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.