, which would give the Scottish Parliament new powers, would have to be approved by both Parliaments. Both governments would need to agree the terms of the Order (there is a draft order annexed to our consultation paper). So, both governments and both Parliaments would be able to comment on the proposals, and give their approval.

Our consultation paper sets out how we can navigate these difficult constitutional waters, within the law, and taking all interests into account. I hope that the forthcoming talks are productive – it would surely be a matter of great concern if the Scottish Government, as a democratically elected body, were to seek to challenge the Rule of Law.

Following the publication of the UK Government’s legal view, I saw some commentaries to the effect that these were legal technicalities and shouldn’t get in the way of the Scottish Parliament going full steam ahead. That is why I referred earlier to the importance of upholding the Rule of Law. As John Locke said in the 17th century, “where-ever law ends, tyranny begins”. I have borrowed that quotation from Lord Bingham’s book, “The Rule of Law”, which I would commend to anyone interested in law, particularly those who think the Rule of Law may be a woolly or meaningless concept. Lord Bingham defined the term in a way which may become authoritative. He said:

“The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.”9

Lord Bingham goes on, in the book, to expand the definition by describing eight principles – I won’t repeat them all here, but, one of those principles, the fourth, which is fundamental to the Rule of Law, is that the law stands above the executive arm of government – “be you ever so high, the law is above you”, as Thomas Fuller – later memorably quoted by Lord Denning - said. Lord Bingham’s fourth principle is:

“Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.”10

As Ministers and public officers, we look to the courts to adjudicate questions of whether the limits of one’s powers have been exceeded. I know from personal experience, including experience as a Scottish Minister in a devolved administration, what it is like to be on the receiving end of an adverse judgment from the courts. But no good ever comes of venting one’s frustrations on the referee.

Indeed, I would fully expect the Scottish Government to share my view about the importance of the rule of law. It might be useful to place on record the fact that, without any front page or even inside page publicity, lawyers in my department engage on an almost daily basis with Scottish Government lawyers on issues, to ensure that legislation or orders proceed on a basis consistent with the devolution settlement, or to identify means, such as section 104 orders, where difficulties can be overcome.

So when people have commented recently about lawyers, or legal technicalities, getting in the way of politics and policy; to my mind, that misses the point that, in this country, politics is conducted under the Rule of Law. I thought this point was made eloquently by Lord Mackay of Clashfern in evidence to a Parliamentary Committee. He was speaking in the context of another difficult and controversial matter - the prisoner voting rights issue, but, more specifically, on the extent to which Parliament and the courts should have regard to the jurisprudence of the European Court of Human Rights):

“I would just like to say that our country has embraced the rule of law for many, many generations and it still is bound by the rule of law. Therefore, when we have taken on legal obligations, as we have under the Convention of Human Rights and Fundamental Freedoms in Europe, the rule of law requires us to obey the courts that are set up under that Convention whose judgments are binding. I do not myself regard politics and law as, in any way, in conflict because politics in our country should be carried on under the rule of law. Indeed, that is how it happens.”

Politics in this country must be carried on under the Rule of Law – that is, in itself, a good enough reason for this Government to take steps to ensure any referendum on independence brought forward by the Scottish Government complies with the Rule of Law, and proceeds on a sound statutory basis.

I have come to talk to you about Constitutional Law today, and there will be other occasions to speak about the strengths of the Union, and the reasons why this Government believes so passionately in its continuation. In the months ahead, we will hear the economic case for the Union, and we will hear more about its many achievements. But let us not forget that stable constitutional democratic government, under the Rule of Law is one of those achievements. Nations with a long history of conflict have been able to live in a peace which our ancestors would have thought impossible. This has been achieved by constitutional arrangements which allow the distinctive institutions of different nations within the Union to be retained. Scots law has not simply survived the Union, it has developed within that Union, and contributed to the development of jurisprudence in other jurisdictions of the United Kingdom. Many of our British achievements have been in the sphere of law: the development of the Rule of Law, the campaign which ended slavery, the European Convention on Human Rights, even the devolution settlement itself.

Published 20 January 2012