Tuesday, 20 June 2017

Judicial Review of a Confidence and Supply Arrangement

An interesting story appeared in The Guardian today, in which it emerged that there may be an attempt to judicially review any agreement entered into by Theresa May's Conservative and Unionist Party and the Democratic Unionists. Having failed to secure an overall majority in the June election, May needs the DUP, at a minimum, to abstain on all major votes if she is to command the confidence of the House of Commons and to get crucial Parliamentary bills passed.

The central contention of those seeking to challenge a "confidence and supply" arrangement is that, if the UK Government were to make concessions of particular political or constitutional salience, it would undermine the duty of the British Government to be "rigorously impartial" as to the exercise of sovereign power with respect to the territory. This undertaking is contained in Article 1(v) of the Belfast Agreement.

I believe this challenge will fail, for several reasons:

This isn't the Government acting

A confidence and supply arrangement is not entered into by the UK Government. It is instead a political agreement, between political parties, to vote in certain ways in a Parliamentary assembly. There is, I think, an arguable case that a coalition agreement might be treated differently, because it forms the pretext-upon which government ministers are appointed from different parties. Ministers are clearly a part of the government and the presence of DUP ministers might reasonably have been thought an act of governmental partiality were the Irish nationalist community not also involved in the arrangement.

Crucially, however, commitment in the Good Friday Agreement is concerned with the obligation of governments to remain impartial; it does not commit every political party, or every member of the legislature, in the UK or Republic of Ireland to avoid alliances, even formal, with one or more Northern Irish political parties where there is common purpose or interest. The distinction between acts of government and acts of parliamentary caucuses is an important one.

The inference of the contrary position - that this is a governmental and not a party-political act - is that no government can ever rely-upon the voting or abstention of a sectarian political party from Northern Ireland in order to pass a piece of legislation. This, intuitively, does not seem tenable. It would defeat the whole point of Northern Ireland returning representatives to the Westminster Parliament in the first place. That they are there is for a purpose: while Government may be expected to operate with impartiality in how it exercises its power with respect to the six counties and the devolved government and two communities there, Parliament is not so bound.

The content of an agreement would not in fact compromise "rigorous impartiality"

Even if it is rejected that a confidence and supply arrangement is party-political rather than governmental, it still falls to show that the government's conduct would be unlawful. "Rigorous impartiality" is a bespoke phrase in the Good Friday Agreement. But what does it actually mean? It does not mean, surely, that a British Prime Minister cannot express a personal view that Northern Ireland should, in any border poll, choose to remain a part of the United Kingdom. The Conservative and Unionist Party, and its two Prime Ministers since the Agreement came into force, have never sought to conceal precisely this view. The clue is, in part, in their party's name. Clearly, then, adherence to a position on that question does not itself constitute falling short of "rigorous impartiality".

For an arrangement to compromise the impartial exercise of "the power of sovereign government" then, there must be something more substantial to it. The mere fact that a political agreement exists, and that it involves a sectarian party, does not mean that the UK Government is, by necessity, now partial concerning the question of "the power of sovereign government" in Northern Ireland. If an agreement saw the UK Government's programme undertake to act in ways that would (have a realistic prospect of) very clearly picking sides on an issue of contention being addressed at Stormont, or altered the protection of fundamental rights or some other part of the Belfast Agreement designed to protect the rights of nationalists/republicans in the six counties, we might reasonably conclude that "rigorous impartiality" has been fallen short of.

This would have to mean something like caving to a demand on parades or placing obstacles in the way of an Irish Language Act. Such commitments would likely, however, be in neither of the political interests of the Tories or the DUP. They are unlikely to be part of the agreement precisely because of how they would be received politically, regardless of any legal obligations.

This is not a domestic legal obligation

Perhaps more practically, the "rigorous impartiality" provision is in all likelihood not a (domestically) justiciable issue, or at any rate a subject matter to which the exercise of governmental power attracts considerable judicial deference. The Good Friday Agreement is in essence a treaty between two sovereign states. Its provisions, in and of themselves, are not legally binding in a UK court. The Good Friday Agreement does, however, have a slightly special relationship with the law in the UK in that it is directly referred to in the Northern Ireland Act as the multi-party, political, basis for the restoration of Northern Irish devolution. This allows judges to, among other things, take into account the intentions of the parties in that agreement when interpreting constitutional statutes and the content of their provisions. This makes the GFA different from, say, the Calman Commission's Report, the Edinburgh Agreement, or the Smith Commission proposals in Scotland, all of which would likely be less easily used as constitutionally relevant materials for judges interpreting provisions of the Scotland Act.

Importantly, however, the Good Friday Agreement is not enshrined in domestic law. At best it represents political undertakings that frame the pretext for the Northern Ireland Act itself. The Northern Ireland Act does not commit the UK Government to behave with "rigorous impartiality" on this issue, nor does any other statute. If there is a potential breach of law here, it is of international law and not of domestic constitutional law.

This is important because, unless otherwise expressly authorised, it is not within the gift of the domestic courts of the UK to prevent a minister from undertaking their office's powers and duties (as they relate to foreign affairs) in contravention of international law. The prerogative power would be particularly important here, as might political forms of constitutional accountability (like Parliament's scrutiny of any deal). But as a matter of domestic law there is no hard constraint. This is the important difference between a judicial review in this case and, say, the judicial review in R (Miller) v Secretary of State for Exiting the European Union where what was being contested was the existence of a legal power in domestic law to make a notification under a treaty.

Why an overtly common-law challenge would (probably) also fail

Any argument then, would rely-upon a contortion of common-law grounds of review. Perhaps they might maintain that, by failing to take into account the relevant considerations of the undertakings of the GFA, the Prime Minister had exercised her power improperly. Perhaps even they might argue that no reasonable Prime Minister properly applying their mind to the question would conclude that the grave constitutional (if political) undertaking of rigorous impartiality was compatible with whatever agreement was reached.

Even if these issues were regarded, in principle, as justiciable, it is difficult to see how a court would interrogate the decision so meticulously as to annul that of the original decision-maker (the Prime Minister). It would be very easy on her part to show that her decision has seriously contemplated the implications on the peace process, even if one might politically and quite radically disagree with her.

Perhaps more importantly, courts are generally deferential when it comes to constitutional disputes. The generous reading-in of materials in Robinson v Secretary of State for Northern Ireland, for instance, had the effect of relaxing apparently plain legal obligations to allow for political negotiations to take precedence during the crisis. A court that went out of its way to say that a Prime Minister was acting irrationally for going into an agreement of this sort would in effect be doing the opposite: giving legal properties to negotiations concerned with profound high-politics.

Parting thoughts

This (potential) case is interesting from my perspective because my doctoral thesis is concerned, in part, with the judicial treatment of constitutional secession negotiations. I look at questions like, for example, what a court would do if the UK, Canadian or Spanish Governments refused to enter into secession negotiations to honour a (constitutionally valid) referendum result on the part of Scotland, Quebec or Catalonia to secede. Even in the Canadian case, where their Supreme Court articulated constitutional duties to "negotiate" a response to a clear result, however, they stopped short of saying that they would intervene in a dispute of that nature if those duties were not honoured.

It seems to me that the duty to uphold rigorous impartiality in Northern Ireland is of a similar order. The Courts will not intervene except in the most clear-cut cases of interests being compromised, and even then they will do so on the basis of overt statutory authority, not by reading-in the Good Friday Agreement.

This is not to diminish the political importance of those undertakings. We should have grave concerns about any government, whether formally or informally, that is dependent upon sectarian parties to get its legislative agenda through. Constitutionally, however, at best these references to the Belfast Agreement seem to me to restate the constitutional tensions that already exist. They do not solve them.

Tuesday, 13 June 2017

On Hung Parliaments and Confidence

The Fixed Term Parliaments Act has no shortage of detractors and is often misunderstood. One of the (misplaced) criticisms that has been made of the FTPA is the effect it would have on constitutional convention and practice concerning the vote on a Queen's Speech or a Budget. I wrote this post to try to explain both how the convention concerning the appointment and resignation of governments operates and how, if at all, this has been affected by the FTPA.

The Historical Position

Historically, a Commons defeat on a major bill that was core to the governing platform of the incumbent government would be indicative that the government had "lost the confidence" of the House of Commons. In a Parliamentary democracy (unlike a presidential democracy) a government that does not command the confidence of the elected legislature has lost its legitimacy: its right to govern. As in any other walk of life, if a set of office-holders have "lost the confidence" of those that put them there, we clearly don't just mean that they are wrong; we mean that they are no longer fit to assume their position and to be custodians of their office. A Prime Minister is expected to resign: it is their constitutional duty to do so even if legally they are not required to.

But did they actually have to resign?

The only alternative to resignation that was historically open to a Prime Minister was to ask the Queen to dissolve Parliament and to bring about a new set of elections. It might reasonably be thought, however, that this option was only open to a no-confidenced Prime Minister, where there was no clear alternative individual capable of forming a government that would command the confidence of the House of Commons. In those circumstances it would have been open to the monarch to refuse that request, though it would have been extremely unusual for a monarch to refuse such a request and become embroiled in the political merits of a premature dissolution.

In practice, in any instance where a government was composed of a single party having close to an overall majority, including ones that had not long lost them, there would not be an obvious alternative individual from another party capable of commanding the confidence of the Commons. This would make a request to dissolve Parliament and conduct fresh elections a viable course of action. Although the monarch could dismiss their Prime Minister in that interim period if they so wished, in practice they would not do so. It is constitutionally viable, though not without its problems, for the office of Prime Minister to be vacant for a short period of time and for the Cabinet to govern in the interim at the pleasure of the Crown.

Can the Prime Minister try to stay-on without majority Commons support?

Where this gets interesting is in a hung-parliament where there is a large or power-broking third-party. This might mean they have a genuine "choice" as to who they wish to provide Parliamentary support to to enable either of the other two other parties to form a government commanding the confidence of the Commons. This dilemma emerged after the 1974 February and 2010 General Elections, where the incumbent Prime Minister's party fell short of a majority and came second by seats, but where the Official Opposition failed to win an overall majority. Both Ted Heath and Gordon Brown could, constitutionally, have attempted to introduce a Queen's Speech and to try to gain support from smaller parties to see it pass, rather than resign and recommend that the Leader of the Opposition should form a government.

If they lost that Queen's Speech, however, they would be expected to resign just as Prime Minister Stanley Baldwin did following the tabling of a motion of no confidence against him on the opening of the 1923 Parliamentary session. He had won the plurality but not the majority of seats in that election, and the other two parties tabled that motion. The resignations of Ted Heath and Gordon Brown were pre-empting a loss of confidence; they were taking the election result, rather than a vote of confidence, as a direct if indicative cue for what they anticipated Parliament would do.

This explains why Theresa May was entitled to continue to stay on as Prime Minister despite falling short of a majority and despite not yet having immediately secured a confidence commitment from the DUP. Under the current Parliamentary arithmetic, the Conservative Party not only is the most viable party to lead a government; it is probably the only party that conceivably could do so. After all, it only requires the DUP to abstain on a vote of confidence to win it if all their own MPs back it; a Labour-led administration would require the explicit support of the DUP (and several other disparate parties) to win a confidence vote. Only if it subsequently becomes clear that Theresa May could not count on the DUP not to oppose her in a confidence vote would an expectation of resignation emerge.

If a coalition or supply-and-confidence deal were to break down during a Parliament, the expectation would be either that an agreement in principle has been reached to form a new Commons majority with another other party (to form a new government) or that no party was able to command the confidence of the House. If the former is the case, the Prime Minister is expected to resign. It would be expected that the Queen invites the Leader of the Opposition (or whoever the coalition parties have agreed is best placed to lead a government) to form a government. If the latter is the case, the Prime Minister might be allowed instead to seek a General Election.

For whom ought a Prime Minister to have resigned?

Technically of course, the Queen can invite anyone to form a government and can ask for the resignation of a Prime Minister. By convention, and extremely sensible practice, she does not do so.

It is possible that someone else from within their own party would be the person best placed, rather than the Leader of the Opposition, in which case it would be open to the Prime Minister to offer their resignation to the monarch and recommend that she invite them to form a government instead. The monarch in modern times would normally seek to avoid involving themselves in any decision of this nature, but a Prime Minister would be putting them in that position if their recommendation to appoint internally was not the most-supported option by the House of Commons.

There is no immediate such example that springs to mind of this happening in British political history. What there is precedent for is a Prime Minister resigning as the leader of their political party before resigning as Prime Minister, once their successor has been appointed according to the relevant party rules. This was what happened with David Cameron's handover to Theresa May, Tony Blair's handover to Gordon Brown and Margaret Thatcher's handover to John Major. In those instances the successor to the Prime Minister was obvious: the leader of the party with a majority of seats in the Commons. It would have been inconceivable in 2007 for the Queen to invite David Cameron to form a government, or for her to ask Neil Kinnock to form one in 1990 or Jeremy Corbyn in 2016.

Unfortunately, without modern precedent for situations where a majority did not exist, the involvement of the monarch is inevitable should a Prime Minister recommend that a member of their own party should be invited to form the government but a sizeable part of the Commons objects that someone else (probably but not necessarily the Leader of the Opposition) should instead be invited. There would need to be constitutional rules put in place to preserve that institutional distance as things stand.

What counts as a motion of no confidence?

A Queen's Speech is clearly a defining question of confidence. It represents the government's proposed legislative programme for the Parliamentary session. Rejecting that is tantamount to rejecting its right to govern.

The annual Budget may be slightly different. Although Finance Bills are critical to the functioning of a government, the failure of a specific budget might not mean that the legislature does not have the confidence in the government to pass a budget. This is an observation that SpinningHugo has made before, though I would add a specific example in support of this premise. While governing as a minority government in Scotland, the SNP initially failed to pass its budget in January 2009. After making concessions to other political parties, it passed at the second attempt. That budget was not taken as an indication that the Scottish Government had lost the confidence of the Scottish Parliament, though repeated failures to get a budget through might.

Another way that the House of Commons can indicate that it has no confidence in the government is simply to table a motion to that effect and to win that vote. This was how James Callaghan was defeated in 1979. Believing that no other individual could any more clearly command the confidence of the House of Commons as elected, he asked the Queen to dissolve Parliament, allowing a fresh set of elections to take place.

What does the Fixed Term Parliaments Act change?

The Fixed Term Parliaments Act 2011 removes the prerogative power of premature dissolution of Parliament. The Prime Minister can no longer ask the Queen to dissolve Parliament.

Instead, if an early General Election is to be held, there must either be a vote in favour of one in the Commons supported by not fewer than 434 MPs (as happened to trigger the 2017 General Election) or if a very specific procedure happens.

If the House of Commons passes a motion by a simple majority saying:
"That this House has no confidence in Her Majesty’s Government."
And then 14 days pass without it passing a motion saying:
 "That this House has confidence in Her Majesty’s Government."
Parliament is dissolved and a General Election takes place.

This has, effectively, replaced an executive power to trigger an election with a legislative one. The Prime Minister no longer gets to decide whether or not a General Election should be held. This Act, therefore, by implication withdraws the alternative course of action available to a Prime Minister if their government loses a vote of no-confidence. Constitutionally, their only option is to resign. The next best placed person ought then to be invited to form a government. This will often be, but does not have to be the Leader of the Opposition.

What does it not change?

This transfer of power does not change the constitutional conventions that apply concerning whether or not a government should resign. The dissolution of Parliament, in itself, has no bearing on whether or not the Prime Minister is the best placed person to command the confidence of the Commons, even if, during an election itself, there is no sitting House of Commons to express confidence or no confidence.

This transfer of power does not change what constitutes a "vote of no confidence" for the purposes of determining whether or not a Prime Minister is under a constitutional duty to resign. This is a common mistake that both Members of Parliament and journalists have frequently parroted in the last few days. It says instead that, following a specific type of no confidence motion, either a government commanding the confidence of the House must be formed within a fortnight or an election must happen. The Act is completely and utterly silent as to what, constitutionally, ought to happen in that 14 day window.

So what should/could happen?

If the Queen's Speech is voted down, one of three things could happen:

1. The Prime Minister resigns and the Queen invites the Leader of the Opposition to form a government.

If this happens, it is open to the Tories as the largest party immediately to table a motion of no-confidence under the terms of the Fixed Term Parliaments Act in any government the Leader of the Opposition attempts to form. The (then) Prime Minister would then have to (a) successfully form a government within 14 days and get a positive confidence motion passed; (b) resign; or (c) remain in his position while a General Election takes place.

2. The Prime Minister resigns and the Queen either delays in appointing a new Prime Minister or immediately invites another individual from the current government (probably a senior member of the Cabinet) to attempt to form a government.

If this happens, it is open to the combined party effort that voted-down the Queen's Speech to bring a motion under the terms of the Fixed Term Parliaments Act and do exactly as the Tories would do in scenario 1.

3. The Prime Minister breaches constitutional convention and refuses to resign.

If this happens, Parliament has a remedy available to it that is constitutionally proper: it can table a FTPA motion of no-confidence and trigger an election.

What's the problem?

What is arguably unhelpful about the Fixed Term Parliaments Act is that the use of "confidence" in the simple majority election trigger may itself be understood as creating an obligation on the government to resign. In scenario 1, for example, this would mean the Leader of the Opposition, within literally hours of being invited to form a government and accepting, could be put under a constitutional duty to resign.

Common sense, however, says that this is clearly not what a motion under the Fixed Term Parliaments Act intends if it immediately follows the resignation of another confidence-defeated government. This is even more clearly not the case when you consider what would have happened before the FTPA was passed. If a Queen's Speech had fallen, and a Prime Minister requested the dissolution of Parliament, the monarch could, constitutionally, have refused that dissolution. In those circumstances, the Prime Minister would have still been expected to resign.

If, however, on attempting to form a government, the invited Leader of the Opposition concluded that they could not command the confidence of the Commons either, they too would then have asked the monarch to dissolve Parliament and bring about another General Election and it would be much more difficult, constitutionally, for the monarch to deny that request. That is what this 14-day period is, constitutionally, intended to do: give a new Prime Minister a chance to broker a deal to form a government.

The nomenclature could, therefore, be cleaned-up a little, but the Act does in fact separate perfectly constitutionally consistently, the questions of formation of a government from the calling of an election.

The real problem?

The only plausible problem with this arrangement is that the political incentives, for a long time, connected the powers and duties of the prime minister as they related to the formation of a government and the dissolution of parliament, and made them almost exactly concurrently exercised. The Fixed Term Parliaments Act breaks the two apart more explicitly. It arguably shifts the political incentives, moreover, on the part of a Prime Minister to take-up option three articulated above. It may now be much easier for a Prime Minister to defy constitutional convention that they should resign on losing a Queen's Speech, on the grounds that "well if they table a FTPA motion of no-confidence I'm only staying on for 14 days anyway before the people can decide". This argument might be especially potent if they represent the largest party and there is no realistic prospect of the Official Opposition forming an alternative government on the present Parliamentary arithmetic.

In these circumstances, it is particularly important that political actors should bring pressure to bear that the existing and not excised constitutional conventions concerning the resignation of a Prime Minister are properly respected. And if they are not respected, as with any other constitutional convention, Parliament should make full use of its remedial powers by forcing the Prime Minister to hold a General Election, and then the electoral process should allow voters to cast a judgment whether the Prime Minister's abuse of power is egregious and indefensible.

If your argument is that these protections are poorly enforced, then I agree. But that's an argument against relying upon constitutional conventions; not against the Fixed Term Parliaments Act. At best it is an argument that the office of Prime Minister should be appointed following an express nomination of a candidate by the House of Commons on a term that expires following the holding of a General Election. It would better guarantee that any appointment to the office of Prime Minister did in fact command the confidence of the Commons. This approach could, for instance, be modeled upon the approach to election of First Minister in the devolved assemblies.

Under sections 45 and 46 of the Scotland Act 1998 for example, the Presiding Officer shall recommend to the monarch a nominated individual to become First Minister, as chosen by the Holyrood Parliament. Such a nomination takes place whenever there is a vacancy, or following an election. If no nomination is made within 28 days, the Parliament is dissolved and another election is held. In the event of a vacancy, the Presiding Officer can delegate the functions of First Minister to another individual for the duration of that vacancy. This approach might clean-up the ambiguity of what is meant by a "confidence" motion in the FTPA.

The truth is that the old system that preceded the Fixed Term Parliaments Act would have handled this type of situation no better than the current one. It allowed Prime Ministers to escape resignation by appealing immediately and directly to the country, even when an alternative viable government could be formed from the democratically elected Parliament. These decisions are no longer a privilege the Prime Minister enjoys, exploiting in the process the political sensitivity of the Crown. It is instead for Parliament itself to decide.

For a Parliament man like me, that is, when all is said and done, a no bad thing.

Tuesday, 28 March 2017

Secession Referendums and the United Kingdom

My PhD supervisor, Prof Adam Tomkins, is the John Millar Chair of Public Law and a Conservative MSP for Glasgow. We disagree on many things. One of the things we quite radically disagree on is the proper function of referendums in the British constitution: especially secession referendums.

This disagreement can be illustrated in part by a recent statement he made on Twitter. Today the Scottish Parliament, with the support of the MSPs from the minority SNP Scottish Government and those of the Scottish Green Party, voted by a majority of 69 to 59 in favour of a motion. That motion formally requests that the Westminster Parliament should pass enabling legislation, which would authorise the Scottish Parliament to legislate for a second independence referendum. It indicates that the most suitable moment for that to take place would be between the conclusion of a proposed UK Brexit deal and the elapsing of the 2-year time period after which the UK regardless ceases to be in the EU. This would be between autumn 2018 and spring 2019.

Clarifying the disagreement

Adam takes the view that a referendum should not be held during that period. On the merits, I tentatively take the view that that timetable has no real advantage over a referendum held in 2020 or 2021, from just about anyone's perspective. Scotland will be taken out of the EU as part of the UK regardless, even if temporarily, under that timescale. Where I disagree with him is what the constitutional process should be for deciding whether and how an independence referendum should be held.

Adam's Argument

His argument is that:
"Lawful, fair secession referendums are an act of statecraft. Different countries do them differently. In the UK we do them by agreement. Here, it's not for one side unilaterally to demand a secession referendum. Timing, and other matters, must proceed by agreement. This would be the case whether or not the losing side last time had vowed that such votes are "once in a generation""
I may well be drawing unfair inferences from this argument, but I don't think it takes us very far. Purely descriptively, he is correct, in my view, that as a matter of law a referendum cannot be legislated for on Scottish independence without explicit authorisation of the Westminster Parliament. This authorisation, legally, must take place either by way of primary legislation or under a "s30 Order" relaxing the range of devolved matters of the Scottish Parliament. On this point, then, I take his side rather than that of other Scottish legal academics, who argued last time that the Scottish Parliament might not need that consent, because they disagreed that a Referendum Bill would "relate to reserved matters".

The problem here is that this legal starting point tells us almost nothing about who should be allowed to call a secession referendum and in what circumstances, which is the nub of what people are actually and substantively disagreeing about. It also does not tell us anything about what principles should govern when legislatures should be prevented from authorising those referendums. We have no answer to the normative question as to how the process ought to go forward, or not go forward. We have only a shell, unless we are to infer from the default position of the Scotland Act that the intention is to confer a veto power on the Westminster Parliament. If we believe it should have a veto, we must squarely confront the reasons that it should have that veto: what interests is this veto designed to protect, and is the veto necessary to protect those interests?

The UK "approach"

Adam maintains that constitutional practice in the UK requires that referendums on secession should only take place "by agreement". This is a strongly contestable claim and one that is wanting for precision (though the standard disclaimer of "Twitter only allows 140 characters" does of course apply). He also says that our constitutional practice is different from other countries (one example might be Canada, where provinces have no legal bar on a referendum) though this is a descriptive observation; not a normative justification.

One reason Adam's descriptive claim is contestable that he is basing this position on, specifically, the way the 2014 referendum was held for Scotland, and not on the basis of a UK-wide constitutional norm. The Scottish Parliament had no say, for example, over whether and subject to what conditions the UK's secession referendum from the European Union should be held. It is not obvious that the UK Parliament should have power over a referendum on, say, an area normally falling within the competence of a devolved legislature either: there is clearly something unspoken here that is regarded as special to secession referendums.

Any referendum on the holding of a border poll for Northern Ireland to decide whether they should become part of Ireland is not subject to intergovernmental negotiation; on the contrary, there is a legal duty on the part of the Secretary of State for Northern Ireland if it appears likely to him that a majority of those in Northern Ireland wish to leave the UK and become part of the Irish Republic. He is legally required so to act, even if the majority of those elected at Stormont are against the holding of such a poll. Although the National Assembly of Wales would also probably not have the competence to hold a secession referendum, the scheme under which it has devolved powers is completely different from that of Scotland and it does not have the same kinds of restriction.

Moreover, other territories with a UK relationship have completely different norms that govern the circumstances in which secession referendums may be held. Gibraltar and the Falklands Islands, for example, do not need Westminster consent to hold a referendum on secession. When the UK refused to recognise the Western Australia secession referendum of 1933, it was not because it had denied dominions the right to hold such plebiscites, but because the Commonwealth of Australia itself had refused Western Australia that power.

My point here is that, if we are talking about strict constitutional law, the UK has no common method of settling this question at all. The Edinburgh Agreement was merely one way of ensuring a fair and legal referendum was held; it's not the only way and it's not a norm that we have to abide by.

What norms do we have?

But if you do think it is a norm we should abide by, I think we have to be much clearer about what it involved, what norms and precedents it set and whether those norms are and ought to be legal or merely in some looser sense constitutional. We would need compelling reasons, constitutional reasons, not just political ones, to depart from the approach we took last time.

Adam says that "it's not for one side unilaterally to demand a secession referendum". But who are the "sides" here? Do we mean it's not for one Government or for one Parliament so to demand? Or do we mean political parties or caucuses? This is important if we are making normative claims about what, constitutionally, should happen. What has happened here is that the Holyrood Parliament has "demanded" the power to hold a referendum, though it is not acting "unilaterally" in the sense that it is not (yet) purporting to hold a referendum without the necessary legislative consent of the UK Parliament. The Members of the Scottish Parliament who oppose the holding of a second referendum have a different constitutional role from that of the UK Government or the Members of the UK Parliament, even though they may, many of them, share party allegiances. The question "should a referendum be held" is not the same as the question "should the Scottish Parliament be allowed to hold a referendum".

The failure to treat those questions as distinct fudges this debate considerably. It would be constitutionally consistent for Unionist parties to say that the Scottish Parliament should be allowed to decide whether or not to hold a referendum, without saying that they believe such a referendum should be held. They may look politically inconsistent if they vote for one but against another, but political deftness is not a defence for eschewing constitutional norms.

If Adam and others are of the view that the Edinburgh Agreement provides a framework or precedent for how we should proceed, we need to look behind the mere fact of disagreement about whether a referendum should be held and to look instead at what constitutional principles guided the conclusions of the UK Government last time to accept that a referendum should be permitted to be held by the Scottish Parliament. There are two clues to what drove this. The first is the acceptance of the existence of a political mandate to hold a referendum. Bluntly, we need to be clear exactly what the minimum thresholds are here. Is it sufficient for the Scottish Parliament to vote in favour of either having or exercising the power to create a constitutional duty to take steps to enable that to happen? If not, why not? And what additional expectations or qualifiers, constitutionally, are we insisting upon, and why? The second is how we establish the existence of a political mandate to give effect to other constitutional norms, particularly conventions.

Political Mandates

Constitutionally, the UK is quite opaque about what constitutes a political mandate for the purposes of constitutional conventions that guide the behaviour of legislatures and governments without courts getting involved. The Salisbury-Addison Convention refers to proposals contained in the governing party's manifesto, for instance, but it provides little if any guidance on what should happen in the event of minority or coalition government. The UK Parliament did publish a Joint Report of the Commons and Lords into constitutional conventions in October 2006, in which precisely this issue was raised, but there was disagreement as to its scope.

On one view as long as a party is able to form a government commanding the confidence of the Commons, Salisbury-Addison applies; on another it only applies to outright majority governments. The honest truth is we do not have a coherent set of principles to explain how and to what extent this convention concerning the existence of a "political mandate" transfers, if at all, from Westminster to Holyrood, given that the relationship between Commons and Lords is very different from Westminster and Holyrood. It is our "best guess" but nothing more than that. This lack of clarity means we do not have a clear answer about what to do with a minority Holyrood government on an issue, even where enough support from opposition parties is gathered to gain support behind a manifesto proposal. The UK Government opposed the holding of a Scottish referendum before 2011 in the absence of a Holyrood mandate: what was it about that Holyrood election that changed things? How do we decide that a referendum should be allowed to happen is not the same as asking how we decide whether a referendum should happen.

What must be agreed and by whom?

The Edinburgh Agreement itself did impose limits and restrictions on the manner of the exercise of a referendum power. It placed a time limit on its exercise, but did not prescribe a date. It limited it to a binary question, but did not prescribe a wording. It prescribed some of the rules and institutions applicable to the referendum, but did not set its franchise or dictate its campaigning rules.

The Edinburgh Agreement, insofar as it articulated principles at all, said that most of these matters were "for the Scottish Parliament to determine". If "agreement" is the basis on which secession referendums is to be held, and we base that principle on the constitutional practice of the Edinburgh Agreement, we must surely also take into account the constitutional practice of that agreement too? If a second referendum is to be held, we need compelling reasons other than political expediency for explaining why the UK Government should have more of a say over the terms of such a power than it did last time around.

This, in my view, means that it would be constitutionally inappropriate (though clearly not legally incompetent) for the UK Government to use its position in the UK Parliament to insist upon controlling the franchise of a second referendum. There seems to me to be no logical nexus between who may vote in the referendum and whether or not it should be held. It would also be very suspect, save to exclude ambiguity or bias, if they were to insist on a role in setting the question beyond making it a binary choice. It would in any case be logical on the Scottish Government's part for pragmatic reasons to use the same question as last time given the Electoral Commission said it was intelligible and not biased.

Timing

The only area in respect of which the UK Government is arguably on firmer ground is with respect to the timing around which a power may be exercised by the Scottish Parliament. Even then, we need a constitutional argument for why a power over timing justifies an outright veto over whether a referendum should be held at all. Put simply, what constitutional principles are protected by letting the UK Government determine when, at all, the Scottish Parliament can hold a referendum? This question is, again, not the same as the question when should the Scottish Parliament hold a referendum.

This question also breaks-down into a further inquiry: what kinds of control over the timing are necessary to protect fundamental constitutional interests? Should the UK Government be allowed, in extremis, to dictate the date? Should they be allowed to impose a time limit? Should they be allowed to impose a minimum waiting period? If there are additional concerns about a referendum taking place during a time of constitutional uncertainty (with Brexit negotiations) or that one is held too soon after a previous one, just what, in the terms Adam puts it, is it that has to be "done by agreement" between Governments and Parliaments, and what it is that has merely to be "done by agreement" between Members of the Scottish Parliament? What aspects of this process can the Scottish Parliament not be trusted to get right?

These are questions that the UK Government have not answered. If a power on restricting the timing of a referendum is not itself one that is subjected to checks and balances, it is in essence a legal veto. That is a drastic position that should demand clear constitutional justification, not just a descriptive statement of constitutional fact.

Conclusion

Saying that referendums must proceed by agreement does not tell us how they ought to proceed, and it does not tell us what constraints ought to apply, what it is reasonable to insist upon and what we should do if people cannot agree. Without those constraints referendums aren't "only held by agreement" at all. You are instead giving a partisan veto to a political institution dominated, structurally, by pro-Union politicians, and you have to provide a constitutional, not just a political, defence for that.

I do not think it is sustainable to make a constitutional argument against Holyrood being entitled to legislate for a second referendum on Sturgeon's timescale unless you reject, and reject openly, honestly and clearly, the notion that whether or not Scotland should be an independent country is ultimately a decision that should be for the Scottish people to choose or not to choose to take. It involves the rejection of the Claim of Right, the political articulation of the idea that the UK is a union constitution, not a unitary one, and that it is the sovereign right of the Scottish people to determine the form of government suited to their needs. The Scottish Parliament is the only democratically elected legislature that provides a representative basis for an expression of the will of the Scottish people.

And you know what? It's fine to reject that. But given it is the sentiment upon which much of the political legitimacy for the devolution settlement rests, good luck with that.

Tuesday, 14 March 2017

Franchise, Question, Timing - Who decides?

There has been a lot of inaccurate information disseminated in the aftermath of Nicola Sturgeon's stated intention to hold a second independence referendum between Autumn 2018 and Spring 2019. This might sound tedious but it is important to clarify exactly how the process worked last time around and what relevance it has to how it might operate this time. Consider this a constitutional "primer" for #IndyRef2 / #ScotRef / #Neverendum depending on your own persuasion.

Who may hold a referendum on independence?

The legal power to hold an independence referendum is not explicitly addressed in UK constitutional law. However, given that the Westminster Parliament is a legislatively supreme Parliament, it may make or unmake any law. This means that it can legislate for a referendum on anything if it so wishes. The courts cannot prevent them from so legislating, but the UK Government typically cannot hold a referendum unless legislation authorises them to do so. In most instances, this will take the form of primary legislation (i.e. an Act of Parliament) but in some instances it may take the form of secondary legislation, especially if primary legislation has already provided for the conditions in which a referendum is to be held.1

The Scottish Parliament is not a legislatively supreme body. It is, as the late Lord Rodger put it "a body which - however important its role - has been created by statute and derives its powers from statute".2 This means that if it attempts to pass legislation that falls outside of its legislative competence, those provisions are "not law" and no one, not even a government minister, can exercise or rely-upon those provisions.

The Scottish Parliament cannot pass laws which "relate to" "the Union of the Kingdoms of Scotland and England".3 There is disagreement about what this means. The UK Government in 2011-12 publicly stated the view that they believe the SP legislating for an independence referendum would not be legally permissible.4 Any referendum, they argue, regardless of its legal effects, would necessarily "relate to" the reserved matter. The Scottish Government at the time said that they believed it may be possible to legislate for a referendum, but that whether or not it "related to reserved matters" depended upon how the question was asked and the nature of the legal consequences of the referendum result.5

The Parliamentary debates from the passage of the Scotland Bill in 1998 strongly suggest that those promoting the legislation believed it "clearly" prohibited the Scottish Parliament for legislating for such a referendum. In both the House of Commons and the House of Lords, government ministers and opposition members operated on that understanding. Clarifying amendments, put forward by Lord Mackay of Drumadoon (a former Lord Advocate under the previous Conservative Government) were dismissed as unnecessary, so sure were they of this position.6

It has never been settled in a court of law whether, ordinarily, it would be within the legislative competence of the Scottish Parliament to pass an Act of the Scottish Parliament providing for the holding of an independence referendum. Scottish legal academics divided on the question.7 However, we do have some guidance that may give us a good indication as to what the courts would do. There are two cases that are particularly relevant for present purposes. One is the case of Martin and Miller v HMA8 and the other is Imperial Tobacco v Lord Advocate 9. The first of these two cases took place before the Edinburgh Agreement, whereas the latter straddled it. The Inner House judgment came before the Edinburgh Agreement, and the Supreme Court judgment came after, but they largely agreed with one another.

These two cases saw both the Scottish courts and the Supreme Court take a broad interpretation of whether or not a provision "relates to" a reserved matter. We establish whether or not this is the case by "reference to the purpose of the provision, having regard to its effect in all the circumstances". Approaches advocated include looking to the "ultimate purpose"10, not simply the narrow intentions of the provisions themselves, and that if a bill has many purposes, all of those purposes must be consistent (unless one is wholly ancillary to another)11. Whereas this competence issue was perhaps an open question in 2011-12, it is now very unlikely that either the Inner House or the UK Supreme Court would find that a Referendum Bill fell within the legislative competence of Holyrood.

In the absence of changes to the devolution settlement, therefore, Holyrood cannot call a referendum on independence on its own. Without primary legislation, Scottish Ministers cannot: access the full electoral register to register people to vote (rather than just the public one from which people can ask to be omitted); impose campaign donation and spending limits; use broadcast media or the Royal Mail to allow for referendum broadcasts and addresses; spend public money facilitating the holding of a poll for which there is no legal basis; make use of the Electoral Commission to vet the question to be asked and/or other election arrangements etc.

At best, an informal and independent organisation could organise the holding of a public plebiscite, without these forms of oversight. This was what the Catalan authorities claimed was the nature of their "non-referendum popular consultation" after the Spanish Constitutional Court prohibited them from holding it.12 As you may have seen in the news in the last day or so, the former Catalan Premier, Artus Mas, was prosecuted in the criminal courts for his part in facilitating the plebiscite, and banned for two years from public office.13 That poll involved private citizens counting ballots, but the Catalan Government had committed public expenditure to the exercise and set-up and controlled a website disseminating information about the vote. That vote was boycotted by anti-secessionists in part because of its illegality: the turnout was less than half that of either the Scottish independence referendum of 2014 or the Quebec sovereignty-association referendum of 1995.

How, then, did the 2014 referendum happen?

The Scottish National Party won an overall majority in the 2011 Scottish Parliamentary elections, with a clear manifesto commitment to hold a referendum on independence in the lifetime of that Parliament. They had previously attempted to introduce legislation following their election victory in 2007, where they became the largest party but were well short of a majority at Holyrood. That legislation failed to progress in the absence of a Parliamentary majority in favour.

The Edinburgh Agreement

After prolonged public political exchanges, a Memorandum of Understanding (known as "the Edinburgh Agreement") was reached between the Scottish Government and the United Kingdom Government. In this agreement it was understood by the parties to it that the referendum to take place must (and I quote directly):

  • have a clear legal base
  • be legislated for by the Scottish Parliament
  • be conducted so as to command confidence of parliaments, governments and people; and
  • deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect

In relation to the first undertaking, it was agreed that the UK Parliament would exercise its powers under section 30 of the Scotland Act to confer a time limited, conditional, power on the Scottish Parliament to hold a referendum on independence.

In relation to the second undertaking, the responsibility for introducing legislation actually to hold the referendum itself lay with Holyrood, on whom that power was conferred.

In relation to the third undertaking, it was agreed that the Electoral Commission and Election Management Board would be responsible for overseeing areas like voter registration, campaign conduct, and in the case of the former that it would assume the same role in reviewing the "intelligibility" of the question asked as it assumes for any referendum legislated for by the Westminster Parliament.

In relation to the fourth undertaking, it was accepted by the UK Government, though only politically, that as long as the referendum conformed to the necessary legal and procedural standards, a fair question was asked, and a simple majority of those voting did so in favour of independence, it would take steps to honour that result. The two governments committed themselves to "work together constructively in light of the outcome, whatever it is in the best interests of the people of Scotland and the rest of the United Kingdom".

The Section 30 Order

The eagle-eyed viewer will notice that a memorandum of understanding is not a law. There were no legal commitments as such, though a draft provision was annexed to the Edinburgh Agreement. To change the law, the UK Government had to pass legislation through both Houses of Parliament, and the text of that legislation had to be approved exactly by the Scottish Parliament. The Scotland Act 1998 (Modification of Schedule 5) Order 2013 was passed in February of 2013. It allowed the Scottish Parliament to hold a referendum subject to the following conditions:
  • It must not take place after December 31st 2014
  • It must not clash with any other referendum provided for by the Parliament
  • It must ask only one question with only a choice between two responses
  • Aspects of regulation of referendum broadcasts and postal materials that apply to Westminster referendums must also apply to any referendum held pursuant to the Order

The Scottish Parliament

Beyond this, everything was left for the Scottish Parliament itself to decide. It did so by passing two pieces of legislation: the Scottish Independence Referendum Act 2013 and the Scottish Independence Referendum (Franchise) Act 2013. The Edinburgh Agreement and the accompanying section 30 Order did not impose restrictions on
  • The franchise
  • The actual text of the question to be asked
  • When, within the time-limited scope of the power, a referendum must be held

Indeed, it was, legally speaking, open to the Scottish Parliament not to call a referendum at all. All the Edinburgh Agreement did was remove the legal obstacles to the holding of a referendum, not to require it. The Edinburgh Agreement itself did operate on several mutual understandings as to the broad intention in relation to those three areas, however.

In relation to the franchise, it was very clear. At paragraph 9 of the Memorandum, the starting point was that no one who was entitled to vote in a Scottish Parliamentary or local election should be prevented from voting in the independence referendum. Supplementary to that, per paragraphs 10 and 11, the UK Government acknowledged that the Scottish Government was consulting on whether and how to include 16 and 17 year-olds in that franchise. The UK Government imposed no legal restriction on this and left it to the Scottish Parliament to decide whether to authorise an extension to the franchise for the purposes of the referendum.

In relation to the question to be asked, it was agreed in the Edinburgh Agreement that the Electoral Commission would serve broadly the same function in relation to this referendum as it is required under statute to do in relation to any referendum authorised by Westminster legislation. The key difference was that it would report to the Scottish Parliament, not the UK Parliament. The Electoral Commission exercises a duty to examine the "intelligibility" of a referendum question. The EC has interpreted this as meaning that it should ask whether the ballot "presents the options to voters clearly, simply and neutrally". This undertaking does not require the Scottish Parliament to accept the recommendations the EC makes, but in the 2014 referendum the recommended (cosmetic) changes were accepted.

In relation to the timing, the Scottish Parliament settled on a date of their choosing several months before the temporary power expired. The Westminster Parliament had no influence over when the referendum was to be held save to put a time limit on the power. There had been calls from Unionist parties for the referendum to be held sooner than September 2014, but these were rejected by the Scottish Government and the Parliament approved their timetable.

Can't we just do the same thing again?

It has been suggested by some that David Cameron was "too generous" as to the terms on which he allowed the first referendum to take place. I will openly say that I disagree with that, but it is worth exploring the precedents and norms that the Edinburgh Agreement and section 30 Order for the 2014 referendum set and to consider whether, and to what extent, they apply to the current situation.

Whether a referendum should be held

Several arguments have been made about whether a referendum should be held at all. However, this itself breaks down into two questions:
  • Whether the Scottish Parliament should be granted the power to hold another referendum
  • Whether the Scottish Parliament should exercise such a power (and if so, when)

These are functionally separate questions, because the former relates to activity that requires both Parliaments to consent, whereas the latter requires only the Scottish Parliament to take the initiative. Although the Edinburgh Agreement last time proceeded on the understanding that the power was to be granted so that it would be used they are nevertheless discrete.

Nicola Sturgeon's Government, at this stage, proposes only to initiate the first of those two processes. She is asking that the power be granted, and she has given an indication of the period during which she intends to exercise that power.

The objections to the holding of this referendum include the following:
  • There has already been a referendum recently and the answer was No
  • There is no mandate at Holyrood for the holding of another referendum
  • It would be inappropriate to hold a referendum before the Brexit terms are known
  • It would be inappropriate to hold a referendum before Brexit has happened

The first two arguments are plausible ones why a section 30 Order should not be granted. The arguments may run that, without the combination of constitutional and political grounds for a referendum, the Scottish Parliament should not have the power to hold one.

All four arguments can plausibly be made to explain why a section 30 Order either should not be granted now or why even if a section 30 Order is granted, Holyrood should not exercise it. However, if approached from the perspective of a Unionist, it might be thought that the fact Holyrood has a Parliamentary majority in favour of a referendum means that the more appropriate forum to object to the referendum is at Westminster, where they are more likely to be able to block the consents necessary for the Order.

There would be political consequences associated with refusing an Order on any of these grounds and I do not propose to speculate what those would be in this piece. However, I do propose to dissect each of these defences and to elaborate on what they can and cannot justify.

There's already been a referendum and the answer was No

This argument often involves reference to the fact that, during the referendum campaign, prominent SNP politicians referred to the vote as a "once in a generation" or a "once in a lifetime" opportunity or decision. This perhaps also speaks to the idea that the original referendum was intended to, in the terms of the Edinburgh Agreement "deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect".

It is worth observing at this stage that none of these commitments appeared in legislation and none of them appeared in political manifesto documents. The notion of a "generational" or "lifetime" question did not even appear in the Edinburgh Agreement; it did not form a part of the memorandum of understanding. The closest to a "commitment" therefore, by which anyone is honour-bound, is the use of the phrases in the Edinburgh Agreement "a decisive expression of the views of the people in Scotland" and "a result that everyone will respect".

Those two phrases might be taken to imply that this question ought not to be revisited. If a decision is "decisive" it ought not, normally, to be overturned. However, there is no timescale associated with this. On its narrowest reading, this simply requires that the result itself is respected, not that the right to continue to make the argument desists. It does not commit the Scottish Parliament not to revisit this question in the future. That is left, quite simply, to politics. Clearly, though, if you take the view that the Scottish Parliament has had its say, it would then be logical to oppose, irrespective of circumstances, the granting of a section 30 Order, and to accept the political benefit or cost of doing so.

There is no mandate at Holyrood for the holding of another referendum

This is linked to the second argument, which is more of an electoral constitutional one. In 2011 the SNP achieved an overall majority at Holyrood on an explicit manifesto commitment to hold an independence referendum.14 In 2016, although their share of the constituency vote rose, the SNP lost seats, principally off the back of a fall in their list vote share. The Scottish Green Party's share of the vote and of seats rose, however, and between them they constitute a majority of the Scottish Parliament. The combined list vote share of those two parties is higher than that of the pro-Union parties but the reverse is true on the constituency ballot, partly attributable to the fact that the Greens stand few constituency candidates. These factors are potentially relevant as to whether a mandate exists, but must be taken in conjunction with what the manifestos said, since this formed part of the basis of the (accepted) claim that there was a mandate the last time around.

The SNP manifesto in 2016 stated:
"We believe that independence offers the best future for Scotland. However, Scotland will only become independent when a majority of people in Scotland choose that future in a democratic referendum – it will not happen just because the SNP wants it to, or because there is an SNP government.
At the same time if there is a clear demand for a referendum no politician has the right to stand in the way of the people of Scotland to choose their own future. 
We believe that the Scottish Parliament should have the right to hold another referendum if there is clear and sustained evidence that independence has become the preferred option of a majority of the Scottish people – or if there is a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against our will. 
In the next parliament, we will work hard to persuade a majority of the Scottish people that being an independent country is the best option for our country. We will listen to the concerns of people who voted No in 2014 and seek to address them. The case we make will be relevant to the complex world we live in today."

It therefore declares an intention to hold a referendum if one of two things happen. Either:
  • There is "clear and sustained evidence" of a significant change in opinion of the Scottish people from 2014; or
  • There is a "material change in circumstances" to the constitutional settlement that Scotland endorsed in 2014, with the specific example given being an involuntary withdrawal from the EU

The Scottish Green Party manifesto stated:
"Citizens should be able to play a direct role in the legislative process: on presenting a petition signed by an appropriate number of voters, citizens should be able to trigger a vote on important issues of devolved responsibility. As we proposed on the one year anniversary of the Independence Referendum, this is the Scottish Greens’ preferred way of deciding to hold a second referendum on Independence. If a new referendum is to happen, it should come about by the will of the people, and not be driven by calculations of party political advantage. In such a referendum the Scottish Greens will campaign for independence."
In other statements, but not the manifesto, the Green Party indicated that this would include a petition of "up to 1 million people on the electoral register".

It is clear that these commitments are not identical. The Scottish Green Party's commitment also does not make any reference to a "material change in circumstances". However their threshold is potentially not very high. It does not state that a majority of Scots should have to want another referendum, and it does not set any particular threshold; simply that an "appropriate number of voters" ought to be required.

It might be argued that, since those commitments are not made in the same terms, there is no mandate for a second independence referendum, even though it is now clear that the SGP will in fact support the Scottish Government's request that a section 30 Order should once again transfer those powers. It could plausibly be argued that, integral to the civic process the Scottish Greens have outlined, there is a mandate for the devolution of the power to hold a referendum, even if there may not as such be a mandate for the exercise of that power.

The other parties in the chamber stood on a combination of manifesto and other commitments to oppose a second independence referendum. Clearly they have the right, as MSPs, to vote against any transfer of power under section 30 of the Scotland Act, and to oppose the exercise of any power to hold a referendum, and to assume the relevant political burdens for that.

If, however, it is maintained that the political conditions and commitments do not amount to a mandate to seek to hold a referendum, the question surely turns to the question "what does"? Three obvious positions have been suggested:
  • That the SNP must win another outright majority
  • That a majority must be obtained on a clear mandate of all relevant parties
  • That there must be a clear indication the majority of Scots want another referendum

The first of these three positions seems to be constitutionally unsustainable. Holyrood has a voting system that is designed not to allow for majoritarian politics, but if a majority of members are returned from parties that stipulated in their manifestos that they agree on something, that normally gives them in all but name a political mandate to pursue it. The Coalition Government at Westminster frequently relied-upon its Coalition Agreement as the basis for its policies, even though the electorate did not vote for it. If two parties put forward clearly identical or near identical proposals at an election and they constitute a majority between them, that is not obviously any less of a political mandate for that proposition than a single party winning outright.

If anything, two parties may be elected with a higher share of the popular vote between them, lending greater legitimacy, whereas the SNP won an outright majority on a share of the vote well short of 50% in 2011. Their popular mandate in the 2016 election was also higher than that of the UK Government, which after all has a Prime Minister who has not faced the electorate in a General Election and whose party assumed a working majority from only 37% of the popular vote. As far as mandates go, the ground is not particularly strong on the part of any of the parties, save that their MSPs would vote in accordance with their manifesto commitments. This says nothing of what MPs should do at Westminster.

The third option either confuses what it is the SNP and Greens actually said in their manifesto or is constitutionally indefensible as a threshold. Neither of the manifestos constrained the holding of a referendum to a requirement that the majority of Scots want another referendum. If this is to be a threshold, the question must be asked "how should we measure it"? Either this says that a constitutional mandate relies on opinion-polling, in which case it is irrelevant whether or not the SNP have a majority, or it relies on an election explicitly being seen as a proxy for whether or not another referendum should be held. A very similar situation emerged in the Catalan elections of 2015, where Junts Pel Si (Together for Yes) formed a coalition as a proxy for the constitutional question in overt terms, and alongside another pro-independence party secured the majority of seats, though off a large minority of the popular vote. Clearly the Catalan situation has its own challenges in a different constitutional context, however.

On balance, the second of the three approaches is the most sustainable for those making this argument if it is to be accepted at all. This could lead to an explicit commitment in both the SNP and Green manifestos to hold a second independence referendum in 2021, though clearly this would be after Brexit is intended to have taken effect. Alternatively, it could lead to the SNP taking steps to trigger an extraordinary general election under the terms of the Scotland Act, to establish such a mandate before then.

It would be inappropriate to hold a referendum before the Brexit terms are known/Brexit has happened

The first of these two is, actually, the stated position of the First Minister. This comes with a caveat, however, that the referendum must not happen so late as to prevent Scotland from being able to control its own fate. It is questionable whether those two stipulations are compatible with one another given the tight timescale for Brexit negotiations.

There is an arguable case that the terms and consequences of Brexit will not be apparent by the beginning of her proposed timeframe. It might even be argued that to hold a referendum during this period would be unduly disruptive Brexit talks and/or create an unacceptable lack of clarity as to what voters were in fact voting for.

In those circumstances, the UK Government and/or opposition parties at Holyrood may seek to delay this timetable at least until after Brexit has taken effect (at the moment, scheduled for no later than April 2019) if not later still. They could do this either by refusing a section 30 Order until that stage, or granting one but stipulating a minimum waiting period rather than just a power expiry date, as compared to last time. How plausible it would be to insist against delay beyond Brexit itself is a political question, but one affected by constitutional concerns. If it were perceived to have the effect of essentially refusing to allow a referendum in the lifetime either of this UK or Scottish Parliamentary session, that might be a more controversial justification than if it were simply to push this referendum towards either the latter part of the First Minister's timetable or slightly beyond it into the latter part of 2019.

Other Considerations

The question whether the referendum should be held is, however, a separate one from what the terms should be on which it is held. I have already addressed, in part, the question of timing, but there are other timing related issues. The main other timing point to raise is that the UK Government may try to insist on a specific date for a referendum. This would represent a significant departure from the basic premise agreed last time in the Edinburgh Agreement, that insofar as a referendum was to take place: "the date of the poll will be for the Scottish Parliament to determine". Clearly though, as a matter of strict law, the Westminster Parliament can attempt to insist on any restriction it pleases, and to accept the political cost associated with that.

Franchise

As for the franchise, since the referendum, the Scottish Parliament's powers have been reformed. Section 3 of the Scotland Act 2016 changes the law so that the Scottish Parliament itself, not merely the Westminster Parliament, has the legislative competence to amend the franchise for its own elections and for local authority elections. In the 2014 referendum, the understanding between the governments was that the franchise for the poll was to be based, first and foremost, on that franchise, though technically the Scottish Parliament was entitled to allow anyone it wished to vote in that referendum.

Insofar as the Westminster Parliament might plausibly have been entitled, constitutionally, to restrict the franchise of a future independence referendum, it would therefore be difficult to see how they could, politically insist on such a restriction the second time around. There are plausibly three areas where this could become contentious (in order of plausibility):
  • Non-Commonwealth/Irish European Union citizens
  • 16 and 17 year-olds
  • Prisoners

Prisoner voting is a general area where there is political hostility, but it is clear that there is no legal obligation to allow prisoners to vote in a secession referendum.15 It would be difficult for Westminster to resist the franchise including 16 and 17 year-olds given that they both actively facilitated the extension of the franchise for Holyrood elections in 2016 and passively permitted that group to vote the first time around. It should be noted, however, that when setting the franchise for the EU referendum, the Westminster Parliament based it upon their own franchise, which does not allow this group to vote.

The most contentious group will be the right to vote of non-Commonwealth/Irish European Union citizens. This is a group that can vote in Holyrood and local elections at the moment but not UK General Elections. They were not permitted to vote in the EU referendum but they did get to vote in the first independence referendum. This group, it has been speculated, will be an important one in a second referendum because of how Brexit affects their apparent incentives.

Given the principle adopted last time was that the baseline for the franchise for a Holyrood referendum should be the Holyrood franchise, and the Scotland Act 2016 gives the Holyrood Parliament control over that franchise (albeit with a supermajority lock to change it) it would be constitutionally contentious for the Westminster government to seek to restrict this aspect of the franchise in a future section 30 order.

Question

The final issue of importance relates to the question asked itself. Some people objected last time to the question asked, on the grounds that the absence of any reference to the United Kingdom made it a "leading" question. It is worth noting that the Electoral Commission rejected this argument when the Scottish Government presented their question last time, the only change they recommended being that rather than "do you believe" Scotland should be an independent country, Yes or No, it should instead be "should" Scotland be an independent country, Yes or No.

I had my own objections to the question, mainly of semantics, that it ought to have been "become" not "be" and it should have been "state" not "country" but the Electoral Commission was clearly of the view that those elements do not affect the "intelligibility" of the question and that people know what they were voting for.

If the Westminster Parliament were to attempt to set the question, rather than simply to insist on a single and binary question as they did last time, this would depart from the norms of the previous agreement. It would be highly contentious for it to do so. There may be certain aspects to the question they want to avoid that are more likely to crop-up this time, however.

They may wish to avoid, for example, a question making any reference to the European Union, or any purported future relationship an independent Scotland would have with the EU, since that is not something that is in the gift of an independent Scotland to guarantee. This is similar to an objection many Canadians raised about the "sovereignty-association" referendum Quebec held in 1995, and explains why the Clarity Act 2000 now says the Canadian Government must not enter into negotiations to give effect to a province's secession if the question is unclear.

In light of the EU referendum's question, there may be political pressure to push for a question phrased in terms of "Remain" and "Leave", if it is (rightly or wrongly) perceived that "Yes" vs "No" has a subconscious effect on voting and campaigning. They may try to insist that reference to the United Kingdom is included in the question.

All of these demands would be politically contentious, given last time, as the Edinburgh Agreement put it, "the wording of the question will be for the Scottish Parliament to determine and will be set out in the Referendum Bill to be introduced by the Scottish Government". It would seem sensible on the part of the Scottish Government to use exactly the same question as last time if Holyrood were given the power again. This would minimise the scope for disagreement or accusations of attempting to "rig" the question.

Parting thoughts

This process is complicated and could get very messy. Last time the referendum relied on a significant amount of goodwill and give-and-take by both governments to ensure a clear legal and fair process would produce a result that the relevant sides were willing to accept. We must, however, be very clear about what the last referendum did and did not commit various actors to, and whether those commitments are legal, constitutional, political, or simply statements of opinion rather than promises at all. I am almost certain that we will hear misinformation from both sides about the constitutional right or otherwise to hold another referendum, and if so on what terms. In those circumstances we must be absolutely clear as to what happened last time and why it was settled the way it was. The last thing Scotland needs is another argument about process. If this question is to be asked again, the substance should be what matters.


1 e.g. section 1 and Schedule 1 of the Northern Ireland Act 1998 and several parts of the European Union Act 2011

2 Whaley v Watson 2000 SC 340

3 section 29(2)(b) and Schedule 5 Part 1 para 1(b) Scotland Act 1998

4 See the speech of Lord Wallace of Tankerness (then Advocate General for Scotland) at the University of Glasgow on 20th January 2012 available here [accessed 14.03.17]

5 Scottish Government (2007) 'Choosing Scotland's Future - A National Conversation' pp33-34 available here [accessed 14.03.17]

6 HL Deb 3 November 1998, vol 594, cols 144-52 available here [accessed 14.03.17]

7 See among others A. Tomkins (2012) 'The Scottish Parliament and the Independence Referendum' UK Constitutional Law Association available here and G. Anderson (et. al.) (2012) 'The Independence Referendum, Legality and the Contested Constitution: Widening the Debate' UK Constitutional Law Association available here [both accessed 14.03.17]

8 Martin and Miller v HMA [2010] UKSC 10

9 Imperial Tobacco v Lord Advocate [2012] CSIH 0009 (Inner House) and [2012] UKSC 61 (UK Supreme Court)

10 Lord Hamilton (Inner House judgment) para 21

11 Lord Hope (Supreme Court) para 43

12 J. Oliva (2014) ‘Catalonia in Spain? The future ahead’ UK Constitutional Law Association available here [accessed 14.03.17]

13 BBC Online (2017) 'Catalan ex-leader Artur Mas banned from office over illegal referendum' available here [accessed 14.03.17]

14 Edinburgh Agreement (2012) available here [accessed 14.03.17]

15 Moohan v Lord Advocate [2014] UKSC 67; see also G. Cowie (2016) 'Prisoners to Devolved Fortune? The Right to Vote and the Scotland Act 2016' UK Constitutional Law Association available here [accessed 14.03.17]

Monday, 13 March 2017

Round 2.0

Nicola Sturgeon announced this morning that, in the absence of evidence of the United Kingdom government making concessions to accommodate the devolved nations in their approach to Brexit negotiations, she intends to hold a second independence referendum between Autumn 2018 and Spring 2019. She has stated she will seek that the UK Parliament should make another section 30 Order, transferring competence to allow the Scottish Parliament to legislate for such a referendum, on essentially the same basis as happened in 2013 ahead of the one in September 2014.

The Scottish Parliament does not, on the face of it, have the legislative competence to hold a referendum. Legislation that "relates to" the "Union of the Kingdoms of Scotland and England" is "not law". The effect of this is that the Scottish Parliament cannot, among other things, use the full electoral register, have a referendum overseen and managed by the Electoral Commission, or authorise or regulate donations and expenditure to facilitate the holding of such a poll.

If a poll took place against that backdrop, it would be very similar to the "non-referendum popular consultation" organised by the Catalan Government in November 2014. Several officials of the Catalan Government have since been brought before the criminal courts on charges of disobeying several constitutional court orders and misusing public funds. That referendum had low turnout, boycotted as it was by the anti-secession side at the urging of, among others, the Partido Popular and the Spanish Government led by it. The result was therefore ignored by the Spanish Government, on putatively constitutional grounds.

Whether Nicola Sturgeon would be prepared to defy the UK Government, and potentially the UK Supreme Court, and hold a referendum or an unofficial poll anyway remains to be seen. In other countries, like Canada, there is not an explicit prohibition on the holding of secession referendums by sub-state governments. Quebec, for example, can unilaterally hold a referendum, but the result only commits the Canadian government to "enter into negotiations to respond to the desire" of the people to secede. This clearly falls far short of a legal obligation to give effect to secession, but allows the people to have their say.

There are two aspects I wish briefly to reflect-on today. One of them is political, and the other is constitutional.

She has called this too soon

Firstly, I think Nicola Sturgeon has made a mistake today. She was half right when she said a referendum should not happen until the terms of Brexit are known but before Scotland is prevented from choosing its own path. The problem here is one of basic chronology. If you hold a referendum in Autumn 2018 or Spring 2019, there simply is not enough time to negotiate the terms of secession from the UK before a Hard Brexit takes effect. Short of unanimous agreement by the Member States, we Scotland will be "dragged out of the EU against our will". There is therefore nothing to be gained, in my view from holding a referendum this soon and potentially it is more likely to create unnecessary uncertainty by mixing the two processes. It would be far smarter to have waited until the Brexit deal actually takes effect, since it will likely take effect before independence regardless before returning to this question at a point when potential accession talks would be more feasible. I think she is more likely to lose a referendum that takes place sooner and as the Quebec experience shows, this really would kill the question for a generation to lose second time around.

Section 30 is just asking for a fight

The second point is that the constitutional position, which insists the Scottish Parliament must get consent to hold a referendum, is itself a flawed one. It sets two governments up against one another, and suggests that, on a more fundamental democratic level, this isn't a decision that the Scottish people are entitled to take for themselves. This reflects a particularly restrictive conception of devolution and of the union itself, and essentially says that the powers of self-government of the Scottish people are at the generous forbearance of Westminster and not ones that exist as of right. It is my belief, and I have argued in my (as of yet, not complete) doctoral thesis, that the UK should have adopted a different approach, granting general competence in this area to the Scottish Parliament, but subjecting it to conditions. We should be borrowing from other ways this issue has been dealt with. This might include minimum waiting periods between referendums (as in the Northern Ireland Act) and higher or discretionary thresholds required depending on the nature of the question asked and the frequency of referendums (borrowing in part from Canada's Clarity Act).

The effect of creating a possible situation in which referendums are denied, or held unconstitutionally, degrades the democratic process. It undermines the ability of political institutions to ensure that referendums are properly regulated and monitored, and it generates a gap between the perceived political legitimacy of processes in the eyes of the people and the constitutional legality of processes. It is also a massive boon to sub-state nationalist movements, which typically see a surge and solidification of support when governmental and judicial institutions are seen to act intransigently towards them. At least if you permanently regulate the terms on which a referendum may be held, that removes partisan vetoes from the equation. It says that the Scottish Parliament must ultimately decide for itself what is the responsible course of action.

We must also learn to separate the holding of referendums from the implementation of their results. The EU referendum shows why this is important, but so does the Reference Re Secession of Quebec. In the absence of governmental consensus, the proper forum to resolve the differences of opinion in relation to secession should be in how the UK responds to the vote to secede and not a quarrel about whether or not the referendum should be allowed to happen. As Stephen Tierney and others have said in the past, one of the biggest strengths of the 2014 Scottish referendum was that it debated substance not process. If our second referendum is to be more like the Catalan one, and less like either the first Scottish one, or the second Quebec one that the Canadian government went out of its way not to prevent happening (despite it arguably being, then, unconstitutional) then that is going to be much less healthy for reconciling the Scottish people after the votes are counted.

No one should want that.

Sunday, 19 February 2017

The Right to Vote after Brexit

Recently, for reasons related to my academic research, I've been reading quite a bit about nationalism and aspects of the so-called "right to secede". As part of that, I've looked at how we make distinctions between, on the one hand, "liberal nationalism" and "ethnic nationalism". This is a politically fraught area, but one that can manifest itself in how we define who "the people" are. When it comes to deciding who has the right to vote, our laws on citizenship are typically the defining factor, but those citizenship laws themselves can say the lot about a nation, the State that contains it, and its nationalism.

Ethnic v Liberal Nationalism

One of the distinctions that constitutional and political theorists draw, when determining whether a nationalist movement and state institutions are "ethnically" or "liberally" nationalist is how they define, or propose to define, the citizenship of their territorial-political society. Among others, philosopher Kai Nielsen1 distinguishes these two by characterising "ethnic" nationalism as one which is based on descent and which is therefore on some levels exclusionary, whereas "liberal" nationalism requires that "anyone who wishes to have full citizenship and be a part of the nation may, at least in principle, do so if they learn its language, history, and customs, swear allegiance to it, and are willing to abide by its laws."

It should be noted that liberal nationalism is not quite the same thing as another idea, that of "civic nationalism" that has dominated the Scottish independence debate. A purely civic nationalism, which Nielsen maintains is an "oxymoron" (and I'm inclined to agree) has no concern for protection of cultural and political institutions because of their origins, a characteristic that clearly does define even the more inclusive forms of political nationalism in places like Scotland, Catalonia and Quebec. Purely civic nationalism is scarcely nationalism at all: as I will explain later that is one of the main aspects of it that is to be commended.

Most sovereign States share elements of both ethnic and liberal aspects of nationalism in their citizenship criteria. Descent is typically used as a baseline for belonging to the nation, but this is supplemented by provisions that allow for people to be "naturalised" as citizens. This usually requires that they have acquired a permanent right to remain under immigration law, and may involve them taking some kind of citizenship test. How easy it is to meet the requirements to become a citizen, however, varies greatly. It is possible that you can live in a country under a series of work-related visas, but never be able fully to participate in its political process and to be involved in making the laws that affect you on a day-to-day basis. In the most classic of senses, non-citizen residents (many but not all of whom can properly be understood as "immigrants") are a second-class of person in many liberal democracies. They enjoy basic legal rights, and basic human rights, but they have no influence over the people who make those laws. They assume all the obligations of citizens without the rights: as our American friends might put it, they face taxation without representation.

Britain is a bit more complicated

The United Kingdom, however, has always had an ambiguous relationship with citizenship and national identity. Although clearly the idea of being "British" is something that exists, it faces both internal and external challenges. Internally you have sub-State nationalisms, and externally you have a kind of internationalist conception of peoples too. There are (especially historically) problematic and imperialistic aspects to this conception, but our laws on citizenship and political participation have been and continue to be defined against the context of the British Empire and quite permissively. We do not simply, for instance, allow those holding what is called "British citizenship" to vote and to stand in our elections; we allow "qualifying Commonwealth citizens" and citizens of the Republic of Ireland so to stand. This Commonwealth identity, often conflated or overlapping with the notion of an Anglosphere, allows anyone holding citizenship of over 50 different countries to participate fully in our politics if they have "indefinite leave to remain" or if for other reasons they do not require leave to remain in Britain. Indefinite leave to remain is not an easy immigration status to acquire (certainly less so than it was before more stringent limits on immigration have been imposed in recent decades on movement from Commonwealth countries) but we do see this kind of reversing of citizenship rights into specific groups of non-citizen permanent residents.

Our membership of the European Union has also added an additional layer of complexity to this issue. Anyone who holds a qualifying national citizenship of an EU Member State has EU citizenship, and therefore has certain rights when they exercise freedom of movement in other countries. This includes limited rights of participation in the European Parliament and "municipal" elections of their host State on the same basis as nationals of that State. EU citizenship is therefore a kind of half-way house between national non-citizenship and citizenship, conferring some but not all of the relevant rights.

Both of these aspects of our citizenship laws are more permissive than many other countries that are widely regarded as "liberal" and "open" societies. In Canada, for instance, the right to vote is circumscribed to Canadian citizens, but their process for naturalisation is fairly permissive and their immigration policies allow for a net migration rate in the region of double that of the United Kingdom.

But in other respects our citizenship laws are anachronistic and adhere far more to the notion of descent than they do a true desire to include all adult participants in our society and communities. The fact that voting rights are extended beyond citizens only to Commonwealth citizens (and Irish citizens who UK law don't even consider to be foreign) in their full form, means that it still excludes others from our process simply because of where they came from. Why does a Maltese national living here have a claim to decide who my MP is, but a French national doesn't? Why does someone with leave to remain from Cameroon get to vote in our elections, but someone from neighbouring Gabon with the same immigration status cannot? These distinctions are completely and utterly arbitrary. There is not even a defence here that this Commonwealth voting status is a reciprocal arrangement; plainly it is not and many other Commonwealth countries do not extend British citizens the right to vote.

Relevance to the current debate

All of this is relevant because our leaving the European Union will require us to carry out some reappraisal of our citizenship laws as they currently exist. We saw the rumblings of this issue already when there was a debate about who should have the right to vote in the European Union referendum. The UK Government insisted, and Parliament acquiesced, that the franchise should be based-upon the franchise that exists for UK General Elections. This is a franchise that excludes a number of people who are eligible to vote in European Elections, devolved elections, and local authority elections, namely European Union citizens who are not also Commonwealth or Irish citizens. It was particularly ironic that a democratic exercise that would have zero effect on the citizenship rights of Sri Lankan citizens, but which would systematically affect the exercise of citizenship rights of hundreds of thousands of Polish citizens, allowed the former, but not the latter, to vote.

Should the UK leave the European Union, the voting rights of EU citizens in devolved and local elections could go with it. There is an added complexity in Scotland, in that the Scottish Parliament is now responsible for its and local government franchises, and would likely be responsible as in 2014 for setting the franchise of any independence referendum. But for Westminster at least there is a question politicians must confront here. Are EU citizens, who presently have rights by virtue of residence in the UK, still to have a place in British political decision-making, including, incidentally, not just the right to vote, but the right to stand for election and to sit as an MSP, MLA, AMs and councillors? Or will they lose these rights? If only some of them will lose these rights, which ones, and how will we distinguish?

It is hard to imagine a position that does not either require an extension of political participation rights to all EU citizens with a minimum residence period in the UK, or which otherwise involves a very explicit attempt to deprive people who live in this country of civic rights they previously exercised.

The Real Debate

If one is to be optimistic, however, this need to confront this issue might just require the UK to confront more squarely and honestly what the basis of political participation is in our country. There are two directions this could go in:

1. We become more restrictive by limiting voting rights to British citizens
  • This would, in my view, be a most retrograde step, but it is one that a worrying number of people seem to be advocating
2. We begin to decouple the right to vote from citizenship 
  • This would involve either bringing EU citizens permanently into some sort of legal status equivalent to Commonwealth citizens, or would involve the removal of a citizenship requirement from the right to vote outright
I firmly take the view that the second of these two directions is the preferable course of action. I have to confess I have never been sympathetic to the idea that citizenship should determine whether or not people have the right to participate in the political process. Even a "liberal nationalism" that says it's okay to exclude certain people if they have not gone through a process to acquire citizenship seems to me to be discriminatory and unfair. To be a truly civic State, one that does not base rights upon descent, requires two things:

1. That all adults bound by the laws of a territory, i.e. those who live in it, can have a role in deciding who gets to make those laws

2. That a country should be as permissive as is possible, and should not discriminate, with respect to who it allows to take up residence in it

If someone has already done enough to satisfy a State that they have the right to live and work or study here, I think it is plainly prejudiced and discriminatory to say that they should have to meet additional hurdles to participate in the civic life of our country than those who happened to be born here or born to the right set of parents.

Put simply, I think it is time for the UK Parliament to remove all references to "qualifying Commonwealth citizens" from the Representation of the People Act and to replace it with a very permissive right to reside stipulation.

If liberals believe in internationalist values, and believe that people should not be defined by their country of origin, or the birthplace of their parents, they should be ramping-up the arguments for this expansion of the franchise. Because if they do not, it could end-up being constrained, going completely against the tide of history. If Theresa May wants to show liberals that her Brexit is about opening Britain up to the world rather than a nascent nativism concerned with the exclusion of those who are "foreign", she should be careful which side of this debate she comes down on.




1 See among other work, K. Nielsen (1998), 'Liberal Nationalism, Liberal Democracies, and Secession', The University of Toronto Law Journal, 48(2), pp. 253-295 available from JSTOR here [accessed 19/02/2017]