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Referenda are very much in the air at the moment: with Greece’s Prime Minister first announcing and – then withdrawing – a proposal for a referendum on continued Greek membership of the Euro-zone; with British Euro-sceptics pressing for a referendum on the UK’s continued membership of the EU; and with Scotland’s First Minister, Alex Salmond, promising his SNP party conference a referendum on Scotland continued membership of the United Kingdom. The joy of referenda is that they by-pass the messy and complex compromises created in and by the mechanisms and institutions of government within Parliamentary democracies, and instead give “the people” the power to choose.
The underlying premise of referenda is, of course, that it is “the people” who are sovereign. And this is where the problem with the proposed Scottish referendum on independence comes in. The UK is a unitary state, not a federation. This remains the case even after devolution. Power devolved from the Westminster centre is power retained; rather than power ceded, and sovereignty divided. If the United Kingdom, as a constitutional monarchy, allows for the notion of a “sovereign people”, then it encompasses all the peoples of the United Kingdom. On this constitutional model, the “Scottish people” are no more sovereign than the “people of Basingstoke” or the “men of Kent” or the “women of Wales”.
And it is this unitary constitutional model which is reflected in the terms of the Scotland Act 1998 which created the devolutionary structures north of the border. Section 1(1) of that Act provides that “there shall be a Scottish Parliament” because the Crown, acting on the advice of the Westminster Parliament, so wills it; not because the “Scottish people” brought it into being. The Scotland Act modifies the terms, but maintains the fact, of union between Scotland and England: section 37 states that “The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act”.
Just as the Scottish people are not sovereign, neither is the Scottish Parliament. The Westminster Parliament has set legally enforceable limits on the power of the Scottish Parliament by providing in Section 29 of the Scotland Act as follows:
29.— Legislative competence
(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
(2) A provision is outside that competence so far as any of the following paragraphs apply—
(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
(b) it relates to reserved matters …
And Paragraph 1 of Schedule 5 to the Scotland Act states that:
The following aspects of the constitution are reserved matters, that is—
(a) the Crown, including succession to the Crown and a regency,
(b) the Union of the Kingdoms of Scotland and England,
(c) the Parliament of the United Kingdom”
So any Act of the Scottish Parliament which “relates to” the union between Scotland and England, or the constitutional position of the Crown or the UK Parliament, will simply not be law because any such Act would be outside the legislative competence of the Scottish Parliament to pass. On the face of it, this presents an insurmountable legal obstacle to the Scottish Parliament enacting any law which would provide for an independence referendum to be held in Scotland. How else might any such measure, in terms of both its purpose and effect (see Martin and Miller v HM Advocate [2010] UKSC 10), be described other than as “relating to” these reserved aspects of the constitution ? As Lord Sewell, the promoter of the Scotland Bill in the House of Lords, advised Parliament:
“[A]s the Bill stands the Scottish Parliament will not be able to legislate to hold a referendum on independence as the union of the kingdoms is already a reserved matter. …. [L]egislation for a referendum on independence would be legislation about whether the Union should be maintained and so be beyond the competence of the [Scottish] parliament.”
Further, the decision of the UK Supreme Court in AXA General Insurance Limited and others v The Lord Advocate and others [2011] UKSC 46 has radically loosened the requirements of standing in public law cases in Scotland such that now any individual or group with a sufficient interest may bring a petition for judicial review to the Court of Session in order to prevent a breach by a public body of a duty owed by that body to the public, even where the excess or misuse of power affects the public generally. The AXA case itself involved proceedings challenging the lawfulness of an Act of the Scottish Parliament which had been passed on 11 March 2009, received the Royal Assent on 17 April 2009 and come into force on 17 June 2009. These court proceedings, which were ultimately unsuccessful, involved two and half years of litigation from the initial hearing before the judge at first instance to the final decision of the UK Supreme Court (and that was considered by normal Scottish standards, to have been completed within record time).
The Scottish Government is well aware of the potential for legal challenge to any independence referendum Bill brought before – or Act passed by – the Scottish Parliament. But it may be that in pressing forward with legislation that is certainly open to such challenge – and which has a high chance of being struck down by the courts as not law – political advantage may be sought to be drawn from it. The issue of the lawfulness of any independence referendum measure will ultimately have to be determined by the UK Supreme Court. But both the First Minister, Alex Salmond and the Scottish Cabinet Secretary for Justice, Kenny MacAskill have “form” in relation to role of the UK Supreme Court in Scottish matters. The latter has said that “we’re undermined routinely by a court that sits in another country and is presided over by a majority of judges who have no knowledge of Scots law, never mind Scotland…. a court in London that is made up of a majority of judges who do not know Scots Law, who may have visited here for the Edinburgh Festival.”. The former, defending these remarks, has said “you need a succession of incidences of things that are happening before the extent of the encroachment and the vulnerability of the [Scottish] Parliament really hits home.…. If we are to be scrutinised in terms of the overall scrutiny then let it be by the [European] court [of Human Rights] that scrutinises another 47 jurisdictions and not by the Supreme Court in England…”
Ultimately, the only way to be sure that a referendum can lawfully be held on the question of the dissolution of the union between Scotland and the rest of the UK would be for the Westminster Parliament to pass the necessary legislation. But if a referendum is indeed properly to be understood as a consultation with the “sovereign people” to which Parliament is answerable, then any such “dissolution referendum” cannot be confined to a consultation with the people of Scotland alone but must properly extend to all the peoples of the United Kingdom – not least because Scottish independence will have profound effects on their own future politics (notably as regards the loss of the block Scottish Labour, or anti-Tory vote in Westminster). It is not inconceivable that the result of any such UK wide referendum would be that the electorate in England (fed on tales of their constant subsidising of Scottish spending, and wearying of the anti-English sentiment that lies beneath so much Scottish public discourse) would vote in favour of the dissolution of the Union, while a majority of the Scottish electorate would balk at independence. In this way might the SNP’s primary political aim be achieved, even against the wishes of the Scottish people. That’s why we need to talk about the referendum.
In response to some of the comments below I have attached an earlier paper on this topic: SOME REFLECTIONS ON THE SCOTTISH CONSTITUTION AND THE ROLE OF THE UK SUPREME COURT
21 comments
John Ericsson said:
04/11/2011 at 15:26
How do you reconcile your opinion with the 1689 Claim of Right which enshrines the right of the people of Scotland to select its rulers, in effect that the people are sovereign.
That, as preexisting Scottish legislation is upheld by the 1707 Treaty of Union, therefore is still in effect.
In short, a Westmister Act may say a Duck is a Fish, but that does not make it so
David W Cobb said:
13/11/2011 at 11:20
The Scottish Parliament appears to have been more amenable to the doctrine of Implied Revocation, and in assenting to the Act of Union, was the Claim of Right not impliedly revoked?
A good point all the same, but it seems to me that Aidan has played the Joker in terms of the Scotland Act 1998. One thing Salmond would not want is a Referendum bogged down in the Courts on legality issues, as the Parliamentary Elections might serve the same purpose, and if the SNP Majority was lost in the process, the result would be no Referendum.
High Stakes indeed, and Gideon Osborne’s latest Speech raises them a little. A Government which offers the alternative of “take a 15 minute Tea/Toilet Break/Strike” or we change Trade Union Law (the problem there is one of their own making, incidentally) might well be daft enough to launch its own Referendum in order to save us Scots from ourselves.
Interesting times…
ObiterJ said:
04/11/2011 at 15:46
A most interesting article.
However, would it not make sense to actually convert the UK into a “federation?” Could be far preferable for all parties than separation.
http://obiterj.blogspot.com/2011/10/scotland-and-european-union-tricky.html
ratzo said:
04/11/2011 at 17:13
Its true that a Unitary model is bluntly expressed in the 1998 Act, but technically, the UK is a Union state, not a Unitary state, and that surely has consequences for notions of popular sovereignty in respect of different constitutional traditions.
But perhaps you’re merely re-asserting that the Crown-in-Parliament is the first and final constitutional tradition in the UK.
There may also be equivocation in Sewel’s argument about a referendum. An executive action is not what’s envisaged by the Scottish referendum. It could be that Westminster/UKSC might find itself in the position of striking down anything that merely threatens to talk about the Union. That might not make a lot of sense to most people.
JR Tomlin said:
06/11/2011 at 01:33
A more ignorant post I have rarely been subjected to. The UK is not and never has been a unitary state. If that were the case, there would never have been separate and distinct Scottish laws and educational system and the monarch would not have been separately crowned as the sovereign of Scotland.
You also seem completely unaware that the only laws applicable to this situation are not those of the UK. There are numerous international laws stating that a peoples has the right to self-determination. And if the Scots decide to exercise that right, what are you proposing to do? Send in the tanks?
Comparing the people of the nation of Scotland with “people of Basingstoke” is both insulting and at best deliberately being stupid. I very much suspect that you are aware how absurd such comparisons are. The “people of Basingstoke” do not have a history as one of the oldest nations in Europe.
In a UK wide election, since the population of England outnumbers that of Scotland by more than 10 to 1, what you are saying is that the ENGLISH have to decide the constitutional status of the Scots.
I don’t think so. I HOPE that Westminster has learned a thing or two since the insanity of the Irish wars. Trying to say that Scotland can be FORCED to remain part of the UK unless the people of England decide to kick them out is beyond insane.
Aidan O'Neill QC said:
07/11/2011 at 14:50
I have examined the issue of a continuing and distinct Scottish constitutional tradition in a number of pieces including:
“Limited Government, Fundamental Rights and the Scottish Constitutional Tradition” (2009) Juridical Review 85-128
and
“The law that dare not speak its name: the UK Supreme Court and the Scottish Constitutional tradition” in Marrani (ed.) Constitutional Change in France and the UK (Paris: Bruylant, 2012, forthcoming)
Canonising the Claim of Right 1689 as the foundation for the constitution of a contemporary Scotland is, to say the least, problematic given the virulent anti-Catholicism which animates it. It is difficult for example to argue for the compatibility of its terms, tenor and purposes with, say those of the anti-sectarian Offensive Behaviour at Football and Threatening Communications Bill currently before the Scottish Parliament. Similar criticisms may be made of some of the bases on which the Treaty of Union between Scotland and England was entered into to secure a Hanoverian succession to the Crown (no longer “of England” or “of Scots” but of the United Kingdom). In any event, the UK Parliament has never considered itself bound by the terms of the Acts of Union, and no court has ever struck down any provision of a UK statute on grounds of its breach of the pact of 1707.
But at least we are now talking about the referendum ….
ratzo said:
07/11/2011 at 16:57
Thank you for your reply to your critics Mr O’Neill. Alas, the largely inaccessible Juridical Review and a yet-to-be published chapter won’t be much use to us, for a while at least!
My best guess in the interim is that you reject the notion of Scottish popular sovereignty as a Buchananite myth (perhaps) and you never had any intention of hanging around to defend the doddery old Crown-in-Parliament with its notion of indivisible parliamentary sovereignty, expressed bluntly, as I said above, in the 1998 act.
If my guess is right, the value of the referendum for the disinterested is the constitutional test it provides for a Diceyan empiricism that has lost normative force; where politics may ultimately extert authority over law.
James Mackenzie said:
07/11/2011 at 20:50
I am a bit baffled by Aidan O’Neill’s argument. To me there is a semantic error here or else a missing step in the argument. Deciding to have a referendum is surely just canvassing opinion; the step that is ultra vires is to actually unilaterally change the Parliament’s powers. Canvassing opinion on what should be done is just good government; it is being done on the current Scotland Bill, with nobody complaining it is illegal. Alternatively the missing step is to argue that a referendum, as a means of canvassing opinion, is different from, say, an opinion poll. The difference is that a referendum is a binding decision and it is this bindingness that takes us in to the realm of the claim of right argument.
Alan Trench said:
08/11/2011 at 17:02
There are various groups who need to discuss a referendum; the public at large, lawyers, and also the two governments. Each government has a good deal to say about the referendum, but seems to be saying it only to itself or its own supporters. A serious intergovernmental dialogue is needed, rather than the fractured debate there’s been since 2007. As matters stand, there’s a serious risk of the Scottish Parliament passing a referendum bill that is then challenged before a referendum is held, or that is challenged after the poll. Either could create a dangerous level of constitutional uncertainty.
I’ve pointed out elsewhere the need for the sort of dialogue I suggest above (see http://wp.me/pGwzC-GF), and also the ease with which a practical solution could be found. Aidan argues in favour of a UK-called referendum; I think there are strong political reasons against that, as this is a cause supported by a majority at Holyrood but not at Westminster. An order under section 30 of the Scotland Act 1998 would be one way to ensure a referendum was within competence, but also called by Holyrood – and could be a means for imposing conditions, for example about the number of questions, the wording of the question or questions, and the timing.
Stuart said:
09/11/2011 at 21:53
Aiden – so you are suggesting that the “UK” (meaning England) goes against the wishes of the Scottish people and FORCES them to stay in the Union?
Wow. How did that work out in Ireland?
By the way, regarding your clip about religion, wasn’t it until recently illegal for a future UK monarch to marry a Catholic? Thankfully that law was updated, as I’m sure others will be – but by the people whose laws they were in the first place.
Terrence Foley said:
11/11/2011 at 01:48
The Scotland Act was preceded by a referendum.
Simply ignoring the result was technically an option.
Aidan O'Neill said:
14/11/2011 at 10:59
The post was written to raise discussion from the perspective of UK constitutional law. From the alternative Scottish constitutional tradition I had understood that the general analysis was not that the Scots were an oppressed people seeking self-determination from the colonial master, but rather that Scotland and England had entered a compact in 1707 to create a new State of Nations (rather than a Nation State). If this contractual analysis is sound, then it also follows from that – on contractual theory- that both parties to the contract have to agree to its termination. As one judge has written in relation to contract “an unaccepted repudiation is a thing writ on water”. That is why I think the “rest of the UK” dimension important in any discussion on the constitutional mechanics for Scottish independence. For such interest as it may have I attach an earlier paper – “Some Reflections on the Scottish Constitution and the Role of the UK Supreme Court” to the original post – which looks in more depth at some of the issues raised in the foregoing comments.
Helen H said:
12/01/2012 at 10:45
“In a UK wide election, since the population of England outnumbers that of Scotland by more than 10 to 1, what you are saying is that the ENGLISH have to decide the constitutional status of the Scots.”
Not the English – the people of England – a big difference. In the same way that the Scots will not get to vote in a referendum but the people of Scotland (which include quite a few people born in other parts of the Uk as well as elsewhere). The SNP is a national party for Scotland, not a Scottish nationalist party.
What do the Northern Irish think? Do they want to stay part of a smaller UK with England/Wales, or join Scotland? And what about the Welsh? It seems to me that a referendum does need to include the rest of the UK – to ask “what do you want to do if Scotland leaves the UK”?