The Scottish Question — All the Developments, January-March 2012

The dominant constitutional story of the first quarter of 2012 has been the ongoing and unresolved argument over Scotland’s constitutional future.

In this post I summarise all the key developments.

1. Political background

Our story starts back in May 2011 when the Scottish National Party (SNP), led by Alex Salmond, won an unprecedented overall majority of seats in the Scottish parliamentary election. The electoral system devised for the Scottish Parliament was supposed to prevent majorities. In the previous elections (of 1999, 2003 and 2007) this worked: from 1999-2007 the Scottish Government was a coalition of Labour and Liberal Democrat, and from 2007-11 the Scottish Government was an SNP minority administration.

The SNP is in favour of independence for Scotland. It wishes to see an end to the Union of 1707 and for Scotland to leave the United Kingdom, becoming an independent state. The Labour, Liberal Democrat and Conservative parties are all opposed to this policy: in this (loose) sense, they are all Unionist parties (although this label applies comfortably only to the Conservative party: the Liberal Demcrats are really federalists, and the Labour party, while being strongly in favour of maintaining the Union, has come to think of itself as a Unionist party only recently). Nonetheless, I shall refer to all three parties as Unionist: such has now become common practice in Scottish political commentary.

The SNP’s policy of independence was never likely to be realised in the 2007-11 Parliament because there was a Unionist majority in the Scottish Parliament: the SNP administration was a minority government. This was the key change brought about by the results of the May 2011 election: there is now an SNP majority in the Scottish Parliament.

The SNP’s election manifesto for 2011 promised that there would be a referendum on Scottish independence during the lifetime of the present Parliament (which will have a five year term, running until 2016).

2. Legislative competence

Many constitutional and legal questions arise as a result of this. The first is whether the Scottish Parliament has the legislative competence under the Scotland Act 1998 to pass an Act that would authorise such a referendum. On this question, legal opinion is split. The UK Government insists that the Scottish Parliament does not have such legislative competence. The Scottish Government disagrees. The House of Lords Constiution Committee agrees with the UK Government. So do I. So does Lord Pannick QC (the Times, 19 January 2012), Iain Jamieson (the Scotsman, 20 January 2012), Aidan O’Neill QC and Prof Alan Page of Dundee Law School. But some of my colleagues in Scottish law schools prefer a different view. The House of Lords Constution Committee considered this view and explained why it should be rejected.

In this post I will not rehearse these arguments in detail. The previous paragraph is full of links that will take you directly to the relevant documents, where the arguments can be studied at length. All I will do here, on this issue, is to offer an outline.

The argument that the Scottish Parliament does not have the legislative competence to pass an Act triggering a referendum on independence is founded on the Scotland Act 1998. Section 29 of that Act provides that Acts of the Scottish Parliament (ASPs) are “not law” if they relate to reserved matters (or if they are otherwise outside competence). The Union of the Kingdoms of Scotland and England is expressly listed in Schedule 5 to the Act as a reserved matter. Any referendum on independence would relate to the reserved matter of the Union: any ASP that sought to trigger such a referendum would therefore relate to a reserved matter and would, for that reason, be outside competence and “not law”.

The counter-argument relies on two main points to seek to undermine this conclusion. First that under section 29(3) the question of 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” (emphasis added). The purpose of an ASP that triggered a referendum on Scottish independence might be simply to test the opinion of the people of Scotland as to whether or not they would prefer independence, and its legal effect might be zero: a positive result in a referendum that was in reality no more than an opinion poll could not, of itself, change the law. The second counter-argument is that the bare words of section 29 and Schedule 5 should be interpreted “generously and purposively”, given that the Scotland Act is a “constitutional statute”, and given the instruction in section 101(2) of that Act that provisions of an ASP are “to be read as narrowly as is required” in order that they fall within competence. This aspect of the counter-argument relies on dicta of the House of Lords in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, considered in the book at pp 88-91.

Each element of the counter-argument is questionable. As to the first, is it not effectively met by the simple words of the SNP’s own manifesto from 2011, in which it was written (at p 28) that a yes vote in the referendum “will mean that Scotland becomes an independent nation”? Thus, the purpose of the referendum is not to test opinion, but to make a decision as to whether – or not – Scotland should leave the UK and become an independent state; and the effect of any yes vote in the referendum will be to deliver independence, a decision that has ample legal effects. As to the second element of the counter-argument, this cannot survive the judgment (handed down on 2 February 2012) of the First Division of the Inner House of the Court of Session in Imperial Tobacco v Lord Advocate [2012] CSIH 9. The First Division was unanimous that Robinson should be distinguished and that a “generous” or “purposive” approach to the interpretation of section 29 and Schedule 5 would not make it more likely that matters would be read as falling within competence. The reasoning of the court is summarised at paras 15 and 24-29 of the report of the House of Lords Constitution Committee.

3. The section 30 solution

The UK Government has no desire to use the law to prevent the Scottish Government from having its referendum. On the contrary, it wants to do precisely the opposite. That is, it wishes to use the law to enable the Scottish Government to stage the referendum that it clearly has a political mandate now to hold. Under section 30 of the Scotland Act 1998, the Crown may by Order in Council make amendments to the list of reserved powers contained in Schedule 5 to the Act. No such section 30 order can come into force until it has been approved by both Houses of the UK Parliament and by the Scottish Parliament.

On 10 January 2012 the UK Government published a consultation paper entitled Scotland’s Constitutional Future (Cm 8203). It contained a draft section 30 order that would confer on the Scottish Parliament the legislative competence to pass an ASP triggering a referendum.

The Scottish Government gave a mixed reaction to the draft section 30 order. They reacted angrily to that fact that, as they saw it, the UK Government was trying to dictate the terms on which the referendum could be held. In particular, argument broke out between the two Governments over the following matters: the date of the referendum (the UK would prefer 2013; the Scottish Government would prefer the autumn of 2014); the franchise (the Scottish Government wants 16- and 17-year olds to be eligible to vote in the referendum; the UK Government wants an existing franchise to be used, such as the franchise for Scottish parliamentary elections); the extent to which (if at all) the Electoral Commission should oversee the referendum (the Electoral Commission oversaw both the referendums held in 2011, but it is a UK body, not a bespoke Scottish body); and the question(s) to be asked on the referendum: should the referendum be confined to a question about independence, or should a second question also be asked about whether Scottish devolution should be enhanced (or maximised), substantially increasing the powers of the Scottish Parliament whilst keeping Scotland within the Union (see further on this issue below).

The Scottish Government set out its views in a consultation paper of its own, published on 25 January 2012 and entitled Your Scotland, Your Referendum. The Scottish Government’s consultation will not close until May. The UK Government’s consultation closed in March and its results are due to be published in April.

4. Where are we now?

At the same time as all of this has been happening, the Scotland Bill has been making its gradual way through the House of Lords. This is an important but generally overlooked Bill, which will implement many of the recommendations of the Calman Commission (see pp 229-31 of the book). Included within the provisions of the Bill are significant clauses that will enable the fiscal powers of the Scottish Parliament to be extended without the need to resort to further primary legislation at Westminster. This is important not least because enhancing the fiscal powers of the Scottish Parliament is one element of “devo-plus”, which is preferred by some commentators as a superior alternative to independence. Whether “devo-plus” should go beyond the powers contained in the Scotland Bill and, if so, how far beyond the Scotland Bill “devo-plus” should go are open questions around which there is precious little consensus at the moment either in Scotland or in Government.

Between “devo-plus” and independence there lies yet another alternative for Scotland: so-called “devo-max”, also referred to in some quarters as “full fiscal autonomy”. As I write this, “devo-max” is the preferred policy of no political party, albeit that there are some in the SNP who consider that it may be another useful stepping stone on the route to independence. Indeed, it is sometimes referred to as “independence-lite”.

5. And where next?

To date there has been no agreement between the two Governments on any draft section 30 order. Most of the disagreements can be relatively easily dealt with. It may well be, for example, that the UK Government will drop its objections to the timing of the referendum and to the extension of the franchise to 16- and 17-year olds. Likewise, it may well be that the Scottish Government will drop its objections to the Electoral Commission having the power to oversee the referendum. The real sticking point may be over the question: not the precise wording of the question, but this issue of whether there should be just the one question on independence or also a second question on some variant of devo-plus or devo-max.

The House of Lords Constitution Committee considered this question and concluded that this would be inappropriate (see paras 33-45 of its report). I wrote a personal submission to the UK Government’s consultation exercise (which you can read here: AT response to HMG on Scotland), in which I argued at some length that the referendum must be concerned only with independence. Arguments about the future development of devolution need to be dealt with, but they need to be dealt with separately and in a different way from arguments about independence.

Clearly, we have not heard the last of these arguments yet. This is set to be the big constitutional question of 2012.



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